Delhi District Court
Shri J.C. Gupta vs (1) M/S Clair Sol System (P) Ltd on 7 January, 2016
IN THE COURT OF MS.NISHA SAXENA: ADJ-03 (EAST)
KARKARDOOMA COURTS, DELHI.
CS No. 215/15 (RBT)
Unique ID No. 02402C0054612009
Shri J.C. Gupta
S/o Late Sh. M.L. Gupta
R/o E-17, Jawahar Park,
Laxmi Nagar, Delhi-110092. ..... Plaintiff
Versus
(1) M/s Clair Sol System (P) Ltd.
C-12, Ground Floor, Aruna Park,
Laxmi Nagar, Delhi-110092
(2)Mr. Rahul Bajpai
Managing Director
M/s Clair Sol System (P) Ltd.
R/o 255, Sector-62,
Gali NITS, Noida, U.P.
..... Defendants
Date of Insititution : 18.02.2009
Date of reserving judgment : 23.12.2015
Date of pronouncement : 07.01.2016
JUDGMENT:-
This is a common judgment disposing of CS No.215/15 and the counter claim filed by the defendant which was not registered separately.
The present suit has been filed by the plaintiff for ejectment, possession, recovery of rent, damages as also future damages for use and occupation and mesne profit with respect to one room / hall at ground floor of property / plot bearing No. 65(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi- 110092, which was let out to the defendants on 01.11.2006, for their business needs. Though the plaintiff claims that defendant stopped paying the rent, the defendant has put up a case that he vacated the premises and CS No.215/15 (RBT) Page 1 of 30 paid rent uptodate, but he was not allowed to remove his generator because of which he suffered damages. A counter claim has been filed by defendant No.1 for damages to the tune of Rs.10,34,000/-, for a decree for recovery of the amount of Rs.1000/- per day as damages till the restoration of generator set and mandatory injunction directing the plaintiff to allow the counter claimant to remove its generator set.
PLAINTIFF'S CASE The plaintiff's case is that the plaintiff is the lawful owner of property i.e. one room / hall situated at ground floor of plot No.65(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi-110092 (shown in red colour in the site plan enclosed); that the plaintiff entered into a lease agreement with the defendants in respect of one room/ hall on the ground floor (back-side) measuring area 8 feet x 18 feet, on the monthly rent of Rs.7000/- per month on 01.11.2006 for a period of two years, which was signed and executed on behalf of the defendants by Shri Sachin Tiwari, Manager (Admn.) of defendants No.1 and 2.
It is alleged the defendants were liable to pay the rent of Rs.7000/- p.m. to the plaintiff as per the lease agreement dated 01.11.2006, with respect to the above said room / hall which was taken on rent by them for the purpose of installation of generator set for their business needs. The defendants stopped paying rent of the above said leased premises w.e.f. 01.08.2007, which was to be paid by them in advance, on or before the 1st day of each English Calender month. Despite repeated requests as well as reminders by the plaintiff, the defendants did not pay any heed. Finding no other alterntaive, on 25.10.2007, the plaintiff sent a legal notice, which was addressed to the defendant No.2 as the defendant No.1 / office was abandoned by the defendants. Despite service of the legal notice, neither the defendants paid the arrears of rent nor vacated the suit premises. The plaintiff, even after sending the legal notice dated 24.10.2007, contacted the CS No.215/15 (RBT) Page 2 of 30 defendant No.2 on telephone several times and requested him to vacate the suit premises and to pay the arrears of rent as per the lease agreement and also demanded Rs.500/- per day as damages w.e.f. the termination of lease till vacation of the premises, but the defendant No.1 instead of making the payment of arrears of rent, threatened and abused him and bluntly told him that he will have to take rounds of the courts to get the premises vacated.
The plaintiff has, therefore, prayed for a decree for ejectment and possession in his favour and against the defendant in respect to one room / hall measuring 8 feet x 18 feet in property bearing No.65(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi-110092. He has further prayed that a decree be passed in his favour and against the defendants for recovery of Rs.21,000/- towards arrears of rent for the month of August, September and October, 2007 as well as damages of Rs.2,25,000/- towards use and occupation w.e.f. 01.11.2007 till 31.01.2009, totalling to an amount of Rs.2,46,000/-. The plaintiff has also prayed for passing an appropriate orders regarding damages and determination of the mesne profit for use and occupation of the aforesaid room / hall after 31.01.2009 and requested that defendants be directed to pay monthly rent of Rs.7000/- p.m. till the pendency of the suit alongwith pendentilite and future interest @ 12% p.a. on the amount due on account of arrears of rent, damages and mesne profits.
DEFENDANT'S CASE The defendants have constested the suit and raised preliminary objections that the the tenancy in question was surrendered by defendant No.1 on 29.07.2007 and in view of that, the present suit for ejectment is not maintainable. It is alleged that the plaintiff has concealed the material facts from this Court and is tyring to mislead the court by misrepresenting the facts of the case and as such, the suit of the plaintiff is liable to be dismissed in view of provisions of Section 41(i) of the Specific Relief Act; that the suit of the plaintiff is bad for mis-joinder of the necessary parties and that the CS No.215/15 (RBT) Page 3 of 30 defendant No.2 has improperly been joined as defendant No.2 in the present suit; that the defendant No.1 has already surrendered the tenancy in question qua the suit property on 29.07.2007, and he has always been and is still ready to remove the generator set from the suit property and as such, the present suit of the plaintiff is liable to be dismissed.
On merits, it is admitted by the defendant that the plaintiff entered into a lease agreement with the defendant No.1 in respect of one room on the ground floor (back side) of Plot No.65(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi-110092, measuring 8 feet x 18 feet on monthly rent of Rs.7000/- on 27.09.2006 for 11 months, but it is denied that the said tenancy was created on 01.11.2006 for a period of two years. It is denied that defendant No.2 was a party to the said tenancy in his personal capacity in any manner. However, it is admitted that lease agreement was signed and executed by Sh. Sachin Tiwari on behalf of defendant No.1. It is admitted that defendant No.1 was liable to pay Rs.7000/- p.m. towards rent during the period of tenancy, but it is denied that defendant No.2 was ever liable to pay any rent to the plaintiff in his personal capacity. It is alleged that the date of executing the lease agreement is 27.09.2006, and there is no lease agreement dated 01.11.2006.
It is submitted that the defendant No.1 had taken the said room on rent and the defendant No.2 in his personal capacity had no concern with the tenancy of the same. It is submitted that the defendant No.1 had regularly been paying the rent to the plaintiff during the tenancy of the suit premises. It is admitted that defendant No.1 had not paid the rent w.e.f. 01.08.2007, because the tenancy of the suit premises was surrendered on 29.07.2007 by defendant No.1 and defendant No.1 had already paid the rent upto 31.07.2007 and hence there is no liability of defendant No.1 to pay any rent w.e.f. 01.08.2007.
It is submitted that when the defendant No.1 surrendered the tenancy CS No.215/15 (RBT) Page 4 of 30 in question on 29.07.2007, there was no liability of defendant No.1 to pay any rent of the suit premises w.e.f. 01.08.2007 and hence, there was no occasion nor any reason for the plaintiff to request or remind the defendant in the month of August 2007. It is alleged that the alleged notice sent to the defendant No.2 under the facts and circumstances of the case, even otherwise was of no conseqauence as the tenancy of the premises in question was surrendered on 29.07.2007 and same was vacated on 29.07.2007, itself and there is no liability of defendant No.1 of any nature, whatsoever, regarding the payment of rent to the plaintiff for the suit premises in question w.e.f. 01.08.2007. It is alleged that no legal notice was served upon defendant No.2.
It is alleged that the plaintiff has concealed the material facts of surrendering the tenancy by defendant No.1 on 29.07.2007. It is further alleged that when the defendant No.1 was removing the generator set from the suit premises on 29.07.2007, the plaintiff with malafide intention forcibly and illegally prevented the representatives of the defendant No.1 from deinstalling and removing the generator set and hence, the plaintff has no right to claim any rent w.e.f. 01.08.2007 as falsely claimed by the plaintiff in the present suit.
COUNTER CLAIM:-
The defendant No.1 has also filed the counter claim for recovery of damages as well as mandatory injunction. In the counter claim it is alleged that claimant / defendant No.1 is a private limited company and is incorporated under the Companies Act-1956; that the defendant No.1 had been running its business of Medical Transcription at premises bearing No.C- 12, Ground Floor, Aruna Park, Laxmi Nagar, Delhi-92 and there was an electricity problem in the area and the defendant No.1 planned to install a generator set to overcome the electricity crisis. Accordingly, defendant No.1 purchased one sound proof 62.5 K.V.A.D.G set on 16.09.2006, but the same CS No.215/15 (RBT) Page 5 of 30 could not be installed at the above said office of defendant No.1 due to scarcity of space therein and he required some premises nearby its office for installation of the said generator set.
On 26.09.2006, the plaintiff let out a room on the ground floor in the property bearing No. 64(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi, to defendant No.1 at a monthly rent of Rs. 7000/- per month for a period of 11 months and the rent was agreed to be paid every month in advance by the 15th day of each English Calender Month. The plaintiff also demanded Rs.7000/- from the defendant No.1 as security. As per the mutual understanding between the plaintiff and defendant No.1, the tenancy of the suit premises started w.e.f. 01.10.2006 and accordingly, defendant No.1 paid Rs.15,000/- to the plaintiff on 27.09.2006 by way of cheque No.484325 in favour of Smt. Hema Gupta wife of plaintiff and the plaintiff handed over the vacant possession of the suit premises to the defendant No.1 on 27.09.2006 itself. Out of the said amount of Rs.15,000/-, Rs.7000/- was adjusted as security and Rs.1000/- towards the use of the said premises from 27.09.2006 to 30.09.2006 and a lease deed was executed on 27.09.2006. On the same day, defendant No.1 brought the generator set at the suit premises and installed the same in the suit premises for properly running its business. It is alleged that on 29.07.2007, defendant No.1 had to shift his business from the suit premises and consequently, he surrendered the tenancy of the suit premises i.e. C-12, Ground Floor, Aruna Park, Laxmi Nagar, Delhi. The last rent was paid by cheque No.170627 for Rs.7000/- for the period from 01.07.2007 to 31.07.2007.
It is further alleged that on 29.07.2007, in the evening, the representatives of defendant No.1, after surrendering the suit premises, brought labour for de-installing and removing the generator set, the plaintiff forcibly and illegaly prevented them from removing the generator set by stating that defendant No.1 should have given two month's advance notice for surrendering the tenancy or he should pay two month's rent to the plaintiff CS No.215/15 (RBT) Page 6 of 30 in lieu of the non-service of the advance notice, before removing the generator set. Consequently, due to apprehension of manhandling and physical assault by the plaintiff, the generator set could not be removed by the representatives of defendant No.1 on 29.07.2007. However, at that time, the plaintiff assured the representatives of defendant No.1 that matter would be settled by sitting across the table on 05.08.2007. It is alleged that defendant No.1 approached the plaintiff several times for settling the matter amicably and also for allowing the defendant No.1 to remove its generator set from the suit premises, but the plaintiff always avoided and postponed the matter on one pretext or the other.
Thereafter, on 29.08.2007, the defendant No.1 sent a notice requesting the plaintiff to allow him to remove the generator set from the suit premises and in case of plaintiff's failure, he would be liable to pay Rs.1000/- per day as damages for illegally depriving defendant No.1 from using its generator set, but the plaintiff has not complied with the notice nor replied to the same. The defendant No.1 ultimately was constrained to purchase a new generator set for running its business which was got financed in September 2007. The defendant No.1 spent about Rs.6,50,000/- on the purchase of new generator set due to the illegal acts of omission and commission on the part of the plaintiff and as such, the plaintiff is liable to pay Rs.1000/- per day towards the damages to the defendant No.1.
It is alleged that the defendant had also obtained Internet Leased Line Connection for properly running its business of Medical Transcription for which an Antenna Tower was also installed on the top roof of the suit property i.e. 65(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi-92, which was earlier owned by one Mr. Sumit Aggarwal. When in May 2005, the said premises were initially obtained on rent for the purpose of installation of antenna tower @ Rs.6000/- p.m., the said Mr. Sumit Aggarwal received the rent from May 2005 to December 2005. Thereafter, Ms. Hema Gupta purchased the said roof including the premises on the top roof, so the defenant / claimant started CS No.215/15 (RBT) Page 7 of 30 paying rent of Rs.6000/- p.m to her from January 2006 for using the premises on the top roof by installing antenna tower and used the same till April 2006 and thereafter the defendant surrendered the tenancy of the said premises of the top roof and took the top roof of the house No.64-A, Vijay Block, Laxmi Nagar, Delhi-110092, owned by one Mr. Arora on rent for installation of antenna tower.
It is further alleged by the defendant that subsequently Smt. Hema Gupta again approached the defendant and offered the premises on the top roof @ Rs.5100/- per month as rent and the defendant surrendered the tenancy of the top roof of Mr. Arora and again took the premises on the top roof owned by Smt. Hema Gupta in property bearing No.65(A), on rent @ Rs.5100/- per month for the purpose of installing antenna tower w.e.f. 01.09.2006 vide lease deed dated 06.09.2006 and also paid a security of Rs.5100/- to Smt. Hema Gupta as per terms and conditions of lease deed. The defendant when shifted its business on 29.07.2007, from C-12, Aruna Park, Laxmi Nagar, Delhi, also surrendered the tenancy of the premises on the top roof which was obtained for the purpose of installing antenna tower. The defendant had paid rent by way of cheque to Smt. Hema Gupta upto June 2007, while the rent for the month of July 2007, was paid by way of adjusting the security amount, which was paid at the time of creating the tenancy of 06.09.2006 as mentioned in para 16 of the lease deed dated 06.09.2006.
It is further alleged that the defendant surrendered the tenancy of the premises on the top roof on 29.07.2007 and the rent upto 31.07.2007 stood paid. The defendant was not liable to pay any rent towards the said premises w.e.f. 01.08.2007. The representatives of the defendant told Smt. Hema Gupta and her husband (the plaintiff herein) at the time of surrendering the tenancy on 29.07.2007, that the antenna tower installed on the premises on the top roof,shall be de-installed and taken away in a day or two by the company providing the internet services. However, Smt. Hema Gupta and CS No.215/15 (RBT) Page 8 of 30 her husband prevented the representatives of the company from de-installing and taking away the antenna tower from the premises on the top roof when they came to de-install and take away the same. The said antenna tower is still standing on the premises on the top roof though the representatives of the company had already disconnected the wires of the internet connection from the said antenna tower. It is further alleged that the rent upto 31.07.2007 had already been paid to Smt. Hema Gupta and after surrendering the tenancy on 29.07.2007, the defendant had no liability to pay any rent to Smt. Hema Gupta w.e.f. 01.08.2007 and in view of the above, Smt. Hema Gupta did not raise any claim of any nature whatsoever in respect of that tenancy against the defendant.
It is further alleged that Smt. Hema Gupta and her husband have illegally retained the said antenna tower as well as generator set. The defendant has further reiterated the averments made in the written statement and denied all the averments made in the plaint by the plaintiff with respect to the generator set and prayed for a decree of Rs.10,34,000/- alongwith pendentelite and future interest @ 18% p.a.till the realization of the amount as well as a decree for the recovery of the amount of damages @ Rs.1000/- per day that may accrue and fall due after filing the present counter claim till the date of restoration of the generator set and a decree for mandatory injunction thereby directing the plaintiff to allow the defendant to remove its generator set from the suit premises i.e. the room of ground floor forming part of Plot No.65(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi-110092.
The plaintiff has filed reply to the counter claim of defendant No.1 wherein he denied all the averments made in the counter claim by the defendant No.1.
ISSUES:-
From the pleadings of the parties, following issues were framed:-CS No.215/15 (RBT) Page 9 of 30
(i) Whether the plaintiff is entitled to recover Rs.21,000/- being arrear of rent for the month of August, September and October, 2007? OPP.
(ii) Whether the plaintiff is also entitled to recover damages to the tune of Rs. 2,25,000/- for a period w.e.f. 01.11.2007 to 31.01.2009? OPP.
(iii) Whether the plaintiff is also entitled to recover Rs.7000/- per month till the vacation of the premises? OPP.
(iv) Whether the plaintiff is entitled to recover any interest? If so, what rate? OPP.
(v) Whether the suit of the plaintiff is without any cause of action? OPD.
(vi) Whether the suit of the plaintiff is bad for mis-joinder of the necessary parties? OPD.
(vii) Whether the defendant has already surrendered the tenancy premises on 29.07.2007? OPD.
(viii) Whether the defendant is entitled to recover Rs.10,34,000/- as damages? OPD.
(ix) Whether the defendant ran away after locking the tenanted premises, much prior to 29.07.2007? OPP.
(x) Relief.
PLAINTIFF'S WITNESSES
PW1 J.C.Gupta (the plaintiff)
The plaintiff has proved his affidavit as Ex.PW-1/A. DOCUMENTS RELIED UPON BY THE PLAINTIFF Mark A Site plan of the suit property Ex.PW-1/1 Original lease deed dated 17.10.2006 Mark B Photocopy of legal notice dated 24.10.2007, sent by the plaintiff to the defendant CS No.215/15 (RBT) Page 10 of 30 Ex.PW1/2 Original postal receipt vide which the legal notice was sent Mark C Certified copy of Writ Petition filed before Hon'ble High Court titled as Sarla Sharma vs BSES Yamuna Power Ltd.
Mark D Photocopy of undertaking given to Sarla
Sharma by Shaleen Vajpayee, brother of
defendant No.2.
DEFENDANT'S WITNESSES
DW1 Shri Rajesh Kumar Yadav, AR of
defendant company M/s Clairsol
Systems Pvt. Ltd.
The DW1 Shri Rajesh Kumar Yadav, AR of defendant's company has proved his affidavit as Ex.DW-1/A. DOCUMENTS RELIED UPON BY THE DEFENDANT Ex.DW1/1 Original authority letter Mark X Photocopy of computer generated invoice dated 16.09.2006 Mark X1 Photocopy of payment detail Mark X2 Copy of legal notice Ex.DW1/2 Original courier receipt Mark X3 Photocopies of invoice dated 26.10.2007 (colly) and 27.10.2007 Mark X4 Photocopy of payment detail Mark X5 Photocopy of lease deed Mark X6 Photocopy of bill of internet service I have heard Ld. Counsels for the plaintiff Sh. Ajay Mehrotra with Mr. Hardeep Singh and Ld. Counsel for the defendants Sh. D.K.Santoshi and scrupulously and meticulously gone through the entire record including the CS No.215/15 (RBT) Page 11 of 30 testimonies, documents proved on record.
ISSUE No.5:-
(v) Whether the suit of the plaintiff is without any cause of action?
OPD.
The plaintiff has averred that the cause of action first arose on 01.08.2007 when the defendants defaulted in making payment of the lease rent, the cause of action again arose when the legal notice dated 24.10.2007 terminating the lease was sent by the plaintiff and received by the defendants. The cause of action is in continuous process because the defendants have neither vacated the room / hall nor have paid the rent arrears of damages.
In his written statement, the defendant has taken the stand that no cause of action ever arose in favour of the plaintiff or against the defendant for filing the present suit. The suit of the plaintiff is without cause of action. However, there is no specific averment as to why the suit of the plaintiff is alleged to be without cause of action. On behalf of the defendant no arguments were addressed on the point that the plaintiff did not have any cause of action, therefore, the defendant has miserably failed to discharge the onus placed upon him. Accordingly, issue No.5 is decided in favour of the plaintiff and against the defendant.
ISSUE No.6:-
(vi) Whether the suit of the plaintiff is bad for misjoinder of the necessary parties? OPD.
In his written statement , the defendant has taken the objection that the plaint is bad for misjoinder of necessary party. The defendant No.2 has CS No.215/15 (RBT) Page 12 of 30 improperly been joined as in the present suit. The defendant No.2 Rahul Vajpayee is the Managing Director of M/s Clairso System Pvt. Ltd. No specific reason given as to why he should not have been joined as a party. The lease agreement Ex.PW1/1 was entered into between the plaintiff on the one hand and on behalf of the defendant it was signed by authorized person of Rahul Vajpayee and the name of Rahul Vajpayee is clearly mentioned on the lease deed Ex.PW1/1.
The defendant has not been able to discharge the burden placed upon him and no arguments were addressed at any point of time that the suit was bad on the ground of misjoinder of the necessary parties. Issue No.6, is, accordingly, decided against the defendant and in favour of the plaintiff.
ISSUE No.9,1,2,3 and 4:-
(ix) Whether the defendant ran away after locking the tenanted premises, much prior to 29.07.2007? OPP.
(i)Whether the plaintiff is entitled to recover Rs.21,000/- being arrear of rent for the month of August, September and October, 2007? OPP.
(ii) Whether the plaintiff is also entitled to recover damages to the tune of Rs. 2,25,000/- for a period w.e.f. 01.11.2007 to 31.01.2009? OPP.
(iii) Whether the plaintiff is also entitled to recover Rs.7000/- per month till the vacation of the premises? OPP.
(iv) Whether the plaintiff is entitled to recover any interest? If so, what rate? OPP.
Issues No.9,1,2,3 and 4 are inter linked and invoke common discussion and therefore, these issues are being dealt with by a conjoint discussion.
The plaintff claims to be the lawful owner of property i.e. one room / hall situated at ground floor of plot No.65(A), Gali No.1, Vijay Block, Laxmi CS No.215/15 (RBT) Page 13 of 30 Nagar, Delhi-110092, as per the site plan Mark A. He entered into a lease agreement with the defendants in respect of the aforesaid property on the monthly rent of Rs.7000/- per month on 01.11.2006, for a period of two years. The lease agreement was signed and executed on behalf of the defendants by Shri Sachin Tiwari, Manager (Admn.) of defendant No.1 and 2. The lease agreement has been proved as Ex.PW-1/1. The lease deed Ex.PW1/1 is showing the signatures of the lessor J.C. Gupta and for lessee Shri Rahul Vajpayee, Director of defendant No.1, someone has signed the deed. Clause (1), (2), (5) and (7) of the lease deed are reproduced herein:-
(1)That the lease has been agreed to for a fixed period of two years commencing from 01.11.2006.
(2)That the Lessee shall pay to the Lessor for the premises the rent of Rs.7000/- (Rupees seven thousand only) per month payable in advance on or before that 1st day of each English Calender month.
(5)That the Lessor / Lessee shall have the option to terminate the lease by giving two month's notice or rent in lieu thereof.
(7)If the Lessee stop the payment of rent or fails to pay the rent and / or any other dues within the stipulated time then the lessor shall have as an exception, option to cancel the lease whereupon it shall be incumbent upon the lessee to destall the Generator at its own cost from the premises and handover possession of the same to the lessor and lessor will be free to initiate legal proceedings for the recovery of all arrears and to evict the lessee.
It is testified by the plaintiff that the defendant stopped paying the rent of the above said lease premises and has not paid the rent w.e.f. 01.08.2007, which was to be paid by them in advance, on or before Ist day of each calender month. On a number of times, the plaintiff requested and reminded the defendant in the month of August 2007 to pay the rent as per the lease deed, but the defendant did not pay any heed. The defendant deliberately and intentionally breached the conditions of the lease agreement by not paying the rent as required and finding no other alternate, the plaintiff sent a CS No.215/15 (RBT) Page 14 of 30 legal notice dated 24.10.2007, as required in law vide registered A/D through his Advocate and said notice was sent on 25.10.2007, which was addressed to defendant No.2 as the defendant No.1 office was abandoned. The legal notice is Mark B and the original postal receipt vide which the legal notice was sent is Ex.PW1/2.
It has been contended by Counsel for the defendant that the legal notice (Mark B) is totally in contrast to the case of the plaintiff. It has been contended by the Counsel for the defendant that the legal notice (Mark B) is referring to the lease deed dated 17.06.2006, whereas the lease deed proved by the plaintiff is dated 17.10.2006. It is also stated that as per the lease deed Ex.PW1/1, the lease agreement was for a fixed period of two years commencing from 01.11.2006, whereas as per legal notice Mark B, it was for a period of 11 months. It has been further submitted that even if it is presumed that it was a typographical error made by Counsel for the plaintiff, however, at no point of time either in the plaint, replication or the affidavit, the plaintiff gave any explanation for the same. The plaintiff is altogether tight lipped regarding different facts being projected by his legal notice dated 24.02.2007.
It is also deposed by PW1 that after sending legal notice dated 24.10.2007, several times the plaintiff requested the defendant to vacate the said premises and to pay the arrears of rent as per lease deed and also demanded Rs.500/- per day as damages w.e.f the termination of the lease till vacation of the premises, but defendant No.1 instead of making the payment of arrears of rent, threatened and abused the plaintiff and bluntly told him that the plaintiff would have to take rounds of the courts to get the premises vacated. The plaintiff has also placed reliance upon the certified copy of the writ petition in the case of Sarla Sharma vs BSES & Anr., which is mark C running from page 1 to 34. Since the certified copy of the order of the court is a public document, therefore, this document will be taken to be an exhibited document. This is a case filed by Smt. Sarla Sharma, a 62 years CS No.215/15 (RBT) Page 15 of 30 old widow lady, who was the owner of property bearing No.C-12, Aruna Park, Laxmi Nagar, Delhi-110092. She rented out the property to Shalin Vajpayee, Director of the defendant No.1. He was running his business there. It is stated by her in her petition filed before the Hon'ble High Court that on 08.06.2007, BSES Yamuna Power Ltd. conducted inspection and found a case of direct theft against Shalin Vajpayee and thereafter the BSES raised a bill dated 13.06.2007 for Rs.5,69,045/-. She has sought directions for BSES to lodge FIR against Shalin Vajpayee, Director of defendant No.1 and effect recovery of dues from him. The plaintiff has also placed reliance upon letter allegedly signed by Shalin Vajpayee wherein he has given an undertaking that within one or two days, he will submit an undertaking to BSES that Mrs. Sarla Sharma will have nothing to pay in connection with the notice of BSES and till then her generator 62.5 KVA would be with Mrs. Sarla Sharma. This document is a photocopy of undertaking given by one of the Directors of defendant No.1. It is not specifically addressed to anyone. The document is a photocopy of the undertaking given by Shalin Vajpayee and has not been exhibited by the plaintiff, therefore, the same cannot be looked into.
Order dated 11.09.2008, of Hon'ble Delhi High Court is as under:-
"I am informed by Ms. Sonia Mathur that respondent No.2 (Shalin Vajpayee) was arrested and released on bail.
Respondent No.2 has deposited the entire amount of Rs.2,80,000/- as full and final settlement of the theft bill. Counsel for BSES Yamuna Power Ltd. stated that no further amount was due in respect of the said bill and nothing would be claimed from the petitioner Sarla Sharma in that regard in future.
In view of the aforesaid, it was directed that the electricity supply of the petitioner should be restored upon the petitioner completing the formalities.CS No.215/15 (RBT) Page 16 of 30
With these directions the petition stands disposed of".
In his cross-examination, PW1 has denied the suggestion that he had handed over the possession of the premises to the defendants on 27.09.2006. He has also denied the suggestion that the agreement was executed for 11 months. In his cross-examination, he has stated that at the time of execution of the lease deed, Shri Sachin Tiwari and Sh. Shaleen Vajpayee were present and Sh. Sachin Tiwari was witness to the lease deed, though in his affidavit PW1 has not stated that the lease deed was signed by Shalin Vajpayee. He stated that the rent agreement was signed and executed on behalf of the defendants by Sachin Tiwari, Manager (Admn.) of defendant No.1 and 2. He has also denied the suggestion that on 29.07.2007, the defendants had handed over the possession of the suit property to him. He did not know exactly till what date the rent was paid by the defendants. The rent was deposited in his account in Oriental Bank of Commerce, Laxmi Nagar. He has placed on record photocopy of his pass book which clearly shows that the rent was paid by the defendant till July 2007. He had issued a notice to the defendants through his Counsel for non payment of rent, but those notices must have been sent in the month of September / October 2007 and he has also placed on record one legal notice dated 24.10.2007 Mark B. He has also denied the suggestion that he did not allow the defendants to lift the generator from his premises. He voluntarily stated that the defendants were found committing theft of electricity and they had given an undertaking regarding the generator.
On behalf of the defendants Shri Rajesh Kumar Yadav, AR of M/s Clairsol System Pvt. Ltd. has been examined. He is an Administrative Executive in the above said company and duly authorized signatory of the defendant company, who has delegated its power to look after the present case and allied resolution and he is well acquainted with the facts and circumstances of the present case. The copy of resolution / authorization dated 09.12.2009 is proved as Ex.DW-1/1.
CS No.215/15 (RBT) Page 17 of 30In his affidavit the entire facts averred in the written statement and the counter claim have been reiterated. He has proved his resolution / authorization letter authorizing him to give statement before the court as Ex.DW1/1. Photocopy of computer generated invoice dated 16.09.2006 for purchase of one sound proof 62.5 K.V.A.D.G. set for a sum of Rs.6,12,700/- is Mark X, however, there is no certificate u/s 65(B) of Evidence Act and it is only a marked document and the same cannot be looked into. Mark X1 is payment schedule, which is showing the payment of rent to Shri J.C.Gupta by cheque bearing No.170627 dated 13.07.2007, Copy of the legal notice to Sh. J.C. Gupta dated 29.08.2007 is mark X2 and the original courier receipt is Mark Ex.DW1/2. The notice dated 29.08.2007 is as under:-
"To Mr.J.C.Gupta, E-17, Jawahar Park, Laxmi Nagar, Delhi.
Sir, We had taken on rent a room in your property, plot No.65(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi-92, for intalling our generator set, on 26.09.2006.
Since, we have shifted our business from the above mentioned property & accordingly had surrendered our tenancy to you on 29.07.07. We were taking away our generator set on 29.07.07 after surrendering the tenancy, but you illegally prevented us from taking away the generator set, there by depriving us from using it. Without the generator set we are handicapped and our work is also suffering immensely due to which we are suffering huge losses.
Please allow us to take away our generator set on any working day, from the above mentioned premises, during the day time or inform us in writing within 15 days as to when we may take away our generator set from your said room. In case of your failure to do the needful you shall be responsible to pay Rs.1000/- day as damages w.e.f. 01.10.2007 for illegally detaining our generator set.
Please inform us accordingly at the earliest in order to avoid the payment of damages.
Thanking you, CS No.215/15 (RBT) Page 18 of 30 Yours sincerely, Shaleen Vajpayee Managing Director Dated:29.08.2007".
Photocopy of invoice dated 26.10.2007 and 27.10.2007 regarding purchase of generator is mark X4, photocopy of the lease deed dated 06.09.2006 is mark X5. This lease deed was executed between Smt. Hema Gupta w/o Sh. J.C. Gupta and M/s Clair Sol Systems Ltd. in respect of the roof top for installing antenna tower.
The witness has stated in his cross-examination that the lease deed Ex.PW1/1 dated 17.10.2006 was not prepared in his presence. He could not identify the signature of Sachin Tiwari on Ex.PW1/1. He stated that he is not aware of registration of any electricity theft case against the defendant with respect to its office at C-12, Aruna Park, Laxmi Nagar, Delhi. He did not know if any FIR was registered against the defendant company and Shalin Vajpayee, Director of the defendant company / counter claimant was sent to jail. He also stated that when the generator set was being removed from the disputed premises, he was present there. The police was not called by Mrs. Sarla Sharma at the time of removal the generator set. He denied the suggestion that Sarla Sharma called the police and Shalin gave an undertaking to Sarla Sharma that generator set would remain with Sarla Sharma till Shalin Vajpayee cleared the electricity charges of BSES. He could not identify the signatures of Shalin Vajpayee on mark D at point A. He did not know if Sarla Sharma filed any writ petition seeking the direction to the BSES to provide an electricity connection to her. He denied the suggestion that the lease was surrendered by the defendant to the plaintiff. The witness appears to ignorant of the material facts of the case and other Directors including defendant No.2 or any other employee who was well conversant with the facts of the case did not come forward to depose before the court.
CS No.215/15 (RBT) Page 19 of 30During the pendency of the proceedings on 23.07.2011, the plaintiff gave a statement that he has no objection if the defendant takes away the generator which is lying in the suit property after breaking the lock on 29.07.2011, in his presence against the proper receipt thereof and he stated that he claims only damages and rent from the defendant. Separate statement of the plaintiff was recorded to this effect. It would be relevant to reproduce the proceedings dated 23.07.2011 and 01.09.2011, which are as under:-
"23.07.2011 The matter is fixed for admission / denial and framing of issues and also consideration on application under Order 39 Rule 1 and 2 CPC filed by the defendant and today on putting in appearance the plaintiff has given the statement that a generator is lying in the suit property and he has no objection if the defendant takes away the said generator from the suit property after breaking the lock on dated 29.07.2011 in his presence against the proper receipt thereof and he has stated that he claims only damages and rent from the defendant. Separate statement of the plaintiff has been recorded to this effect. Ld. Counsel for the defendant has stated at Bar that in view of the statement of the plaintiff recorded today in the court, the application filed by the defendant may be disposed of in the light of the statement of the plaintiff. Accordingly, the application filed by the plaintiff under Order 39 Rle 1 & 2 stands disposed of accordingly. The defendant will be at liberty to take away the generator lying in the suit property after breaking the lock, but in the presence of the plaintiff and the defendant is also directed to give the receipt to the plaintiff at the time of removing of the generator from the suit property on dated 29.07.2011. Since the defendant has not come present and Ld. Counsel for the defendant seeks adjournment, accordingly the matter stands adjourned for admission / denial and framing of issues".
"01.09.2011 CS No.215/15 (RBT) Page 20 of 30 The matter is fixed for admission-denial and framing of issues and today on putting in appearance the ld. Counsel for the plaintiff has filed original lease deed and copy of statement of account and stated that he will supply the copies thereof to the counsel for the defendant today itself. Both the ld. Counsels for the parties have apprised the court that the defendant has removed the generator from the suit property on 29.07.2011. The plaintiff has stated that since 29.07.2011 he is in possession of the suit property as the defendant has removed the generator on that day. The plaintiff has filed the suit for ejectment and possession and recovery of rent and damages. Since the plaintiff has taken the possession of the suit property on dated 29.07.2011, so this relief of ejectment and possession are not left for adjudication".
The defendant was given liberty to take away the generator set from the suit property after breaking the lock in the presence of the plaintiff and plaintiff was also directed to give receipt to the defendant at the time of removal of the generator set from the suit property. The defendant removed the generator set from the suit property on 29.07.2011 and therefore, the plaintiff stated that he was not claiming relief of ejectment and possession as the same was not left for adjudication.
The lease deed Ex. PW1/1 is a non registered document. As regards effect of non registration of document required to be registered, Section 49 of the Indian Registration Act may be seen which reads thus:
Section 49 -
"No document required by section 17(or by any provision of the Transfer of Property Act, 1882) to be registered shall -
a) affect any immovable property comprised therein, or
b) confer any power to adopt, or
c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered (provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in CS No.215/15 (RBT) Page 21 of 30 a suit for specific performance under chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.)"
From the aforesaid section, it is clear that the said section does not say that an unregistered document which requires to be registered, shall not be received in evidence. The only bar is that that such a document cannot be received as evidence of any transaction affecting the property. As a matter of fact, the proviso to Section 49 clearly empowers the courts to admit any unregistered document as evidence of collateral transaction not required to be registered. An unregistered lease deed is admissible to prove the nature and character of possession of the defendant and section 49 of the Registration Act does not come in the way. An unregistered lease deed can be admitted in evidence for collateral purpose. The terms of the lease is not a collateral purpose.
In Duli Chand v/s Devidin second appeal no. 346 of 1964 decided on 6.09.1965 (M.P.) it was stated as follows:
"it is settled law that the document compulsorily registrable, if unregistered is inadmissible in evidence of a transaction affecting immovable property....
xxxxx ..... Collateral purpose is that which is by the side of or distinct from the main purpose. A term of a deed of lease being one of its main purpose, it could not be termed a collateral purpose within the meaning of the proviso to Section 49 of Indian Registration Act.
The law is, therefore, well settled that an unregistered lease deed can be admitted in evidence to prove the collateral transaction. In the Indian Registration Act by Mulla (7 th edition) it has been stated at pages 204 and 205 as under :
"the principle is that the fact of the existence of a particular relationship may be shown by oral evidence, though the terms which governs such relationship appear to be in writing. Thus a tenancy may be proved by oral evidence though there is a lease CS No.215/15 (RBT) Page 22 of 30 which is unregistered. However, rent reserved by an unregistered lease deed cannot be proved by oral evidence for the term of the lease. A landlord, therefore, under an unregistered lease to whom rent is due, cannot recover the rent payable under the lease he is entitled to recover only as for use and occupation, but he may use the unregistered lease for the collateral purposes of ascertaining the fair amount of compensation for use and occupation."
Collateral purpose is that which is by the side of or distinct from the main purpose. In Mulla of the Transfer of Property Act, it is stated that the essential elements of a lease are (i) the parties, (ii) the subject matter or immovable property, (iii) the demise or partial transfer, (iv) the term or period, and (v) the consideration or rent. It is, therefore, clear that the nature and character of possession or the relationship of a landlord and the tenant are purposes which are by the side of or distinct from the main purpose of a lease.
As already stated, the unregistered lease deed cannot be used to prove the terms of the lease. Thus, it cannot be used to show the period of the lease and the rent on which the premises were demised. However, when from the nature of possession and the relationship established between the parties, if a tenancy can be said to be proved, then by virtue of Section 106 of the Transfer of Property Act, a monthly tenancy between the parties can be presumed.
Thus, in the instant case the period of the lease and the terms of the leases are not proved by unregistered lease deed Ex. PW1/1 but looking to the facts and circumstances of the case relationship of landlord and tenant has been established between the parties and thereafter a monthly tenancy can be presumed U/s 106 of the Transfer of Property Act as the tenancy is not with respect to immovable property for agriculture or manufacturing purposes.
The onus is on the plaintiff to show that the defendant ran away after CS No.215/15 (RBT) Page 23 of 30 locking the tenanted premises much prior to 29.07.2007. In the plaint it has been averred that the defendant stopped paying the rent of the above said lease premises and has not paid rent w.e.f. 01.08.2007, which was to be paid by them in advance on or before 1st day of each English Calender month. There is not even a whisper that the defendant ran away after locking the tenanted premises much prior to 29.07.2007. It is an admitted fact between the parties that the suit premises was leased out to the defendant for installing the generator set as the defendants were carrying out business of medical transcription from premises No.C-12, Ground Floor, Aruna Park, Laxmi Nagar, Delhi-92, where the defendant was facing an acute electricity problem due to which the defendant No.1 wanted to install a generator set and due to scarcity of space in the office, they rented out a room on the ground floor in the property bearing Plot No.65(A), Gali No.1, Vijay Block, Laxmi Nagar, Delhi-92.
In the written statement it was the defendant, who disclosed that the tenancy in question was surrendered by defendant No.1 on 29.07.2007 and the defendant has always been ready and willing to remove the generator set from the suit premises. The defendant claimed that they did not pay rent as the tenancy of the suit premises was surrendered on 29.07.2007 by the defendant No.1.
In the replication, for the first time the plaintiff disclosed that he was shocked to find that the defendant locked the rented premises where the generator set was installed by the defendant and thereafter the plaintiff came to know that Smt. Sarla Sharma had filed a writ petition before the Hon'ble High Court and a theft case was registered against the defendant. In the notice mark B it is stated by the plaintiff that the defendant locked the said premises and neither they paid the lease premises rent and arrears nor they vacated the same. In the affidavit Ex.PW-1/A also, the plaintiff has not affirmed that it was the defendant who ran away after locking the rented premises much prior to 29.07.2007. In his cross-examination, he has denied CS No.215/15 (RBT) Page 24 of 30 the suggestion that he did not allow the defendants to lift the generator set from his premises. The defendants were found committing theft of electricity and they gave an undertaking that the generator set will not be removed till they cleared the electricity dues to BSES. Therefore, it has no where been the case of the plaintiff that the defendant ran away after locking the tenanted premises much prior to 29.07.2007. Only in the legal notice Mark B this ground has been taken. However, not much reliance can be placed upon the legal notice as the date of the lease deed as disclosed in the notice Mark B is different from the date on which the lease deed was executed. As per the lease deed Ex.PW1/1, it was executed on 17.10.2006, while in the legal notice the date is mentioned as that of 17.06.2006. Again the lease deed is showing that the lease was for a period of two years commencing from 01.11.2006 while as per the notice Mark B, it is a period of 11 months.
It has been contended by Ld. Counsel for the plaintiff that these are typographical errors and should be overlooked. However, Counsel for the defendant submit that there could not be so many typographical errors in one notice and if such errors had occurred, the plaintiff could have sent another notice rectifying the mistakes. Otherwise also, the lease deed Ex.PW1/1 cannot be looked into due to it being a non-registered document and therefore, the tenancy has to be treated from month to month and the lease deed cannot be looked into for any vital purpose.
The plaintiff has failed to prove its case that the tenancy was for a period of two years and it was the defendant, who ran away after locking the tenanted premises prior to 29.07.2007 and therefore, the plaintiff is not entitled for any relief of arrears of rent, damages or interest. Issue No.9.1,2,3 and 4 are, accordingly, disposed of.
ISSUE No.7:-
(vii) Whether the defendant has already surrendered the tenancy CS No.215/15 (RBT) Page 25 of 30 premises on dated 29.07.2007? OPD.
The defendant filed a counter claim claiming that he surrendered the tenanted premises on 29.07.2007. In the counter claim/ defendant No.1 has taken the stand that on 29.07.2007, the claimant had to shift his business from C-12, Ground Floor, Aruna Park, Laxmi Nagar, Delhi-92 and consequently the defendant No.1 surrendered the tenancy of the premises. The defendant No.1 also surrendered the tenancy of the suit premises due to closure of its business at C-12, Ground Floor, Aruna Park, Laxmi Nagar, Delhi-92. It is claimed by the defendant No.1 that on 29.07.2007, in the evening, the representatives of the defendant No.1 after surrendering the suit premises brought labour for de-installing and removing the generator set from the suit premises, the plaintiff also reached the suit premises and forcibly and illegaly prevented defendant No.1 from removing the generator set from the suit stating that the claimant / defendant should have given two months advance notice for surrending the tenancy or the claimant should pay two months rent to the respondent / plaintiff in lieu of the non service of the notice. Since there was no such term and condition of the tenancy in question , the claimant / defendant refused for the same, but the plaintiff called some muscled men, who intervened by saying that the matter should be resolved by sitting across the table and till that time, generator set would not be removed. Thereafter, the representatives of the claimant / defendant approached the respondent / plaintiff several times for allowing the claimant to remove the generator set, but the plaintiff / respondent always avoided and postponed the matter on one pretext or the other. However, thereafter the defendant on 29.08.2007, issued legal notice Mark X2 to the plaintiff / respondent stating that:
"Since, we have shifted our business from the above mentioned property & accordingly had surrendered our tenancy to you on 29.07.07. We were taking away our generator set on 29.07.07 after surrendering the tenancy, but you illegally prevented us from taking away the generator set, CS No.215/15 (RBT) Page 26 of 30 there by depriving us from using it. Without the generator set we are handicapped and our work is also suffering immensely due to which we are suffering huge losses.
Please allow us to take away our generator set on any working day, from the above mentioned premises, during the day time or inform us in writing within 15 days as to when we may take away our generator set from your said room. In case of your failure to do the needful you shall be responsible to pay Rs.1000/- day as damages w.e.f. 01.10.2007 for illegally detaining our generator set".
The notice was sent through courier on 29.08.2007, the very same day. Though the defendant issued notice to the plaintiff on 29.08.2007, but he never approached the police or the court for the purpose of any relief.
The plaintiff's notice is subsequent to the notice of the defendant. The notice issued by the defendant is dated 29.08.2007, while the plaintiff issued a legal notice only on 24.10.2007, after two months of the ntoice issued by the defendant.
Ld. Counsel for the plaintiff has brought the attention of the court to Mark D, letter written by Shaleen Vajpayee. However, it is a photocopy. It is not clear from the letter to whom it was written wherein he undertook to pay 5.75 lacs with interest (if any) to BSES; that Sarla Sharma will have to pay nothing in connection with the above said notice and till then his generator 62.5 KVA is with Mrs. Sarla Sharma. However, this document cannot be looked into as it is a photocopy and not a proved document. Otherwise also, it does not disclose to whom it addressed nor this letter is a part of the pleadings of the plaintiff that the defendant did not remove the generator set because of the undertaking given by him to Smt. Sarla Sarma in view of the Writ Petition filed by her in the Hon'ble High Court. Therefore, from the CS No.215/15 (RBT) Page 27 of 30 record it is clear that the defendant was willing to surrender the tenancy on 29.07.2007 itself. Issue No.7 is, accordingly, decided in favour of the defendant and against the plaintiff.
ISSUE No.8:-
(viii) Whether the defendant is entitled to recover Rs.10,34,000/- as damages? OPD.
The Board of Resolution Ex.DW1/1 does not say specifically that DW1 Shri Rajesh Kumar Yadav was also authorized to depose before the court in the counter claim filed by the Clairsol System Pvt. Ltd. The extract from the minutes of meeting of Board of Directors of Clairsol System Pvt. Ltd. dated 09.12.2009 Ex.DW1/1 is very vague and general in nature. It has been claimed by the claimant / defendant in the counter claim that the defendant was constrained to purchase a new generator set for running its business which was got financed in September 2007 and invoice dated 27.10.2007 regarding the purchase is Mark X, but the generator set could be installed by the end of October 2007 at the business premises of the claimant at B-61, Sector 65, Noida, U.P. The claimant / defendant had to spend Rs.6,50,000/- on the purchase of new generator set due to illegal acts of omission and commission on the part of the respondent / plaintiff. The respondent / plaintiff as such is liable to pay Rs.1000/- per day to the claimant / defendant for illegally and forcibly retaining the generator set of the claimant/ defendant. However, no document in original has been placed on record. The invoices issued by Asian Engineering Company are Mark X3 collectively. It is not proved from these documents that due to the fact that the counter claimant / defendant was not allowed to remove the generator set from the tenanted premises, they had to purchase a new generator set. There is nothing on record to suggest whether it was purchased by the defendant for their other requirements or it had to be purchased because of non removal of the CS No.215/15 (RBT) Page 28 of 30 generator set from the tenanted premises. A detailed affidavit has been sworn in by the witness Sh. Rajesh Kumar Yadav, however, from his cross- examination he does not even seem to be fully aware about the facts of the case. In his cross-examination, he stated that he had been working with the defendant company since 2002, while the counter claim was filed by the defendant on 31.07.2010. In his cross-examination, he has denied the suggestion that the lease was surrendered by the defendant to the plaintiff. The counter claimant/ defendant has not given any justification on the basis of which they are claiming the damages to the tune of Rs.1000/- per day. The damages i.e. to be awarded by a court is to be reasonable and has to be based on the loss that occurred to the claimant / defendant. In the instant case, though the defendant allegedly vacated / surrendered the premises on 29.07.2007, he was prevented from removal of generator set, but he did not feel it necessary to approach the police / court for any relief.
In the facts and circumstances, in view of the equity and fairness, I am of the view that the defendant is not entitled to recover damages of Rs.10,34,000/-. Issue no.8 is, accordingly, decided against the counter claimant / defendant and in favour of the respondent / plaintiff.
ISSUE No.10 RELIEF:-
The defendant has already vacated the suit premises and the plaintiff is in possession of the same and the defendant has already got the relief of mandatory injunction and has removed the generator set from the suit premisses.
Issues have been decided as per the foregoing discussion. The suit and the counter claim are, accordingly, disposed of leaving the parties to bear their own cost.CS No.215/15 (RBT) Page 29 of 30
Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court
Dated:7th January 2016 (NISHA SAXENA)
Additional District Judge-03
East District, Karkardooma Courts
Delhi.
CS No.215/15 (RBT) Page 30 of 30