Delhi District Court
Mrs. Satwant Kaur vs Modipon Limited on 17 May, 2010
1
IN THE COURT OF SH. LOVLEEN, CIVIL JUDGE: DISTRICT CENTRAL-04: DELHI.
Suit no.346/06
IN THE MATTER OF:
Mrs. Satwant Kaur,
Wd/o late Sh. Avtar Singh
1090/13 Naliwala,
Hardhian Singh Road,
Karol Bagh, New Delhi-11005. ..... PLAINTIFF
VERSUS
1. Modipon Limited
(through its Pricipal Officer/
Managing Director)
Modinagar, U.P.
Also at:
XVI/1090, Hardhian Singh Road,
Gali No.13, Naiwala,
Karol Bagh, New Delhi-110005.
2. Modipon Fibers Company
(A Division of Modipur Ltd.)
having their Regd. Office at
Modinagar-201204 (U.P)
Also at:
XVI/1090, Hardhian Singh Road,
Gali No.13, Naiwala,
Karol Bagh, New Delhi-110005. ....DEFENDANTS
Date of institution: 07.07.1999
Date on which judgment was reserved: 17.05.2010
Date of pronouncement of the judgment:17.05.2010
SUIT FOR POSSESSION AND RECOVERY AND ALSO FOR PERMANENT
INJUNCTION.
JUDGEMENT
1. The plaintiffs has filed the present suit for possession and recovery and also for permanent injunction.
Suit No. 346/06 Page 1 of 13 2
2. The case of the plaintiff as per plaint is that the plaintiff is the recorded owner of the ground floor of the premises bearing no.1090/13, Naiwala, Hardhian singh Road, Karol Bagh, New Delhi-110005 (hereinafter stated as "Suit property").; that the defendant no.1 had taken the ground floor portion of the constructed suit property from the husband of the plaintiff who was the erstwhile owner of the property by virtue of the Lease Deed dt. 13.5.1977 executed between the parties on a monthly rent of RS.1800/- exclusive of other charges. ; that the defendant no.2 is the division of defendant no.1 and the defendant no.2 has been making the payments to the husband of the plaintiff and after his death to the plaintiff by means of crossed cheques issued by the defendants.; that the tenancy of the defendants was according to the English calendar month and commenced on every 16th of every english calender month and ends on the 15th of succeeding month.; that the rent of the premises was earlier Rs.1800/- and was increased from time to time and the last rent paid of the premises was Rs.3600/-; that the Sh. Avtar Singh has died on 3.9.1997 and has left behind a registered Will dt. 1.8.1997 in favour of the plaintiff.; that after the death of Sh. Avtar Singh the defendants have accepted the plaintiff as their owner/landlady of the property and the rent of the tenanted premises stands paid by the defendants to the plaintiff upto 31.7.98.; that the defendants have violated the terms of the lease deed and accordingly the plaintiff has terminated the tenancy of the defendants by serving a legal notice dt. 27.3.1999 issued by the counsel of the plaintiff, thereby directing the defendants to vacate the premises by the midnight of 15.5.1999 but to no avail. Hence, the present suit has been filed.
Suit No. 346/06 Page 2 of 13 3
3. Written Statement of the defendants alongwith counter claim of the defendant no.1 has been filed wherein it is admitted that the plaintiff is the landlady of the defendant no.1, however, it is denied that the plaintiff is the recorded owner. It is further admitted that a lease deed dt. 13.5.1977 was executed between the parties and it is also admitted that the defendant no.2 is the division of defendant no.1. It is submitted that the plaintiff had in the plaint as originally filed, not even impleaded the defendant no.1 as a party and the plaintiff upon realising that it is the defendant no.1( and not the defendant no.2) who is the tenant in the premises had behind the back of the defendants got the defendant no.1 impleaded and amended the plaint. It is further submitted that the defendant no.1 agreed to increase the rent to Rs.3600/- pm and which increase would take the matter outside the purview of the provisions of DRC Act, 1958 on the reciprocal promise the plaintiff herein is bound to create/extend the tenancy in favour of the defendant no.1 from 1.8.1995 to 31 July 1998 and thereafter from time to time. Rest of the averments of the plaint have been denied by the defendant.
4. Replication was filed on behalf of plaintiff to the written statement of defendants and counter claim of the defendant no.1 in which the averments made in the written statement have been denied and averments made in the plaint have been reaffirmed.
5. After the completion of pleadings of parties, the following issues were framed by my Ld. Predecessor on 24.11.2003 as under:-
1. Whether the plaintiff is entitled for decree for possession as prayed? OPP.
2. Whether the plaintiff is entitled for decree of recovery of Rs.63,545/-? OPP.Suit No. 346/06 Page 3 of 13 4
3. Whether the plaintiff is entitled for decree of permanent injunction against defendant as prayed? OPP.
4. Whether the plaintiff is entitled for future damage/compensation @Rs.20,000/-
as prayed? OPP
5. Whether the plaintiff is entitled for interest @15% p.a as prayed for? OPP
6. Whether the valid legal notice has been served upon defendants. Thereby terminating the tenancy? OPP
7. Whether defendant no.1 is entitled for a decree against plaintiff for specific performance of the agreement to lease/agreement of extension/rental of lease as prayed? OPD
8. Whether counter claim of defendant no.1 is liable to be rejected for want of requisited court fee? OPP.
9. Relief.
6. In support of his case, the plaintiff has examined herself as PW-1 and has got proved certain documents on record i.e. The letter dt. 10.7.1998 as Ex PW1/6, Notice dt. 27.3.1999 and the corresponding postal receipts as Ex PW1/7 to Ex PW1/11, the original the certificate posting as Ex PW1/11A, Original AD cards as Ex PW1/12 & PW1/13, the site plan as Ex PW1/14, the carbon copy of notice dt.12.2.2001 and postal receipts, AD card as Ex PW1/15 to PW1/20 (the Ex PW1/1 to Ex PW1/5 & Ex PW1/21 were de-exhibited as the originals of the same were not on record).
On the other hand, the defendant have examined Sh. J.K. VAshisht as DW1. On 07.07.2009, the defendant failed to lead remaining defendant's evidence despite last & final opportunity, therefore, on the same the defendant's evidence was closed and the matter was fixed for final arguments.
Suit No. 346/06 Page 4 of 13 5
7. I have heard the ld. counsel for the plaintiff and the defendant and perused the material on record. My issuewise findings are as under:-
8. ISSUE No.6 Whether the valid legal notice has been served upon defendants. Thereby terminating the tenancy? OPP The onus to prove this issue is upon the plaintiff. The case of the plaintiff is that the tenancy of the defendant has been terminated by way of legal notice dt. 27.3.1999 which is Ex PW1/7 as the said legal notice has been sent to and served upon the defendants as demonstrated by regd. AD, receipts which are Ex PW1/8, Ex PW1/9, Ex PW1/10 & Ex PW1/11, the courier receipt is Ex PW1/12 and the ADs received back served is Ex PW1/13. On the other hand, the defendant has contested the claim of the plaintiff by denying that they have received any notice sent by the plaintiff for termination of the tenancy particularly the Ex PW1/7. I have perused the Ex PW1/12, Ex PW1/13 and the same bear the seal and signature of the defendant no.2. Although the witness DW1 has denied in his cross examination that the above seals and signatures do not belong to the defendant no.2 but his testimony does not inspire the confidence of this Court as he has stated that the seal & signature cannot be admitted by him to belong to defendant no.2 nor can it be denied also. The witness DW1 further states that one Sh. J.P. Bhalla was working with defendant no.2. The signatures of the said J.P. Bhalla are present on Ex PW1/12 & Ex PW1/13. So this Court has no hesitation to hold that the above notice Ex PW1/7 was served upon the defendant. The other ground taken by the defendant no.1 to challenge the validity of Ex PW1/7 is that the said notice is addressed to defendant no.2 only while the plaintiff himself Suit No. 346/06 Page 5 of 13 6 admits that the defendant no.1 is the only tenant in the suit premises. This contention raised by the defendant is of no consequence as the defendant no.1 himself admits that the defendant no.2 is a division of defendant no.1 and has no separate legal entity of its own. Even if the contention of the defendant no.1 is upheld for the sake of argument, then the defendant no.1 would find itself on the wrong side of law, as the defendant no.1 has failed to state as to how they placed defendant no.2 in possession of the suit property. As per the amended Section 106 (2) of Transfer of Property Act the period of 15 days shall commence from the date of service of notice upon the lessee. I have taken the notice period, as stipulated in Section 106 of Transfer of Property Act to be 15 days because the original lease deed Ex PW1/1 and the document Ex PW1/D1, whereby the defendant no.1 states that the tenancy was extended for a period of three years from 01.08.1995 to 31.07.1998, are not registered. As such I have no other option but to hold that the tenancy was on a month to month basis and a notice of 15 days was required to be given to terminate the tenancy/lease deed. The other ground taken by the defendant no.1 w.r.t the non specifying of the identity of suit premises is of no consequence as the defendant no.1 has admitted the original lease deed Ex PW1/1 and the notice Ex PW1/7 to be also in respect of the same premises in his WS. The remaining objections raised by the defendants regarding the invalidity of notice on the ground of wrongly stating the rate of rent cannot be made a ground to defeat the present suit as the rate of rent is not a question which may have any bearing on the fate of the present case as the present case is beyond the scope of Section 50 of the Delhi Rent Control Act. Moreover, the hair splitting of the notice to terminate tenancy cannot be allowed. The defendant has raised another objection to the effect that the termination of the tenancy is impliedly vague as the notice Ex PW1/7 has directed the defendant no.1 to pay rent @3600/- per Suit No. 346/06 Page 6 of 13 7 month w.e.f 01.08.1998 thereby extending the lease impliedly. In my opinion the same is also of no consequence as Ld. Counsel for the plaintiff has stated that the same pertains to the arrears of rent from 01.08.1998 till the date of the notice Ex PW1/7. In view of my above observations, the present issue is decided in favour of plaintiff and against the defendants.
9. ISSUE No.1 &7.
Whether the plaintiff is entitled for decree for possession as prayed? OPP. Whether defendant no.1 is entitled for a decree against plaintiff for specific performance of the agreement to lease/agreement of extension/rental of lease as prayed? OPD The onus to prove issue no.1 is upon the plaintiff and the onus to prove issue no.7 is upon the defendant no.1. In the present case, it is admitted by both the parties that defendant no.1 is a tenant under the plaintiff and the rate of rent is more than Rs.3500/- per month and hence, the present suit is maintainable in the Civil Court as the bar created u/S 50 of the DRC Act has been surpassed. I have already held that the plaintiff has validly terminated the tenancy of the defendant no.1. The only ground taken by defendant no.1 to resist the present suit for possession and for recovery of mesne profits, is that the husband of the plaintiff i.e erstwhile landlord of the defendant had executed one document Ex PW1/D1 whereby the erstwhile landlord i.e. husband of the plaintiff had contracted with defendant no.2 that after the expiry of tenancy period extended upto 31.7.1998 (by way of Ex PW1/D1), the lease of the suit property shall be extended for a further period of three years perpetually at an increase of 20% in the then existing rate of rent. The contention of the defendant no.1 is that once the husband of the plaintiff had executed the agreement which is Ex PW1/D1 whereby the lease of the suit property was to be extended every three years Suit No. 346/06 Page 7 of 13 8 with increase of 20% for the rate of rent, then, the present plaintiff is also bound by the same agreement as the plaintiff has merely stepped into the shoes of her deceased husband i.e. erstwhile landlord. If the present plaintiff resiles from the agreement contained in the document Ex PW1/D1, then the defendants shall be no longer bound by the terms contained therein and the rate of rent will come below the threshold limit (under DRC Act) of Rs.3500/- per month and whereupon the present suit would be rendered non maintainable before a Civil Court. I am not inclined to accept the above argument raised by Ld. Counsel for defendant no.1 as once the rent stood increased to more than Rs.3500/- per month then it cannot be in the mouth of either of the parties that if the opposite party fails to honour its commitment the status-quo-ante would be automatically restored. The aggrieved party, in my opinion, would be entitled to specific performance of the said contract or seek damages in respect of the losses suffered on account of non performance of terms agreed by the parties to a contract. In the present case the defendant no.1 has preferred to seek the specific performance of the contract, the terms of which are contained in the Ex PW1/D1. At the very outset it is revealed that the said document Ex PW1/D1 refers to the original lease deed dt. 13.5.1977. It is admitted by Ld. Counsel for the parties that the original lease deed Ex PW1/1 is un-registered but is for a term exceeding one year and is, therefore, hit by Section 107 of the Transfer of Property Act which provides that a lease of immovable property for any term exceeding one year can be made only by registered instrument. If we consider the document Ex PW1/D1 itself as lease deed then the same is also hit by the Section 107 of Transfer of Property Act as the same is creating an interest in a immovable property for a period of more than one year Section 49 of the Registration Act clearly stipulates that the document Ex PW1/D1 is of no effect. In this regard, I am supported by the law laid down by the Delhi High Court Suit No. 346/06 Page 8 of 13 9 at para no.4 of the judgement passed in "Amar Chand Talwar & ors Vs M/s Export Promotion Council for handicrafts" (1999-1) PLR 59 Vol. CXXI which is reproduced as under:-
It is an admitted position that on 03.06.1986 the suit premises were leased out to the defendant at a monthly rent of Rs.16,500/- for a period of three years vide unregistered lease deed dt. 03.06.1986. According to the lease agreement, the lease was renewable for a further period of three years with the mutual consent of the parties by paying 15% increased rent. It is also undisputed that the rent last paid by the defendant was Rs.25,094/- per month. Ld. Counsel for the defendant contested that since the defendant has been paying increased rent to the plaintiffs, the contract of tenancy stands renewed till 03.06.1996 and that being so, the notice dt. 07.01.1995 in invalid and the present suit for eviction is premature. I am unable to accept the aforesaid submissions of the Ld. Counsel. Section 107 of the Transfer of Property Act postulates that a lease of immovable property from year-to-year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be monthly lease. In view of the said provisions, since the lease was for a period exceeding one year, it could only have been ex-month-
to-month". The unregistered lease deed dt. 03.06.1986 is clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the defendant. The proviso to Section 49 of the Registration Act is not applicable in the present case in as much as the terms of a lease are not a "collateral purpose" within its meaning Satish Yadav V Govardhan Das, AIR 1984 SC 143.
Thus, the lease deed dt. 03.06.1986 is inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term for want of registration under Section 17 of the Registration Act. Consequently, I find and hold that in the instant case, the lease shall be deemed to be lease from month-to-month, terminable, on the part of either lessor or lessee by 15 days' notice under Section 106 of the Transfer of Property Act expiring with the end of a month of the tenancy.
The facts in the present case are identical to the facts of the above mentioned citation. From the above, it is clear that the defendant is not entitled to specific performance of the agreement in Ex PW1/D1 as the same is incapable of creating a valid lease for a renewed term for want of registration U/s 17 of the Suit No. 346/06 Page 9 of 13 10 Registration Act. I have already held that the notice of termination of tenancy have been served upon the defendants. Nothing else remain to be adjudicated in respect of the prayer of the possession of the suit premises made by the plaintiff. Hence, the plaintiff is entitled to a decree for possession. Both the issues are decided accordingly. 10. ISSUE No.2 & 4
Whether the plaintiff is entitled for decree of recovery of Rs.63,545/-? OPP. Whether the plaintiff is entitled for future damage/compensation @Rs.20,000/- as prayed? OPP Both the issues are inter-connected and have been taken up together. The onus to prove these issues is upon the plaintiff. The plaintiff has sought the recovery of Rs.63,545/- from the defendants which comprises of rent @ Rs.3600/- per month from 01.08.1998 to 15.05.1999 plus interest @15%, damages for illegal use and occupation @Rs.20,000/- per month from 16.05.1999 to 15.06.1999 and notice charges @RS.5500/-. The witness PW1/plaintiff has deposed on the same lines as in the plaint and has not been cross examined by the defendant qua her claim regarding the rent @3600/- per month for 01.08.1998 to 15.05.1999 and in my opinion the same leads to no other inference but an admission of the claim of the plaintiff. In this regard, I am supported by the observations in AIR 1958 Punjab 440 wherein it has been held categorically that;
a party should put to each of his opponents witness so much of his case as concerns that particular witness. If no such questions are put, the courts presume that the witnesses account has been accepted.
The plaintiff further claim damages for illegal use and occupation of the suit premises after the termination of the tenancy by the defendants since 16.05.1999 @RS.20000/- per month but she has not placed any material on record to substantiate Suit No. 346/06 Page 10 of 13 11 her claim. However, this Court has ample powers to take a judicial notice of the increase in rents in the areas located in and around Delhi as observed by the Hon'ble High Court in Bakshi Sac Dev Vs Concord 1993 RLR 563, S. Kumar Vs G.R. Kathparia 1999 RLR 114. Admittedly, the suit premises have been let out for commercial purposes and is situated in Karol Bagh, Delhi which is a commercial centre, so, the rent which could be fetched by similarly situated premises could not be less than double the agreed rent for every month as such the plaintiff is entitled to damages/mesne profits from the defendants @Rs.7,200/- per month from 16.05.1999. This issue is decided accordingly in favour of the plaintiff and against the defendant.
11. ISSUE No.5 Whether the plaintiff is entitled for interest @15% p.a as prayed for? OPP The onus to prove this issue is upon the plaintiff. The plaintiff has sought interest @15% per annum on the amounts as prayed under issue no.2 & 4. I have already decided the quantum of the recovery which is legally admissible to the plaintiff in my discussion held above. The rate of interest claimed by plaintiff appears to be unconscionable and hence the plaintiff is entitled to interest @6% per annum on the amounts to which the plaintiff is entitled. This issue is decided accordingly in favour of the plaintiff and against the defendant.
12. ISSUE No.3 Whether the plaintiff is entitled for decree of permanent injunction against defendant as prayed? OPP.
The onus to prove this issue is upon the plaintiff. The plaintiff has stated in his claim as well as her evidence by way of affidavit that the defendant came to Suit No. 346/06 Page 11 of 13 12 know in the third week of the June 1999 that the defendant wants to part with the possession of the suit premises. The defendants have failed to address the above claim of the plaintiff in his WS as well as his evidence and in view of the settled principles of Civil jurisprudence that the opposite party should address the averments of the plaintiff substantially and the absence of the same amounts to an admission . Being a tenant the defendants have no right to part with the possession of the suit premises except in favour of the plaintiff who happens to be their landlord. As such the present issue is decided in favour of the plaintiff and against the defendant.
13. ISSUE No.8 Whether counter claim of defendant no.1 is liable to be rejected for want of requisited court fee? OPP.
The onus to prove this issue is on the plaintiff. The defendant has annexed court fees after valuing their counter claim for the specific performance of the terms contained in Ex PW1/D1 at Rs.51,840/-. As per Section 7 (x) of the Court Fees Act the court fees required to be paid in the suit for specific performance of contract of lease, is to be according to the aggregate amount of the fine or premium (if any) and of the rent agreed to be paid during the first year of the term. As per the case of the defendant the rate of rent was to be Rs.4320/- per month from 01.08.1998 till 31.07.2001 i.e. the term alleged by defendant no.1 to have been agreed between the parties. The defendant has correctly valued the relief of specific performance claimed by them according to the rate of rent for the first year of the above mentioned term and the plaintiff has not produced anything contrary to the averment/contention of the defendant no.1 and hence, the present issue is decided against the plaintiff and in favour of the defendant.
Suit No. 346/06 Page 12 of 13 13
14. RELIEF In the light of above discussion, the suit of the plaintiff is decreed and a decree for possession in respect of ground floor portion of the property bearing no.1090/13 (part of Kh. No.1094) Naiwala, Hardhian Singh Road, Karol Bagh, New Delhi-5 as shown in red colour in the site plan Ex PW1/14 is passed in favour of the plaintiff and against the defendants. Defendants are directed to hand over the peaceful and vacant possession of the suit property to the plaintiff within two weeks from today. A decree for recovery of Rs.34,200/- alongwith pendentelite and furture interest @ 6% p.a. from the filing of the present suit till its realisation is passed in favour of the plaintiff and against the defendant. A decree of permanent injunction is passed in favour of the plaintiff and against the defendants whereby the defendant company through their Directors and employees are restrained from parting with the possession of the ground floor portion of property bearing no.1090/13 (part of Kh. No.1094) Naiwala, Hardhian Singh Road, Karol Bagh, New Delhi-5 except in accordance with this judgement. A further decree for future damages/compensation is also passed in favour of the plaintiff and against the defendant @7200/- per month alongiwth pendentelite and future interest @6% p.a from 16.05.1999 till the delivery of peaceful and vacant possession of the suit property to the plaintiff.
Decree sheet be accordingly prepared. File be consigned to record room Announced in the open court today i.e. on 17.05.2010 (LOVLEEN) (Total pages 1 to 13 ) CJ/DistrictCentral/Delhi-04/17.05.2010 Suit No. 346/06 Page 13 of 13 14 Suit no. 346/06 17.05.2010 Present: Counsel for the parties.
Put up for judgement at 4:00 pm.
(LOVLEEN)
CJ/District Central/Delhi-04/17.05.2010
At 4:00 pm.
Present: Plaintiff in person.
None for defendant.
Vide my separate judgement of even date announced and dictated in the open court, the suit of the plaintiff is decreed and a decree for possession in respect of ground floor portion of the property bearing no.1090/13 (part of Kh. No.1094) Naiwala, Hardhian Singh Road, Karol Bagh, New Delhi-5 as shown in red colour in the site plan Ex PW1/14 is passed in favour of the plaintiff and against the defendants. Defendants are directed to hand over the peaceful and vacant possession of the suit property to the plaintiff within two weeks from today. A decree for recovery of Rs.34,200/- alongwith pendentelite and furture interest @ 6% p.a. from the filing of the present suit till its realisation is passed in favour of the plaintiff and against the defendant. A decree of permanent injunction is passed in favour of the plaintiff and against the defendants whereby the defendant company through their Directors and employees are restrained from parting with the possession of the ground floor portion of property bearing no.1090/13 (part of Kh. No.1094) Naiwala, Hardhian Singh Road, Karol Bagh, New Delhi-5 except in accordance with this judgement. A further decree Suit No. 346/06 Page 14 of 13 15 for future damages/compensation is also passed in favour of the plaintiff and against the defendant @7200/- per month alongiwth pendentelite and future interest @6% p.a from 16.05.1999 till the delivery of peaceful and vacant possession of the suit property to the plaintiff.
Decree sheet be accordingly prepared. File be consigned to record room (LOVLEEN) CJ/District Central/Delhi-04/17.05.2010 Suit No. 346/06 Page 15 of 13