Delhi District Court
Mala Verma vs Driplex Water Engineering Ltd on 25 November, 2024
Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
IN THE COURT OF SH. JITEN MEHRA:DISTRICT JUDGE
10:TIS HAZARI COURTS: DELHI.
CS DJ NO.615999/2016 (Misc. DJ no.679/24)
CNR NO.DLCT01-000657-2008
In the matter of:
MALA VERMA
W/o Mr. Madan Verma,
R/o C-68, Kanta Kunj,
Friends Colony (E)
New Delhi - 110065.
......Plaintiff
Versus
DRIPLEX WATER ENGINEERING LTD
Second Floor,
Plot No.2, Panchsheel Shopping Centre,
New Delhi.
Having its registered office at:
Driplex House,
1, Panchsheel Community Centre,
New Delhi - 110017
Through its Executive Director (Commercial)
Sh. D. D. Goyal
.....Defendants
Date of institution: 20.12.2008
Date on which reserved for judgment: 15.10.2024
Date of decision : 22.10.2024
Date of arithmetic correction: 25.11.2024
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF
RENT, DAMAGES/MESNE PROFITS, MANDATORY
INJUNCTION AND PERMANENT INJUNCTION
CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.1/38
Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
JUDGMENT:
1. The plaintiff has filed the present suit against the defendant company seeking recover of possession, arrears of rent, damages/mesne profits, mandatory injunction and permanent injunction.
Background of the dispute between the parties
2. It is pertinent to mention a few relevant facts at the outset. The defendant company herein had entered into two registered lease deeds dated 30.9.2003 with one Sh. Kuldip Singh, who at that time was the owner of the leased premises with respect to the 1st Floor and 2nd Floor of Plot no.2, Panchsheel Shopping Centre, New Delhi (also known as Panchsheel Community Centre) for a term of five years commencing from 01.10.2003. As per clause 1 of the said lease deed, the rent for the first three years, i.e. from 01.10.2003 to 30.9.2006 was Rs. 30,000/- per month. The rent for the fourth and fifth year from 01.10.2006 till 30.9.2008 was Rs.34,500/- per month. Further, the defendant also deposited a sum of Rs.90,000/- with the plaintiff as an interest free security for each lease deed.
CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.2/38
Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
3. While the said lease deeds were subsisting, the plaintiff Mrs. Mala Verma, purchased the leased premises from Sh.Kuldip Singh and intimated the defendant with respect to the same as well vide her letter dated 19.08.2007.
4. As per the defendant company, vide order dated 13.01.2004 passed by the Debt Recovery Tribunal-II, Delhi (DRT) in R.C. no.27/2001 in the matter titled as Corporation Bank vs Ajit Amin International, the defendant was directed to deposit the rent with respect to both the floors with the Tribunal at monthly intervals, which they deposited till August, 2007. Later, vide order dated 10.8.2007, the DRT directed that the future rent was to be paid to the owners of the suit property and the defendant company started paying the rent to the plaintiff and the rent deposited was also directed to be released.
5. The plaintiff sent a legal notice dated 25.6.2008 to the defendant company seeking to terminate the lease deed with effect from 30.9.2008, which was replied to vide reply dated 18.8.2008, and vide a separate letter dated 19.8.2008 the CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.3/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. defendant company sought to renew the lease deed for a further period of 5 years w.e.f. 01.10.2008 till 30.9.2013 as per clause 10 of the lease deed. The demand of the defendant company to renew the lease deed was rejected by the plaintiff vide her letter dated 27.8.2008.
6. The defendant company however, continued to occupy both the floors of the premises and filed a suit for specific performance of clause 10 of the registered lease deed dated 30.9.2003 and directing the plaintiff to execute a fresh lease deed with respect to the suit premises for the period 01.10.2008 till 30.9.2013, bearing CS DJ no.130/2008 and titled as Driplex Water Engineering Ltd vs Mala Verma.
7. In the meanwhile, the plaintiff herein filed two suits against the defendant company for recovery of possession and rent and mesne profits. The present suit bearing CS DJ no.15999/2016 has been filed by the plaintiff with respect to the second floor of the suit property, whereas the suit bearing no.CS DJ no.15988/2016 has been filed by the plaintiff with respect to CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.4/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. the first floor of the suit property.
8. On 19.10.2013, the defendant company handed over the possession of both the floors of the suit property to the plaintiff and sought to withdraw the suit, with liberty to raise the contentions in the plaint in the suits filed by the plaintiff. The suit of the defendant company bearing CS DJ No.130/2008 was accordingly dismissed as withdrawn on 19.10.2013, with the direction that the file be retained till the disposal of the suits filed by the plaintiff.
Plaintiff's version as per the plaint:
9. The plaintiff has filed the present suit for recovery of possession, arrears of rent, damages/mesne profits and mandatory injunction against the defendant company on 22.12.2008. However, in view of the handover of the possession of the suit property by the defendant company to the plaintiff on 19.10.2013, the relief of possession of the suit property and mandatory has been rendered infructuous and only dispute between the parties which remains is with respect to arrears of CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.5/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. rent and mesne profits.
10. The plaintiff states that she is the owner of the suit property having purchased the same from the erstwhile owner Sh. Kuldip Singh. The suit property had been let out by the erstwhile owner to the defendant company by virtue of a registered lease deed dated 30.9.2003 for a period of five years commencing from 01.10.2003 till 30.9.2008, with rent being Rs.34,500/- per month.
11. The plaintiff claimed the defendant company made extensive structural changes to the premises causing substantial damage. The defendant company also trespassed onto the terrace without having any right to do so. The defendant company was also stated to have stored hazardous/inflammable materials. Further, as per the lease deed, with effect from 01.10.2006, the rent was enhanced from Rs.30,000/- to Rs.34,500/- per month, however the defendant company continued to pay only Rs.30,000/- per month. The said lease deed has stood terminated on account of efflux of time on 30.9.2008 and the defendant CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.6/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. company, at the time of filing of the suit, is on a month to month tenancy. Even otherwise, the plaintiff sent a legal notice dated 25.6.2008 terminating the lease deed with effect from 30.9.2008 midnight.
12. Apart from possession of the suit property, the plaintiff claims an amount of Rs.4,500/- per month as arrears of rent for 10 months for the period 01.10.2006 till 31.7.2007 amounting to Rs.45,000/-. The plaintiff also claims mesne profits from the defendant company from 01.10.2008 till the possession of the suit premises is handed over @ Rs.150/- per sq ft. per month, which is the prevailing rate of rent in the locality amounting to Rs.1,44,000/- per month.
Defendant's version as per the written statement
13. In the preliminary objections, the defendant relied on clause 10 of the lease agreement with respect to right of renewal of the lease deed. In the reply on merits, the defendant company raised no dispute with respect to the plaintiff's ownership of the suit property, however denied that the site plan filed by the CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.7/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. plaintiff depicted the correct position. The execution of the registered lease deed dated 30.9.2003 was also admitted and a right of renewal of the under clause 10 was asserted and it was averred that the lease deed is liable to be renewed for a further period of five years from 01.10.2008 till 30.9.2013.
14. It was further averred that the defendant had a right to carry out structural changes as per the lease deed itself and the lessor had no right to raise any objections. The defendant company denied that it had stored any hazardous/inflammable material The defendant company stated that it had carried out all such changes/modifications in 2003 itself, much prior to the plaintiff's purchase of the suit property on 26.6.2007. The defendant company also claimed to have installed a generator on the terrace as permitted by the lease deed. The defendant company denied that its tenancy was on a month to month basis or that it was in arrears of any rent. The receipt of the legal notice dated 25.6.2008 was admitted, but its contents were stated to be false. The defendant company prayed for dismissal of the suit with exemplary costs in its favour.
CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.8/38
Mala Verma Vs. M/s. Driplex Water Engineering Ltd. Replication by the plaintiff
15. The plaintiff filed her replication wherein the contents of the written statement were denied and the averments of the plaint were reiterated as being true and correct.
Issues framed
16. Vide order dated 12.8.2009, the following issues were in the present suit:
1.Whether suit of the plaintiff is to be stayed under section 10 CPC? OPD
2. Whether plaintiff is to be rejected for want of cause of action as objected in para 3 of preliminary objection?
3. Whether suit is liable to be dismissed on account of mis- statement? OPD
4. Whether plaintiff is entitled for decree of possession qua the suit property? OPP
5. Whether the plaintiff is entitled for decree of damages/mesne profits? If so at what rate and for what period. OPP
6. Whether plaintiff is entitled for decree for a sum of Rs.45,000/-? OPP
7. Whether plaintiff is entitled for a decree for another sum of Rs.2,88,000/-? OPP
8. Whether plaintiff is entitled for decree of mandatory injunction as prayed? OPP CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.9/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
9. Whether plaintiff is entitled for decree of permanent injunction as prayed? OPP
10. Relief Evidence adduced by the Plaintiff
17. As already mentioned since the possession of the property was handed over to the plaintiff by the defendant company on 19.10.2013, the only dispute which survives between the parties is with respect to arrears of rent and mesne profits.
18. The plaintiff examined herself as PW-1 and deposed through her evidence by way of affidavit Ex. PW-1/A in which the contents of the plaint were reiterated. She deposed that the rate of rent in respect of the suit property upto 30.9.2008 was Rs.34,500/- per month, exclusive of other charges. She also deposed that as per the lease deed dated 30.9.2003, the rent of the suit property upto 30.9.2006 was Rs.30,000/- per month and the same stood increased to Rs.34,500/- per month from 01.10.2006 till 31.7.2007 and the defendant was in arrears of rent of Rs.4,500/- per month for 10 months from 01.10.2006 till 31.7.2007 amounting to Rs.45,000/-. She also deposed that the CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.10/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. lease deed expired on account of efflux of time on 30.9.2008 and she also sent a legal notice dated 25.6.2008 asking them to vacate the suit property from 30.9.2008 midnight. The plaintiff stated that from 01.10.2008, the defendant was a tenant at sufferance from month to month and was liable for mesne profits @ Rs.150/- per sq ft. per month, which was the prevailing rate of rent in the area amounting to Rs.1,44,000/- per month till the handover of the possession of the suit property.
19. The plaintiff relied on the following documents in support of her case:
(a) Power of attorney executed by the plaintiff in favour of her husband as Ex. PW-1/1 (OSR).
(b) Copy of the site plan was relied upon as Ex. PW-1/2 but the same was de-exhibited.
(b) Copy of the Agreement to sell dated 26.6.2007 as Ex.PW1/3 (OSR).
(c) Copy of the General Power of Attorney dated 26.6.2007 as Ex.PW1/4 (OSR).
(d) Copy of the letter of attornment dated 01.7.2007 issued CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.11/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. by the plaintiff to the defendant company as Ex. PW-1/5.
(e) Certified copy of the lease dated 30.09.2003 executed between the erstwhile owner Sh. Kuldip Singh and the defendant company was relied upon as Ex. PW1/6.
(f) The copy of legal notice dated 25.6.2008 issued by the plaintiff to the defendant company was relied upon as Ex. PW1/7.
(g) The copy of reply dated 18.08.2008 issued by the defendant was relied upon as Ex. PW-1/8.
(h) The order dated 10.08.2007 passed by the Ld. DRT-II, Delhi was relied upon as Mark PW-1/9.
(i) Copy of registered lease deed dated 16.05.2010 executed between Sh. Yash Pal Vig and Driplex Water Engineering Ltd was relied upon as Ex. PW-1/10 (OSR).
(j) Copy of registered lease deed dated 02.7.2008 executed between Sh. Yash Pal Vig and Driplex Water Engineering Ltd. was relied upon as Ex. PW-1/11 (OSR).
20. The plaintiff was cross-examined on 07.11.2022 during which she admitted that after purchase of the property by her the CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.12/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. terms and conditions of the tenancy continued to remain governed by the lease deed executed between the erstwhile owner and Sh. Kuldip Singh. The plaintiff admitted to having received letter dated 18.8.2008 by way of which the defendant company exercised their right of renewal of the lease deed, however she volunteered to state that the defendant had no right of renewal of the lease deed. She also admitted that the defendant paid rent to her of Rs.28,637/- per month after deduction of TDS @ 16.99%, therefore totally amounting to Rs.34,500/- per month. However, she denied the suggestion that the defendant did not commit any shortfall in the payment of rent to her and paid the correct rent to her till the time it occupied the suit property. She also deposed that she had physically inspected the property at the time of purchase and thereafter again after 1-2 months. She deposed that she did not know whether any written complaint was made by her or her husband to any municipal authority concerning the unauthorized construction and encroachment, however stated that she had given a written communication to the defendant company prior to 25.6.2008, and did not remember if the same had been placed on record. She denied the suggestion CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.13/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. that no such act was committed by the defendant company. She also denied the suggestion that the changes had been made by the defendant company at the time of inception of the tenancy. She denied the suggestion that she had illegally terminated the tenancy of the defendant company.
Evidence adduced by the Defendant
21. The defendant company examined Sh. D. D. Goyal, its Executive Director (Commercial) as DW-1, who deposed through his evidence by way of affidavit Ex. DW-1/A that he was appointed as the executive director on 06.1.2009 and during the pendency of the suit ceased to its Executive Director (Commercial) in the defendant company and the defendant company vide Special Power of Attorney dated 19.01.2023 appointed Mr. K. Lall Jain to do all or any of the acts as detailed in the said Special Power of Attorney with further power to nominate him to do the said acts and things including to represent the defendant company in the present suit. He further deposed that the said Special Power of Attorney was executed by the defendant company pursuant to the Resolution passed in the Meeting of the Board of Directors on 16.12.2022 and that CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.14/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. pursuant thereto, Mr. K. Lall Jain vide Nomination Letter dated 07.02.2023 nominated him authorizing to represent the defendant company in the present suit and to do all such acts and things as given in the said Nomination. The witness relied upon the right of the defendant company for renewal of the lease deed as per clause 10. He also relied upon clause 5 of the registered Lease Deed Ex. PW-1/6 whereby in the event of the lessor selling the suit property, the tenancy was to be attorned to the new owner/purchaser and the sale was to be subject to the tenancy and the defendant company/lessee was to pay the rent to the new owner on the same terms and conditions and the deposit given by the defendant/lessee to the lessor was to stand transferred to the new owner/purchaser. The plaintiff served a letter dated 19.08.2007 upon the defendant company claiming that she had purchased the suit property and retained the security amount of Rs.90,000/-. The plaintiff got served a notice dated 25.06.2008 without any cause or reason upon the defendant terminating the tenancy and three months time was given to the defendant company to vacate the suit property.
CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.15/38
Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
22. DW-1 relied upon the following documents in support of his testimony
(a) Copy of the board resolution dated 6.1.2009 of the defendant company appointing the witness as executive director was relied upon as Ex. DW-1/1.
(b) The extract of the minutes of the board of meeting dated 16.12.2022 was relied upon as Ex. DW-1/2.
(c) Copy of the special power of attorney executed by the defendant company in favour of the witness was relied upon as Ex. DW-1/3.
(d) Copy of the nomination dated 07.02.2023 was relied upon as Ex. DW-1/4.
(e) The civil suit filed by the defendant company bearing CS no.130/2008 for specific performance of the lease deed was relied upon as Ex. DW-1/5.
(f) The written statement filed by the plaintiff in CS no.130/2008 was relied upon as Ex. DW-1/6.
(g) The statement of the witness recorded in CS no.130/2008 was relied upon as Ex. DW-1/7.
(h) The statement of the plaintiff's husband recorded in in CS no.130/2008 was relied upon as Ex. DW-1/8.
(f) The order dated 19.10.2013 passed in CS no.130/2008 was relied upon as Ex. DW-1/9.
(g) The report of the local commissioner in CS no.130/2008 was relied upon as Ex. DW-1/10.
(f) The photographs filed by the local commissioner along with his report in CS no. 130/2008 were relied upon as Ex. CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.16/38
Mala Verma Vs. M/s. Driplex Water Engineering Ltd. DW-1/11 (Colly).
(g) The certified copy of order dated 13.01.2004 passed by the Ld. DRT-II, Delhi in RC No.27/2001 was relied upon as Ex. DW-1/12 (placed in CS No.130/2008).
(h) The letter dated 15.03.2004 of the Corporation Bank addressed to the defendant company tendered in CS No.130/2008 was relied as Ex. DW-1/13.
(i) The letter dated 19.08.2007 of the plaintiff addressed to the defendant company tendered in CS No.130/2008 was relied as Ex. DW-1/14.
(j) Order dated 10.08.2007 of Ld. DRT-II, Delhi tendered in CS No.130/2008 was relied as Mark A.
(k) Letter dated 20.08.2007 of the defendant company addressed to DRT-II, Delhi tendered in CS No.130/2008 was relied as Mark B.
(l) The letter dated 22.08.2007 of the Corporation Bank addressed to the defendant company tendered in CS No.130/2008 was relied as Ex. DW-1/17.
(m) The letter dated 03.09.2007 of the Corporation Bank sent to the plaintiff tendered in CS No.130/2008 was relied as Mark C.
(n) The letter dated 27.09.2007 sent by the defendant company to Ld. DRT-II, Delhi tendered in CS No.130/2008 was relied as Mark D.
(o) The letter dated 28.09.2007 of the defendant company addressed to the plaintiff along-with two cheques of Rs.28,637/- after deduction of TDS sent to plaintiff CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.17/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. tendered in CS No.130/2008 was relied as Mark E.
(p) The letter dated 19.08.2008 sent by the defendant company to the plaintiff along-with original speed post receipt tendered in CS No.130/2008 was relied as Mark F and Ex. DW-1/22.
(q) The letter dated 27.08.2008 sent by the plaintiff to the defendant company tendered in CS No.130/2008 was relied as Mark G.
23. DW-1, Sh. D.D. Goyal was cross-examined on 07.06.2023 during which he deposed that the defendant company vacated the premises on 30.9.2013, but could not recollect the last rent paid by the defendant company. He was questioned whether the defendant company paid the enhanced rent of Rs.39,675/- for the period 01.10.2009 to 30.9.2012 and Rs.45,626/- for the period 01.10.2012 till 30.9.2013, to which he replied in the affirmative but stated that he could not say whether any proof of the same had been filed on record. He deposed that the rent for the period 01.9.2006 till 31.7.2007 was deposited by the defendant before the DRT for September 2006 and @ Rs.34,500/- p.m. from October 2006 till July 2007 after deduction of TDS. However, he could not point out any proof of payment on record. He denied CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.18/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. the suggestions that the defendant company did not pay rent @ Rs.34,500/- per month for the period 01.10.2006 till 31.7.2007 and had breached the terms of the lease deed. He also denied the suggestion that the plaintiff was not bound to renew the lease again for a period of five years in favour of the defendant company. He denied the suggestion that the defendant company was in arrears of rent at the time of vacation of the suit property. DW-1 was confronted with a cheque, which was exhibited as Ex. DW-1/P-1 and deposed that the amount mentioned in the cheque was after deduction of TDS. He deposed that he did not remember whether the defendant company had filed TDS challans in respect of the TDS deducted from 01.9.2006 till the vacation of the premises. He admitted that the TDS certificates had not been placed on record by the defendant company. He denied the suggestion that any structural changes had been carried out by the defendant company. He also admitted that the adjoining building was also under the occupation of the defendant company. He also admitted the lease deed Ex. PW-1/10 and Ex PW-1/11.
CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.19/38
Mala Verma Vs. M/s. Driplex Water Engineering Ltd. Arguments of the parties
24. The ld. counsel for the plaintiff Sh. Vibhor Garg has argued that the plaintiff has duly proved her case. It is vehemently contended that since the possession of the tenanted premises has been received back by the plaintiff, the only dispute left between the parties to be adjudicated is for rent and mesne profits.
25. The ld. counsel for the defendant Sh. L.K. Singh has argued that the tenancy of the defendant has been created by a registered agreement. The plaintiff became owner during the subsistence of lease in favour of the defendant company, hence, the landlord was bound to renew lease for further five years, which the plaintiff refused. It is further contended that the damage to property as a ground for eviction has not been pressed nor the structural changes have neither been proved nor argued.
26. I have heard the arguments advanced by the ld. Counsel for the plaintiff and have also gone through the judicial record carefully.
CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.20/38
Mala Verma Vs. M/s. Driplex Water Engineering Ltd. Issue-wise finding and reasons Issues no.1-4, 8 and 9
27. With respect to issues no.1 - 4, 8 and 9 which are reproduced below, in view of the defendant company having already handed over the possession of the suit property to the plaintiff on 19.10.2013, the said issues have become infructuous and need not be decided.
1.Whether suit of the plaintiff is to be stayed under section 10 CPC? OPD
2. Whether plaintiff is to be rejected for want of cause of action as objected in para 3 of preliminary objection?
3. Whether suit is liable to be dismissed on account of mis- statement? OPD
4. Whether plaintiff is entitled for decree of possession qua the suit property? OPP
8. Whether plaintiff is entitled for decree of mandatory injunction as prayed? OPP
9. Whether plaintiff is entitled for decree of permanent injunction as prayed? OPP Issue no.5-7 CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.21/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
28. I shall next decide issues no.5-9 together since they are connected issues, which are reproduced below for the sake of convenience:
5. Whether the plaintiff is entitled for decree of damages/mesne profits? If so at what rate and for what period. OPP
6. Whether plaintiff is entitled for decree for a sum of Rs. 45,000/-? OPP
7. Whether plaintiff is entitled for a decree for another sum of Rs. 2,88,000/-? OPP
29. In order to adjudicate the above issues, it would be pertinent to refer to the contents of the registered lease deed dated 30.9.2003, Ex. DW-1/6. The said lease deed was executed for a period of five years commencing from 01.10.2003 till 30.9.2008 between the defendant company and the erstwhile owner Sh. Kuldeep Singh. The defendant company deposited an amount of Rs.90,000/- as security deposit with the lessor. It was agreed between the parties that for the first three years, i.e from 01.10.2003 till 30.9.2006, the rent was Rs.30,000/- per month and for the fourth and the fifth year, i.e. from 01.10.2006 till CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.22/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. 30.9.2008, the rent would be escalated to Rs.34,500/- per month.
30. As per clause 2 (b) of the lease deed, the defendant company was at liberty to carry out any modifications, additions and alterations in the suit property. The said clause is also reproduced below:
2 (b) The LESSEE shall be liberty to carry out any modifications additions and alterations including removing of a portion wall between the demised premises and the adjoining building for constructing and providing doors and windows therein on the demised premises according to its needs and requirements and the LESSOR shall raise no objection at any point of time for such modification/ addition/ alterations that may be undertaken by the LESSEE. The LESSEE shall not carry out any other structural changes in the premises without the permission of the LESSOR. The LESSEE shall restore the demised premises back to its original positions at the time of handing over the demised premises to the LESSOR.
31. Further, as per clause 2 (g) of the lease deed, the lessee was free to install generator set with exhaust on the terrace.
32. As per clause 5 of the lease, in the event of the suit property being sold, the tenancy was to be attorned by the new owner and the sale was to be subject to the tenancy and the CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.23/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. lessee/defendant company was to pay the rent to the new owner/purchaser as per the terms and conditions of the lease deed.
33. As per clause 6 of the lease deed, in the event of the lessee failing to pay the rent to the lessor for a period of three consecutive months or the lessee committed a breach of any terms and conditions of the agreement, the lessor was entitled to terminate the lease subject to giving three months in writing to the lessee calling upon him to pay the arrears of the rent or remedy the breach. The clause no.6 is also reproduced below:
6. In the event of the LESSEE failing to pay the rent to the LESSOR for a period of three consecutive months after the same shall have become due or if the LESSEE commits breach of any terms and conditions of this agreement, then the LESSOR will be entitled to terminate this lease provided that the LESSOR shall have given three month notice in writing to LESSEE calling upon the LESSEE to pay the arrears of the rent or to remedy the breach and upon the lessee so paying up the arrears of rent and/ or remedying the breach, the notice shall lapse and this lease shall continue undisturbed.
34. Clause no.8 of the lease deed also provided an unconditional right to the lessee to terminate the lease deed by CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.24/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. giving three months prior notice. The clause no.8 of the lease deed is reproduced below:
8. That the LESSEE shall be at liberty to terminate the Lease Deed by giving three months prior written notice of the same to the LESSOR, in that event it is also understood between the parties that on expiry of the Lease period or early termination of lease for whatsoever reason the LESSEE will be permitted to remove its infrastructure, furniture / equipments etc. from the demised premises before handing over possession and the LESSOR will raise no objection to the same. However, the LESSEE will complete the restoration before the possession is handed over to the LESSOR.
35. As per clause no.9, if the lessee was prevented by any act of the lessor from enjoying the demised premises, then it could terminate the lease deed with fifteen days notice. The clause no.9 of the lease deed is reproduced below:
9. If , the LESSOR prevents LESSEE from work or from enjoyment of demised premises for the purpose for which it is taken, the LESSEE can terminate this agreement with fifteen days notice to the LESSOR. In that event the LESSOR shall be liable to forthwith refund the Security Deposit and shall also become liable for payments of the actual expenses that may be suffered by the LESSEE for the alteration / rectification / office furniture / work on the said demised premises.
36. As per clause 10 of the lease deed, the lease deed was CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.25/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. renewable for a further period of five years at the option of the LESSEE on the same terms and conditions, subject to increase in rent. The clause no.10 of the lease deed is reproduced below:
10. This lease will be renewed for further period of five years at the option of the LESSEE on the same terms and conditions excepting increase in rent as stipulated below:
Rs. 34,500/- for the period from 1.10.2008 to 30.9.2009 Rs. 39,675/- for the period from 1.10.2009 to 30.9.2012 Rs. 45,625/- for the period from 1.10.2012 to 30.9.2013 Fresh document of lease will be executed and registered by the parties. In case the LESSOR avoids to execute the fresh document of the lease, the LESSEE shall have the right to specific enforcement of contract.
After expiry of this period of five years the lease may be extended further on mutually agreed terms and conditions.
37. It is not in dispute between the parties that the plaintiff purchased the suit property from the erstwhile owner Sh. Kuldeep Singh on 26.6.2007 vide agreement to sell (Ex. PW-1/13) and general power of attorney (Ex. PW-1/4 OSR). It is recorded in Ex. PW-1/13 that the property at present had been given as collateral security to Punjab National Bank for a loan taken by M/s Lakshya Export International and it would be released and absolute clear title of the property would be given to the plaintiff on or before 31.8.2007. It is also recorded that the CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.26/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. plaintiff was entitled to receive the rents from the defendant company with respect to the two floors from 01.9.2006. The plaintiff was also attorned by way of letter of attornment dated 1.1.2007, Ex. PW-1/5, issued by the erstwhile owner Sh. Kuldeep Singh to the defendant company, requiring them to pay the rent henceforth to the plaintiff.
38. It is also not in dispute that the suit property stood as a collateral security to Punjab National Bank against a loan taken by M/s Lakshya Export International, in connection with which an order dated 13.1.2004, Ex. DW-1/12, had been passed by the DRT-II, whereby the defendant company had been directed to deposit the rent with the DRT. It was only vide order dated 10.8.2007, Mark A, passed by the DRT that the direction for deposit of rent was and an amount of Rs.2,51,046/- was ordered to be released as the liability had been repaid to the Bank as per the compromised amount. The said order dated 10.8.2007, Mark A is reproduced below:
DEBTS RECOVERY TRIBUNAL-II, DELHI RC No. 27/2001 Dated 10.08.2007 In the matter of: Corporation Bank Vs M/s Ajit Amin CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.27/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
International Present: Suresh Arora, Advocate along-with Shri Abid Karim, Officer for the CH Bank.
Shri Madan verma, Advocate proxy for Ms. Arti Verma, Advocate for the CD Nos. 2 & 3 The Ld counsel for the CH Bank duly supported by the Officer for the CH Bank files an affidavit dated 10.08.2007 of the competent authority for the CH Bank stating that the CDs have since deposited the complete amount in terms of the compromise proposal entered with the CDs and that there remains nothing to be paid by the CDs. It has been further requested in the aforesaid application/affidavit that the recovery proceedings in these RC may be closed as satisfied and rent with respect to the 1st & 2nd Floors of the property in question kept in no-lien account (Rs. 2,51,046/-) may be allowed to be refunded to the CDs. Two drafts totaling for Rs. 49,802/- have been received as the attached rent, which are handed over to the Officer for the CH Bank for keeping in an no-lien account. Accordingly, in terms of the affidavit dated 10.08.2007 of the competent Officer for the CH Bank the recovery proceedings in the RC are ordered to be closed.
Considering the facts on record and submissions made the following directions are issued: -
1. Since the RC is satisfied through compromise the file may be closed and consigned to the records,
2. CH Bank is directed to refund the excess amount over and above the compromise reached with the CDs received as attached rent from the Tenant(s) of the property bearing No. 2. Panchsheel Local Shopping Complex, New Delhi to the CDs within two weeks of the receipt of the copy of this order
3. Henceforth, the tenant(s) of the above-said floors of the property is/are directed to pay future rent to the owner(s) of the property on receipt of the copy of this order.
A copy of this order be issued DASTI to both the parties.-
(JK. ARORA) RECOVERY OFFICER CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.28/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
39. Hence, as per Order dated 13.01.2004 passed by the DRT, the defendant company was required to deposit the rent before the DRT itself. At that time, the rent as per the lease deed Ex. PW-1/6 was Rs.30,000/- per month, and from 01.10.2006, the rent stood escalated to Rs.34,500/- per month. Thereafter the DRT vide its order dated 10.8.2007 has released the rent deposited and vacated the direction for deposit of rent on account of the matter being compromised. However, even as per the defendant company's own document i.e. Mark B, which is a letter dated 20.8.2007 written by it to the DRT seeking to deposit rent for the month of August 2007 for the first and second floors of the suit property, the same only reflected an amount of Rs.24,901/- after deduction of TDS @16.99%. Clearly the defendant company has continued to pay rent of only Rs.30,000/- even after 01.10.2006 instead of the escalated rent of Rs.34,500/-. Further, as per letter dated 25.9.2007, Ex. DW-1/P1, written by the defendant company to the plaintiff, the rent for the month of August, 2007 was paid at the escalated rate of Rs.34,500/- per month to the plaintiff.
CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.29/38
Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
40. Hence, I find that the defendant company is liable to pay the difference between the rent paid by it and the escalated rent amounting to Rs.4,500/- for the period 01.10.2006 till 31.7.2007, which amounts to Rs.45,000/-.
41. Coming to the question of the plaintiff having proved whether the defendant company had indulged in any structural alteration of the suit property, trespass and storage of hazardous materials, I find that the plaint itself only contains vague and bald allegations in para no.4, 5 and 6 without mentioning any dates. In para no.7 of the plaint, it is further averred that the plaintiff came to know about the same only in April/May, 2008. However, during her cross-examination dated 07.11.2022, the plaintiff admitted that she had inspected the suit property at the time of its purchase and thereafter had inspected it again after a few months and her husband used to visit the suit property often. She deposed that she did not know whether any written complaint was made by her or her husband to any municipal authority concerning the unauthorized construction and encroachment, however stated that she had given a written communication to the defendant CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.30/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. company prior to 25.6.2008, and did not remember if the same had been placed on record. In view of the same, it is highly unlikely that the plaintiff, having inspected the suit property at the time of its purchase in 2006 itself, would not have come to know of any structural changes having been carried out by the defendant company and has only come to know about the same in April/May, 2008. Moreover, as per clause 2 (b) of the lease deed, the defendant company was at liberty to carry out any modifications, additions and alterations in the suit property. Further, as per clause 2 (g) of the lease deed, the lessee was free to install generator set with exhaust on the terrace. The plaintiff has not led any cogent evidence to show that the defendant had carried out any changes to the suit property which were beyond the scope of modifications, additions and alterations beyond the scope of clause 2(b) of the lease deed or that it had trespassed into any portion of the suit property or storage of any hazardous materials and has failed to prove the said fact.
42. Coming now to the question of whether the plaintiff was justified in cancellation of the lease deed by the plaintiff vide her CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.31/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. letter dated 25.6.2008, Ex. PW-1/7, and whether the defendant company was entitled to exercise of its option of renewal of the lease deed vide its letter dated 19.8.2008.
43. In the letter dated 25.6.2008, Ex. PW-1/7, the plaintiff has specifically stated that the defendant company was in arrears of rent of Rs.4,500/- per month for the period 01.10.2006 till 31.7.2007 amounting to Rs.45,000/- and that the lease deed dated 30.9.2003 was being terminated with effect from 30.9.2008.
44. As per clause 6 of the lease deed, in the event of the lessee failing to pay the rent to the lessor for a period of three consecutive months or the lessee committed a breach of any terms and conditions of the agreement, the lessor was entitled to terminate the lease subject to giving three months in writing to the lessee calling upon him to pay the arrears of the rent or remedy the breach. The clause no.6 is also reproduced below:
6. In the event of the LESSEE failing to pay the rent to the LESSOR for a period of three consecutive months after the same shall have become due or if the LESSEE commits breach of any terms and conditions of this agreement, then the LESSOR will be entitled to terminate this lease CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.32/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
provided that the LESSOR shall have given three month notice in writing to LESSEE calling upon the LEESSEE to pay the arrears of the rent or to remedy the breach and upon the lessee so paying up the arrears of rent and/ or remedying the breach, the notice shall lapse and this lease shall continue undisturbed.
45. In response to the above letter, the defendant company replied vide letter 18.8.2008, Ex. PW-1/8, in which the enhanced rent not having been paid was simply denied, without any further explanation. The defendant company also sent a separate letter dated 19.08.2000, exercising its right of renewal of the lease deed as per clause 10.
46. As already mentioned above, the defendant company was in arrears of rent of Rs.4,500/- per month for the period 01.10.2006 till 31.7.2007. The right of the defendant company to exercise its option for renewal of the lease under clause 10, was subject to it having paid the rent amount as agreed between the parties. The plaintiff had intimated the defendant company vide its legal notice dated 25.6.2008 that on account of non-payment of rent, amongst other reasons, the lease deed had been terminated from 30.9.2008. The said legal notice provided for a CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.33/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. period of three months after which the lease agreement stood terminated from 30.9.2008. The defendant company could have paid the arrears of rent of Rs. 45,000/- to the plaintiff within the said time, however admittedly no such arrears of rent were paid by it. Hence, I find that the plaintiff was justified in terminating the lease agreement dated 30.9.2003 on account of non-payment of Rs.4,500/- per month by the defendant company for the period 01.10.2006 till 31.7.2007. The defendant company's right of renewal under clause 10 could only have been exercised by it, subject to payment of the timely and complete rent to the plaintiff, which it did not do.
47. Resultantly, the defendant company became an unauthorized occupant of the suit premises with effect from 01.10.2008 onwards and has only handed over the possession of the suit property to the plaintiff on 19.10.2013 and is thus liable to pay mesne profits to the plaintiff for this period. Ld. Counsel for the plaintiff has stated that for the period from 1.10.2008 till 30.9.2013, the plaintiff has received the rent from the defendant company as per clause 5 of the lease agreement. The same is CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.34/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. reproduced below:
Rs. 34,500 for the period from 1.10.2008 to 30.9.2008 Rs. 39.675/- for the period from 1.10.2009 to 30.9.2012 Rs. 45,626/- for the period from 1.10.2012 to 30.9.2013
48. The plaintiff has relied upon a registered lease deed 16.5.2010, Ex. PW-1/10, executed between the defendant company and one Sh. Yashpal, and another registered lease deed dated 01.7.2008, Ex. PW-1/11 between Narinderjit Singh and Saregama India Ltd. The lease deeds pertain to premises which are located in the same area and within the immediate vicinity of the suit property, with the same floor area as well. The plaintiff thus claims mesne profits of Rs. 1,44,000/- from the defendant company.
49. The property in question is a commercial property located at Panchsheel Park, which is a prominent and sought after area in the city and would command a handsome rent. However, rather than relying on lease deeds for properties in the area, it would be more appropriate to calculate mesne profits for the period from 01.10.2008 till 30.9.2013, by treating rent of Rs.30,000/- for the period 1.10.2003 till 30.9.2004 as the base year and providing for CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.35/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd.
an increase of 15% in the rent for every year. I am also conscious of the fact that as per the lease deed Ex. PW-1/6, the rent of Rs.30,000/- has remained constant for three years from 01.10.2003 till 30.9.2006, and only from 01.10.2006 to 30.9.2008, the rent has been escalated to Rs.34,500/-. However, in order to calculate the mesne profits for the relevant period, I have provided for 15% increase per year to the rent of Rs.30,000/- for every year. I also take judicial notice of the fact that rent of commercial properties in prime locations in Delhi generally see an increase of about 15% per annum. Following this method, the mesne profits arrived at for the period 01.10.2008 till 30.9.2013 is provided in a tabular manner below:
S.No Period Rent per Rent per Rent per Amount of month as month after month mesne profits per lease providing actually actually deed Ex. for 15% paid by the payable by the PW-1/6 increase defendant defendant (decimals company company for rounded off the period to the next value)
1. 1.10.2003 till Rs. 30,000/- N.A. N.A. N.A. 30.9.2004
2. 1.10.2004 till Rs. 30,000/- Rs. 34,500/- N.A. N.A. 30.9.2005
3. 1.10.2005 till Rs. 30,000/- Rs. 39,675/- N.A. N.A CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.36/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. 30.9.2006
4. 1.10.2006 till Rs. 34,500/- Rs. 45,627/- N.A. N.A. 30.9.2007
5. 1.10.2007 till Rs. 34,500/- Rs. 52,472/- N.A. N.A. 30.9.2008
6. 1.10.2008 till Rs. 34,500/- Rs. 60,343/- Rs.34,500/- Rs. 3,10,116/-
30.9.2009
7. 1.10.2009 till Rs. 39,675/- Rs. 69,396/- Rs.39,675/- Rs.3,56,652/-
30.9.2010
8. 1.10.2010 till Rs. 39,675/- Rs. 79,806/- Rs.39,675/- Rs.4,81,572/-
30.9.2011
9. 1.10.2011 till Rs. 39,675/- Rs. 91,777/- Rs.39,675/- Rs.6,25,224/-
30.9.2012
10. 1.10.2012 till Rs. 45,626/- Rs.1,05,544/- Rs.45,626/- Rs.7,19,016/-
30.9.2013 TOTAL MESNE PROFITS PAYABLE FOR THE PERIOD Rs.24,92,580/- 1.10.2008 TILL 30.9.2013 LESS SECURITY DEPOSIT OF - Rs.90,000/- = RS.90,000/- Rs.24,02,580/-
50. Hence, as provided above, the defendant company is liable to pay a total amount of Rs.24,02,580/- as mesne profits for the period 01.10.2008 till 30.09.2013. The plaintiff has sought for interest @ 15% p.a., however, I find the same to be excessive and usurious and in my considered opinion, the ends of justice would CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.37/38 Mala Verma Vs. M/s. Driplex Water Engineering Ltd. be met if the plaintiff is held entitled to interest @ 6% p.a. from the date of handover of the possession of the suit property to the plaintiff, i.e. 19.10.2013 till its realisation.
51. Issues no. 5-7 are accordingly decided in favour of the plaintiff and the plaintiff is held entitled to Rs.45,000/- from the defendant company. The plaintiff is further held entitled to an amount of Rs.24,02,580/- from the defendant company as mesne profits along with interest @ 6% p.a. from the date of hand-over of the possession of the suit property to the plaintiff, i.e. 19.10.2013 till its realisation. No order as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance. Copy of the judgment be uploaded. Digitally signed by JITEN
JITEN MEHRA MEHRA Date:
2024.11.25 16:06:09 +0530 Announced in the open court (JITEN MEHRA) on 25.11.2024 DJ-10/Central/THC Delhi.CS DJ No. 615999/16 (Misc. DJ no.679/24) Page No.38/38