Delhi District Court
Sh. Arvind Jain vs Mrs. Sneh Kotwal on 25 January, 2008
1
IN THE COURT OF MS. ASHA MENON, ADJ,
TIS HAZARI, DELHI.
Suit No. : 56/05
1. Sh. Arvind Jain ....PLAINTIFFS
S/o Sh. Mohan Lal Jain
M-55 (Second Floor)
Greater Kailash Part - I
New Delhi - 110048
2. Sh. Ram Kishan Gupta
S/o late Sh. Ved Prakash Gupta
R/o B-7, Greater Kailash Enclave - I
New Delhi
Vs.
1. Mrs. Sneh Kotwal
W/o Sh. Rajinder Kotwal
R/o 65-D, Gautam Nagar
New Delhi - 110049
Also at
c/o Kislay Child Wear
Shop No. 4, Savitri Cinema Complex
Greater Kailash - II
New Delhi - 110048
2. M/s Novex Dry Cleaners
Shop No. 4, Savitri Cinema Complex
Greater Kailash - II
New Delhi - 110048
3. Sh. Rajinder Kotwal
R/o 65-D, Gautam Nagar
New Delhi - 110049
Also at
Shop No. 4, Savitri Cinema Complex
Greater Kailash - II
New Delhi - 110048 ....DEFENDANTS
2
ORDER
This suit has been filed for possession ( ejectment) and recovery of damages.
The plaintiffs, Sh. Arvind Jain and Sh. Ram Kishan Gupta state that they are the owners of the suit premises being shop no. 4, Measuring 202.10 sq. feet situated on the Ground Floor of Savitri Cinema Complex, G. K. II as shown in red in the site plan. It is stated that the suit property was originally alloted by M/s DLF United Ltd. to Sh. Vinod Bhushan Gupta vide allotment letter dated 07.06.1974 and was subsequently transferred to Mrs. Janak Awasthi vide agreement dated 14.09.1976 and sale deed dated 07.05.1979. It is stated that the property was thereafter sold to the plaintiffs by Smt. Janak Awasthi vide sale deed dated 03.11.2004. It is further stated in the plaint that Smt. Janak Awasthi hads let out the suit property to defendant no. 1 Smt. Sneh Kotwal vide rent deed dated 01.05.1978 at a monthly rent of Rs. 500 excluding water and electricity charges w.e.f. 01.12.1977. It is stated that the suit property had been let out to the defendant no. 1 for the purpose of running ready made garment shop/ business under the name and style of M/s Kislay Child Wear and it was further stipulated that in case the defendant no. 1 wanted to start any other business in the suit property the same could be done only 3 with the prior consent in writing of the previous owner / lesser.
In the paint it is alleged that the defendant no. 1 without the prior consent of the lesser/ previous owner and in contravention of the agreed terms and conditions of the tenancy unauthorizedly sub let a sportion of the suit property to defendant no. 2, M/s Novex Dry Cleaners perpetedly under the franchise agreement and another portion to defendant no. 3 Sh. Rajinder Kotwal, husband of defendant no. 1, who was running the business of a real estate agent from the suit premises. It has been stated that the plaintiffs have learnt that the defendant no. 1 was getting more than Rs. 25,000/- per month from the defendants no. 2 & 3 for allowing them to use and occupy the suit property.
It is stated that in view of the material breaches committed by the defendant no. 1 the previous owner/ lesser vide her notice dated 09.07.04 had terminated the tenancy of the defendant no. 1 w.e.f. 31.07.04 and had called upon her to hand over the vacant and peaceful possession of the suit property on 31.07.08 and 01.08.04 failing which the defendants would be considered unauthorized occupants and liable to pay damages at the prevalent market rate of rent of Rs. 400/- per sq. feet per month besides being liable for ejectment. It is stated that the defendant no. 1 sent a reply to this notice 4 disputing the claims of the lesser/previous owner on false and frivolous grounds. It has been stated that subsequent to the transfer of the properties to the plaintiff they also issued a fresh notice dated 21.12.04 calling upon the defendant no. 12 to comply with the previous notice dated 09.07.04. It is stated that once again a reply containing false and frivolous grounds was sent by the defendants.
It is in these circumstances that the plaintiffs have filed the present suit seeking a decree of possession/ejectment, a decree for a sum of Rs. 2,42,520/- towards damages, a decree for pendente lite and future damages @ Rs. 8,0840/- per month or at any higher rate with pendentelite and future interest @ 18% per annum. After due service upon the defendants the defendant no. 1 & 3 have filed a joint written statement whereas the defendant no. 2 preferred not to participate in the proceedings and was therefore set ex-parte vide order dated 16.05.05. In the written statement filed by the defendant 1 & 3 certain preliminary objections have been taken including that the plaint was liable to be rejected as the suit was barred Under Section 50 of the Deli Rent Control Act. It is stated that since the rate of rent in the suit premises was Rs. 700/- per month the suit was not maintainable. It is further submitted that the defendant no. 1 had not committed any breach of the terms of the 5 tenancy agreement and that the defendant no. 1 had merely taken an agency of M/s Novex Pvt. Ltd., Defendant no. 2 and was only an agent of M/s Novex Pvt. Ltd. to accept and deliver garments to be dry cleaned by M/s Novex Pvt. Ltd.. It is stated that it was only after obtaining permission in writing from the land lady Mrs. Janak Awasthi through her attorney Sh. R. M. Awasthy that the defendant no. 1 had entered into the agency agreement dated 17.02.1988 with the defendant no. 2 M/s Novex Pvt. Ltd.
It is further stated that defendant no. 3 had nothing to do with the tenancy of defendant no. 1 and that defendant no. 3 being the husband of defendant no. 1 was merely helping her in her business in her absence and that the allegations of the plaintiffs were false and concocted. It is further stated that the previous owner had never directed the defendant no. 1 to attorn to the plaintiffs despite which when they had tendered the rent to the plaintiffs the plaintiffs had refused to receive the same. It is stated that the previous owner Mrs. Janak Awasthi had received Rs. 25,000/- towards security amount which had not yet been returned. In the circumstances, it was submitted that the plaintiffs were not entitled to any relief and it was prayed that the suit be dismissed.
In the replication the plaintiffs reiterated their case in 6 the plaint alleging that the defendant no. 1 forged the letter alleging the permission had been accorded to her prior to entering into the agency agreement. It is further stated that since the sub tenancy had been unlawfully created the defendant no. 1 was liable for ejectment. It was further stated that the Delhi Rent Control Act was not applicable to the facts of the present case since the defendant no. 1 was receiving an amount of Rs. 25,000/- per month from defendants 2 and 3 for the use and occupation of the suit property which was more than Rs. 3500 per month and therefore the defendant no. 1 was not entitled to any protection under the Delhi Rent control Act. The reliefs prayed for in the plaint have been reiterated in the replication.
Upon the pleadings of the parties the following issues were framed :
1. Whether the present suit is barred by section 50 of the Delhi Rent Control Act as claimed for by the defendants in the preliminary objection no. 1 of their written statement?OPD
2. Whether plaintiffs are entitled to grant of possession as claimed for by them in the present suit?OPP
3. Whether the plaintiffs are entitled to grant of damages in respect of the premises in question if so at what rate and for what period? OPP 7
4. Whether the plaintiffs are entitled to grant of interest if so at what rate and for what period? OPP
5. Relief.
The plaintiff Arvind Jain examined himself as PW-1, Sh. Bharat Mehra was examined as PW-2, Sh. S. P. Gupta was examined as PW-3 and Sh. Chandresh Sharma was examined as PW-4. These are the witnesses of the plaintiffs. On behalf of defendants 1 & 3, defendant no. 3 entered the witness box as DW-1. No other witness has been examined on behalf of the defendants 1 & 3. I have considered the evidence that has come on record and arguments submitted by the ld. Counsel for the plaintiff Sh. Vijay Zaveri and Sh. Anil Sharma, ld counsel for the defendants 1 & 3. I have also considered the cited judgments. The Ld. Counsel for the plaintiff has argued that under clause 4 (b) of the rent deed Ex. PW-1/5 there could have been no change in business without the prior consent of the land lady and that the defendant no. 1 had sub let the portion of the suit premises to defendants 2 & 3 for the business of dry cleaning and real estate/ property dealing. It was submitted that tenancy had been duly terminated by the previous land lord vide notice dated 09.07.04 and by the present plaintiffs on 25.12.04 and therefore the occupation of the defendants was unauthorized. It was submitted that since the defendant no. 1 8 was receiving a sum of Rs. 25,000/- per month from defendant no. 2 and since the concept of rent included rent in kind the rent paid by defendant no. 3 was also more than Rs. 3500/- and therefore the protection of the Delhi Rent Control Act was not available to the defendant no. 1. It was submitted that he commission paid by defendant no. 2 to defendant no. 1 has been brought on record and merely because the word used was commission and the agreement was described as agency agreement it could not be concluded that the defendant no. 1 was merely an agent of the defendant no. 2. The Ld. Counsel submitted that as per various terms of the so called agency agreement it was clear that there was a sub letting of the premises by defendant no. 1 to defendant no. 2. It has been submitted that the words used in the agency agreement are not terms that are used in agency agreement but are common in lease agreements or agreements for transfer of rights in immovable properties and not the words of the so called agency agreement and the only conclusion then that could be drawn would be that there was a subletting at a rent more than Rs. 3,500/-. Therefore, the suit was not barred and the defendant no. 1 was liable for ejectment.
In further arguments it has been submitted that the previous attorney of the previous owner Sh. R. M. Awasthi was a 9 relative of the defendant no. 1 being her brother in law and yet Sh. R. M. Awasthi was not examined in the witness box with regard to the so called permission that has been placed on the record by the defendants no. 1. It has been submitted that therefore there is no proof of valid permission for change in the business being conducted from the suit premises. It has also been submitted that the defendant no. 3 has not placed on record any attorney in his favour executed by defendant no. 1 and in any case there was no reason why defendant no. 1 has not entered the witness box. It is submitted that the deposition of the defendant no. 3 is hearsay evidence which was inadmissible. It has also been submitted that in any case the attorney , if at all defendant no. 3 was to be considered the attorney of the defendant no. 1, could not testify to facts that was within the knowledge of defendant no. 1. Hence it has been submitted that whereas the plaintiffs have established their case the defendants have no evidence to support their claim that they had permission and that there was no subletting. It has been further pointed out that the DW- 1/defendant no. 3 has admitted that the particulars given in the local directory Ex. PW-1/7 and the name board in the photograph gave the correct address which clearly showed that Novex Dry Cleaners and the defendant no. 3 was running 10 his real estate business from the suit shop without any permission from the landlords. Hence it has been submitted that the suit be decreed.
On the other hand the Ld. Counsel for the defendants has submitted that the case fell under Section 14 (1) (B) Delhi Rent Control Act and the suit was not maintainable. It has been submitted that in any case there was no subletting as the defendant no. 1 was merely a franchise of defendant no. 2 and accepting a franchise did not amount to subletting. It was further submitted that the defendant no. 1 retained control over the suit premises therefore even the plea of sub letting was not available to the plaintiffs. It is further submitted that assuming that such a ground was available to the plaintiff he could agitate the same only before the rent controller and not before the Civil Court. Therefore, the Ld. Counsel for the defendants 1 & 3 has prayed that the suit be dismissed.
ISSUES NO. 1 & 2 :
It would be convenient to deal with these two issues together as the same aspect of the evidence would be required to be discussed. It would be only if the plaintiffs have established unlawful subletting at a rent exceeding Rs. 3,500/- that they would be entitled to receive the possession from the defendants by means of the present suit.11
There is no dispute with regard to the fact that defendant no. 1 was inducted as tenant into the suit property being shop no. 4, measuring 202.10 sq. feet situated on the ground floor of Savitri Cinema Complex, G. K. II. There is also no dispute that the premises had been let out to the defendant no. 1, Mrs. Sneh Kotwal by Smt. Janak Awasthi vide rent deed dated 01.05.1978 at monthly rent of Rs. 500/- per month. This rent deed Ex. PW-1/ 5 is not registered, therefore, the tenancy is to be considered as one from month to month The terms of this lease deed cannot be looked into except for collateral purposes. What is collateral purpose has been mentioned and reiterated in the case reported as Modern Food Industries (India) Ltd. Vs I. K. Malik & Ors. 98 (2002) Delhi Law Times 593 (DB).
The case of the plaintiff is that they have become owners of the property on the basis of a sale deed executed by Smt. Janak Awasthi in their favour. The initial allotment letter by DLF to Sh. Vinod Bhushan Gupta has been placed on the record as Ex. PW-1/1. The deed of agreement between the DLF and Smt. Janak Awasthi in respect of suit property is Ex. PW-1/ 2. The sale deed executed by M/s DLF United Ltd. and Smt. Janak Awasthi is Ex. PW-1/ 3. The sale deed executed by Smt. Janak Awasthi in favour of the plaintiff Sh. Arvind Jain and Sh. R. K. 12 Gupta has been placed on the record as PW-1/10. Thus the title of the plaintiffs to the suit property has been fully proved by them. In the sale deed Ex. PW-1/10 there is a mention of the tenancy of the defendant no. 1 with the mention that the same stood terminated vide notice dated 09.07.04 w.e.f. 31.07.04. There is also reference to the right given to the present plaintiff to get the shop vacated and to recover all rent and mesne profits pertaining to the past, present and future from Smt. Sneh Kotwal or any other person who may be in use, occupation thereof. Thus the right to recover not only possession of the suit premises but also the rent and mesne profit has also been transferred by Smt. Janak Awasthi to the present plaintiffs. In other words what the plaintiffs have done is to be seen in continuation with what Smt. Janak Awasthi has done in respect of the suit property.
Thus there is a relationship of land lord and tenant between plaintiffs and defendant no. 1 and defendant no. 1 cannot dispute the claims of ownership of the landlord namely the plaintiffs, even if they had not proved their title, which in any case they have done. What is more the defendant no. 1 claims to have sent rent to the plaintiffs @ Rs. 700 per month vide money orders brought on record as Ex. DW-1/7, for the months of January and February 2005. Thus the defendant no. 1 has 13 also duly attorned to the plaintiffs. It therefore does not lie in her mouth to now dispute the rights of the plaintiffs either in the capacity of landlord or as owners to seek her eviction.
The entire case of the plaintiffs is that contrary to the agreed terms of lease the defendant no. 1 had sublet the premises to defendant no. 2, Novex Dry cleaners who has remained ex-parte and defendant no. 3, Rajinder Kotwal her husband. It is submitted that the defendant no. 1 had also contrary to the terms of the agreement changed the nature of the business. Though the rent deed Ex. PW-1/5 is not a registered document the defendants have not disputed the same and have placed on record the copy of the said rent agreement as Ex. DW-1/ 3. In this document Dr. R. M. Awasthi is described as the attorney of the land lady Smt. Janak Awasthi. That the tenancy had been created for the purpose of running a business of ready made garments is part of the terms of the lease is not in dispute. That is why the defendants 1 & 3 have taken the stand that the permission of the lady lady Smt. Janak Awashi had been obtained through her attorney before what they described as the agency with Novex Dry cleaners was commenced. Therefore it can be taken as undisputed that the tenancy even if treated as month to month on account of the unregistered lease agreement deed incorporate a limitation to 14 the use to which the premises could be put. Also, the rent deed can still be looked into for collateral purposes to consider this clause.ss The defendant no. 1 was therefore required to continue with the business of ready made garments and that too in the name and style of M/s Kislay Child Wear. Change in business was possible only with the prior permission of the land lady Smt. Janak Awasthi or her attorney Dr. R. M. Awasthi.
The onus was completely upon the defendant no. 1 to prove that she had the permission of the land lady through her attorney to change the nature of the business. However, neither has she nor has the erstwhile attorney of Smt. Janak Awasthi, Dr. R. M. Awasthi entered the witness box to testify with regard to the consent/permission for the change in business. The best evidence has not come before the Court. The plaintiffs have disputed the so called consent brought on the record by DW-1, being defendant no. 3, as a forged and fabricated document. During his examination in chief DW-1 has merely stated that the copy of the letter of no objection issued by Dr. R. M. Awasthi thereby giving the consent to defendant no. 1 to enter into tenancy agreement with M/s Novex Pvt. Ltd. Is Ex. DW-1/ 2. The plaintiff Sh. Arvind jain in his affidavit in para no. 6 has specifically stated that the defendant no. 1 never took any permission in writing from the previous owner/ land 15 lady or through her attorney prior to entering into any arrangement with M/s Novex Pvt. Ltd. and the defendant no. 3. It was also stated specifically that the previous owner/land lady or her attorney have never granted the permission when the rent was enhanced from Rs. 500 to Rs. 700. It was specifically averred in the affidavit that the defendant no. 1 has filed a forged and fabricated letter dated 02.02.1988 whereby the alleged permission is said to have been accorded and that the forgery had been committed by correlating it with the date of increase in the rent from Rs. 500 to Rs. 700/- and the date of alleged agency agreement dated 14.02.1988. In respect of these specific averments in the affidavit it has to be noted that not a single question has been put in cross examination even to suggest that it was falsely stated that there had been a forgery carried out by defendant no. 1 with regard to the letter dated 02.02.1988. These allegations totally stand uncontroverted in cross examination of the plaintiff Sh. Arvind Jain as PW-1. What is more, in the affidavit of Sh. Rajinder Kotwal, DW-1/Defendant no. 3 there is nothing to again dispute these allegations of a fabricated document reflecting permission. On the other hand, during the cross examination of DW-1 questions have been asked which cast doubt on the authenticity of this so called permission Ex. DW-1/ 2. It was specifically put to the witness that 16 this document Ex. DW-1/ 2 / permission had been forged and fabricated by defendant no. 1 in collusion with her relative Dr. R. M. Awasthi. It has been admitted by DW-1 that Sh. Awashi was the brother-in-law of the defendant no.1. The possibility of collusion between the relatives in preparing a document to suit the interest of defendant no. 1 cannot be overlooked particularly in view of the facts that this person Sh. Awashi could have been summoned and examined by the defendants 1 & 3 to controvert and disprove the allegations of forgery and fabrication of the permission Ex. DW-1/ 2, but he was neither produced or examined in this regard. DW-1 has admitted that they were aware of the present address of Sh. Awashi who was brother in law of the defendant no. 1. He admitted that Sh. Awasthi was his co brother and they were on visiting terms. He also admitted that even after the filing of the present suit he had met Sh. Awashi. Yet admittedly he took no steps to either summon Smt. Janak Awasthi or Dr. R. M. Awasthi to examine them as witnesses in the present suit. They would have been the best persons, particularly Dr. R. M. Awasthi, who could have proved beyond doubt that infact such permission had been granted by Smt. Janak Awasthi through her attorney vide Ex. DW-1/ 2.
When the best person to testify in respect of the fact 17 has not appeared before the Court an adverse inference would have to be drawn regarding the authenticity of Ex. DW- 1/ 2. Added to that is the absence of any challenge to the assertion of the plaintiff Arvind Jain as PW-1 that the said document was a forged and fabricated one created to suit the defendant's case. Thus no weight can be attached to Ex. DW- 1/ 2 and it has to be held that the change in business brought about in the suit property has been without the consent of the previous owner/land land and there has been a violation of the terms on which the premises were leased out to the defendant no. 1.
It may be observed that the defendants have not proved that the original business of ready made garments is actually continuing in the suit premises along with dry cleaning. The evidence rather shows that the original business is no longer in existence. From the photograph placed on the record and marked as DW-1/X1 the name of Novex Dry Cleaners and details of sale purchase etc. of properties appears to be the business that is being conducted from the suit premises. There is no indication that the ready made garments were being sold under the name and style of M/s Kislay Child Wear.
The next question is whether this change in business from children's ready made garments to dry cleaning and 18 property dealing amounted to subletting. The defendants 1 & 3 have claimed that there was no subletting as defendant no. 3 was the husband of defendant no. 1 and was merely assisting her in her business while with regard to defendant no. 2 there was only an agency agreement. However, the Ld. Counsel for the plaintiff has relied on the judgment of Justice B. C. Mishra to submit that where commercial property was involved a spouse could not carry out a separate business claiming a right as a spouse. This was in contradistinction to a residential premises where a spouse of a tenant had equal rights of residence and there could be no subletting to a spouse.
As regards defendant no. 3, no doubt he is the husband of defendant no. 1. However, his testimony as DW-1 does not suffice to meet the case of the plaintiffs that he was not doing business from the suit premises. His answers in cross examination are completely evasive. He claims to be providing consultancy services from his residence ''aswell as on my mobile phone''.He claimed that he was rendering consultancy services only to his friends. The witness was categoric in his refusal to produce the documents issued under the Shops and Establishment Act. Admittedly he has not informed the MCD that he was providing consultancy services at his residence. He claimed that he had no source of income though he had filed 19 income tax returns reflecting gross income of Rs. 80,000/-. He claimed that he did not raise any bills when he offered advise. And yet he admitted that the ''photograph mark DW-1/X1 had been taken from outside my shop''. (emphasis added) This photograph which is thus not disputed reflects on one side the following words ''sale purchase renting residential commerical, kothis, plots, flats, farms, South Delhi. Phone 29212301, 9810013802, 9811186689''.
This shows that the business of property dealing and real estate was being carried out from the shop in question that is the suit shop otherwise there would have been further information regarding the person who was to be contacted on these phone numbers. Therefore, the words above reproduced are not intended as an advertisement of a general kind but actually offers information about the services provided from the spot.
Again while denying that the business card Ex.PW-1/6 did not belong to him the defendant no. 3 admitted that the particulars mentioned therein regarding the address and the phone numbers were correct. He further admitted that the phone numbers mentioned in the said card were installed at shop no. 4, Savitri Cinema Complex which is the suit shop and had been let out to defendant no. 1. Now, in Ex. PW-1/6 the name mentioned is of defendant no. 3, Rajinder Kotwal and the 20 name of the business is mentioned as Nirmala Property Consultants. DW-1/ Defendant no. 3 has admitted in his cross examination that defendant no. 1 was not a partner of M/s Nirmala Property Consultants and that she had nothing to do with the said business. When there is no further information divulged by the defendants regarding the ownership of M/s Nirmala Property Consultants and there is no disclosure of who is carrying on that business from the suit premises the only conclusion that can be arrived at is that the business was that of DW1/defendant no. 3 and that an effort was being made to supress material facts as clearly that would have gone against the case of the defendants 1 & 3.
The plaintiff has placed on record the Yellow Line Home Guide as Ex PW-1/7 to submit that the defendant no. 3 was running his business from the suit premises and he has advertised the same. The defendant no. 3 as DW-1 has not controverted this piece of evidence. It is indeed also curious that while defendant no. 3 advertised his business the defendant no. 1 who claimed that she was running the business of ready made garments has chosen not to advertise in this guide book under the head of ''Readymade Garments - Retailers''.This would strengthen the conclusion that in fact the defendant no. 1 was conducting no business from the suit 21 property pertaining to ready made garments for which the premises had been let out to her and rather it was her husband defendant no. 3 who was running his business of property dealing and real estate consultancy from the suit premises.
Thus it is fully established, following the judgment of the Hon'bleDelhi High Court that the defendant no. 1 has sublet the premises to her husband defendant no. 3. It is obvious that in order to protect their interest they have not disclosed the rent payable either in cash or in kind. But that would not suffice to come to any other conclusion i.e. other than that the premises have been sublet by defendant no. 1 to defendant no. 3.
Turning to the subletting to defendant no. 2 M/s Novex Dry Cleaners, the defendant no. 1 has claimed that the agreement was merely an agency agreement. The agency agreements have been Ex. DW-1/5 & 6. As held by the Hon'ble Delhi High Court in Sh. Atul Gupta & Ors. Vs Delhi Cloth and General Mills Company Ltd. & Ors. 1991 (1) RCJ 281 an agency agreement will not create subtenancy. However, what is material is the terms of the agency agreement. In that case the Company had a right to reenter the premises and therefore it was held that there was no parting with possession. In the present case the terms of the agency agreement need to be considered to determine whether the document was merely an 22 agency agreement or was a camouflaged lease agreement.
The first striking aspect of the so called agency agreement is that it is between two parties which included their heirs, successors, executors, administrators, legal representatives and assigns. This is not usual in an agency agreement since an agent is specifically appointed by the Principal and there can be no automatic inheritance of agency rights or an automatic substitution of the principal on its demise.
Though in the deed it is mentioned that the legal possession of the premises was to remain with the second party being M/s Kislay Child Wear the other terms show that the control of the business to be run from the premises was completely in the hands of the first party i.e. M/s Novex Pvt. Ltd. The sign board was to be supplied by M/s Novex Pvt. Ltd. and it was only with the permission of M/s Novex Pvt. Ltd. that defendant no. 1 could place her own name on the sign board indicating agency. This sign board was the property of M/s Novex Pvt. Ltd. and on termination was to be returned to M/s Novex Pvt. Ltd. by defendant no. 1. Further the rates for processing the garments were fixed by M/s Novex Pvt. Ltd.. Garments collected by defendant no. 1 could not be given to any other dry cleaner and it was M/s Novex Pvt. Ltd. who was to collect and delivery back the articles booked for processing. 23 M/s Novex Pvt. Ltd. was also entitled to enter into the premises of the defendant no. 1 to inspect the sale books and booking voucher books etc. and to check the stock of the garments. The sale book and the booking voucher books were to be also supplied by M/s Novex Pvt. Ltd. The rates were to be fixed by M/s Novex Pvt. Ltd. for the processing of the articles. The method used for cleaning was also to be determined by M/s Novex Pvt. Ltd.
In short the business of defendant no. 1 being Ms. Kislay Child Wear and the defendant no. 1, Mrs. S. Kotwal had no role to play in the running of the business of M/s Novex Pvt. Ltd. ''A fixed discount was also payable to the defendant no. 1 / M/s Kislay Child Wear''.It is difficult to believe that it was a commission that was being paid to the defendant no. 1 and that what was being given to her was not a payment for the use of premises which were under her tenancy. For doing nothing the defendant no. 1 could not have been receiving any commission. If all that was being done was collection of garments for M/s Novex Pvt. Ltd. in which the authorized representative of M/s Novex Pvt. Ltd. had complete say and control, the only conclusion that can be drawn is that under the guise of commission rent for use of the premises as a collection centre of M/s Novex Pvt. Ltd. was being paid.
24
Thus in respect of both the defendant no. 2 as well as defendant no. 3 it is clear that the defendant no. 1 has sublet the suit premises. The businesses being conducted from the suit premises are not hers and she has no control over the conduct of either the business of dry cleaning or of real estate consultancy / property dealing.
The defendants have not disputed the details of payments made to defendant no. 1 by defendant no. 2. The plaintiffs had summoned a witness from M/s Novex Pvt. Ltd. PW- 4 Sh. Ravi Shankar who placed on record Ex. PW-4/1 reflecting the amounts paid to the defendant no. 1 between 01.04.02 to 31.03.05. These reflect that payments to her have ranged above 3,500/-. As regards defendant no. 3 though he was a real estate consultant he denied that an identical shop would fetch a monthly rent of Rs. 50,000 to Rs. 60,000 in the area in question. At the same time he did not chose to himself disclose what similar property could command as rent. Obviously it suited him not to make such a disclosure. The plaintiffs however examination PW-2 Sh. Bharat Mehra Asst. Vice President Citi Bank and PW-3 Sh. S. P. Gupta, Property consultant to submit that the rent commanded was Rs. 57,500/- or Rs. 300 to 400 per sq. feet. The plaintiff have also examined PW-5 Sh. Chandresh Sharma who brought the rent agreement with HSBC Bank 25 reflecting payment of rent @ Rs. 51,750/- per month.
There is one more aspects. The best person who could depose in respect of the tenancy, the permission and the agency agreement, claimed by the defendants was Defendant no. 1. Despite being available at Delhi, she has kept away from the witness box. Defendant no. 1 claims to be a business woman, not a pardanashein. Therefore her disinclination to depose in Court and be subjected to cross examination is a fact that has to be held against her. Defendant no. 3 could not have deposed on her behalf even if he had been her power of attorney. Here he has been examined only as a witness and his testimony, even he admits was hearsay (AIR 2005 SC439).
Following the judgment of the Hon'ble Delhi High Court in P. S. Jain Company Ltd. Vs. Atma Ram Properties (P) Ltd. & Ors. when it is clear that the subtenant was paying rent at a rate higher than Rs. 3,500/- the tenant defendant no. 1 cannot be accorded the protection of the Delhi Rent Control Act Under Section 50.
There is no dispute that the tenancy had been terminated by notices Ex. PW-1/8 and Ex. PW-1/11. The reference to the termination of the tenancy has been made in the sale deed Ex. PW-1/10 executed by Smt. Janak Awasthi in 26 favour of the plaintiffs. The notice had been issued on her behalf on 09.07.04. The plaintiffs have also issued a notice 21.12.04. The tenancy being month to month the notices have been served in terms of section 106 of Transfer of Property Act. Thus the tenancy has been validly terminated.
In the light of the foregoing discussion therefore the issues nos. 1 & 2 are answered in favour of the plaintiffs and against the defendants.
ISSUE No. 3 & 4
The defendant no. 3 / DW-1 was the best person being property consultant to have established with complete authority the rate of rent that similar property could command. No doubt the plaintiff'switness PW-3 did not produce any documentary proof of the rental of the similar property situated in G.K. II . But his statement that the location was prime location has not been challenged. Though PW-4, Chandresh Sharma did not produce the original documents being the rent agreement between HSBC Bank and one Smt. Suman Seth, there is no occasion to doubt the authenticity of his statement that the HSBC Bank was paying a sum of Rs. 51750/- per month for shop no. 3, Savitiri Cinema Complex, G.K. with an area of 202.1 sq. feet, because DW-1 has himself admitted in his cross examination that on either side of the suit shop M/s Citi Bank 27 and HSBC Bank had their ATMs installed in the adjoining shops. PW-4, Chandresh Sharma was employed with HSBC, Noida as banking Assistant and is not a stranger who could have no knowledge of the rent being paid by HSBC Bank for the premises under its tenancy.
As regards the letter Ex. PW-2/1, no doubt the witness being an Asst. Vice President with the Citi Bank admitted that there was no formal lease deed executed for the renewed period. But that would be a matter relevant in any case between Citi bank and its land lord. For the purposes of ascertaining the market value of the suit property the statement of this witness that the rent w.e.f. 01.06.04 to 31.05.07 paid by the Citi Bank for similar premises was Rs. 57,500/- can be accepted.
The plaintiff in the suit has prayed for damages @ Rs. 400/- per sq. feet however the evidence does not justify that rate. Nevertheless on the evidence that has come on record the plaintiffs are entitled to seek damages for the use & occupation of the premises by the defendant after the termination of the tenancy if not w.e.f. 09.07.2004 atleast w.e.f. 21.12.04. On the basis of the amounts at which adjoining properties have been taken on rent and giving due regard to the fact that those tenants are highly successful commercial 28 establishments I hold that while the plaintiffs cannot be awarded damages they have prayed for, they are entitled to receive damages for use and occupation of premises @ Rs. 25,000/- per month and I award this amount to the plaintiffs w.e.f. 01.01.05 till the date that actual possession is received. The plaintiffs are also found entitled to interest @ 4 % per annum on the damages awarded w.e.f. 01.01.05 till realization.
These two issues are answered accordingly in favour of the plaintiffs and against the defendants. RELIEF The plaintiffs are thus found entitled to a decree of possession against the defendant in respect of Shop No. 4, Savitri Cinema Complex, G. K. II, N. D. as shown in red in site plan Ex. PW-1/4 alongwith damages @ Rs. 25,000/- per month w.e.f. 01.01.05 till date of recovery of possession alongwith interest @ 4% per annum on this amount till date of realization and vacation. Costs of the suit are also awarded. The suit of the plaintiff is accordingly decreed. Decree sheet be prepared and file be consigned to record room.
Announced in the open court
on this 25th day of January, 2008 (ASHA MENON)
ADDL. DISTRICT JUDGE,
DELHI.
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