Delhi District Court
Kanta Khanna (Now Deceased) vs Kapil Sood on 29 November, 2018
In the Court of Ms. Vineeta Goyal: Additional District Judge03
(South District) Saket Court Complex, New Delhi.
CS No. : 8402/16
CNR No. DLST010000162005
In the matter of :
1.Kanta Khanna (now deceased) Wife of Late (Sh.) Harbhajan Lal Khanna R/o D96, Saket, New Delhi110017
2. Ms. Dolly D/o Late (Sh.) Harbhajan Lal Khanna R/o D96, Saket, New Delhi110017
3. Ms. Anita D/o Late (Sh.) Harbhajan Lal Khanna R/o D96, Saket, New Delhi110017
4. Ms. Sarita D/o Late (Sh.) Harbhajan Lal Khanna R/o D96, Saket, New Delhi110017
5. Ms. Seema D/o Late (Sh.) Harbhajan Lal Khanna R/o D96, Saket, New Delhi110017
6. Ms. Ruby D/o Late (Sh.) Harbhajan Lal Khanna R/o D96, Saket, New Delhi110017
7. Ms. Simmi D/o Late (Sh.) Harbhajan Lal Khanna R/o D96, Saket, New Delhi110017 ......Plaintiffs CS No. 8402/16 Page 1 of 29 V E R S U S Prem Prakash Sood (since deceased) Though his legal heirs
1. Kapil Sood S/o Late (Sh.) Prem Prakash Sood R/o D96, Saket (Second floor) New Delhi17
2. Vivek Sood S/o Late (Sh.) Prem Prakash Sood R/o D96, Saket (Second floor) New Delhi17 .......Defendants Date of institution : 05.09.2005 Date of decision : 29.11.2018 Appearance : Sh. Dhawal Mehrotra, Counsel for plaintiffs.
Sh. Jai Mohan, Counsel for defendants.
J U D G M E N T
1. The plaintiffs have filed this suit for possession of suit property consisting of 2nd floor of property number D 96 Saket New Delhi (hereinafter referred to as the 'demised premises') and recovery of money alongwith interest against the defendants. It is also relevant to mention here that defendant has filed a counterclaim claiming that plaintiffs be directed to execute sale deed in respect of suit property with sky rights.
2. The facts as appearing in the plaint are epitomized as under that the premises consisting of 2nd floor of property no. D96, Saket, New Delhi, which is shown as red in site plan annexed with the CS No. 8402/16 Page 2 of 29 plaint, was let out to the defendant at the monthly rent of Rs.1,100/ + 20% of the applicable House Tax plus electricity bill and water charges and other charges in year 1985. The terms and conditions duly confirmed by the defendant in the writing that since the plaintiff required some finances to complete the construction of 2nd floor so they approached the defendant to grant a loan of Rs.1,10,000/ (Rupees one lac ten thousand only) to which he agreed to advance the same from the account of his wife Ms. Aruna Sood but however, as a security he wanted, the plaintiff to execute an agreement to sell in respect of 2nd floor in favour of his wife to which they agreed under duress. That a sum of Rs.1,00,000/ paid as a loan with the promise to pay balance of Rs.10,000/ at a later date, however in the agreement to sell it was specifically mentioned that if ownership of 2nd floor is not transferred in the name of his wife in that event the plaintiff shall pay Rs.1,10,000/ to the defendant and his wife. The ownership of 2nd floor never stood transferred and the plaintiffs carried the liability of refunding the said amount; that the premises was only let out and not sold and a clause for refund of money was also incorporated in the agreement to sell as well as in the lease deed where it was provided that said amount would carry interest @ of 12% which would be adjusted towards cash component of rent of Rs.1,100/ per month and agreement to sell in favour of his wife was just a security.
2.1. It is next submitted that at as per terms of letting it was agreed that after 5 years, plaintiff would refund Rs.55,000/ and would be entitled to Rs.550/ per month as rent and in the next five years the plaintiffs would pay the balance of Rs.55,000/ and would become entitled to get Rs.1,100/ per month as rent. It is next submitted that it was also agreed that during the first five years, the defendant was CS No. 8402/16 Page 3 of 29 liable to pay water and electricity charges beside the House Tax which he did not pay on the plea that plaintiff could deduct the same out of finance amount of Rs.1,10,000/. It is further submitted that after the expiry of first five years, the plaintiff offered Rs.55,000/ but defendant returned the same with the instructions to retain the same for adjustment towards the electric and water charges as well as the House Tax. That on the expiry of 10 years the plaintiff have already paid House Tax 20% of yearly House Tax which comes to Rs.37,320/ total being Rs.18,660/ per year, Rs.12,000/ as water charges @ Rs.50/ per month, Rs.500 per month on average electricity charges and total being Rs.60,000/ and as such after adjusting Rs.1,09,320/ out of total Rs.11,000 only, Rs.680/ remained balance of which adjustment was made next month after the expiry of period of 10 years. That the defendant is under contractual obligation to pay Rs.1100/ as rent on expiry of 10 years and also to pay House Tax besides electricity and water charges. That the total monthly charges for the use and occupation of the premises at the present rate comes to Rs.4000/ per month i.e. Rs.1100/ as cash compensation electricity charges Rs.1500/ per month House Tax Rs.1000/ per month and Rs.400/ as water charges and since agreed rate of rent it exceeds Rs.3500/ per month. The provisions of Delhi rent Control Act are not applicable to the suit premises. The defendant is defaulter and the plaintiffs were left with no option except to terminate his tenancy and they served the defendant with a legal notice of termination dated 21.04.2005 and terminated his tenancy with effect from 31.05.2005 which was duly replied on 2nd May 2005 raising false and frivolous pleas and refused to vacate the premises. The defendant is in unauthorized possession with effect from 1st June 2005 and defendant is liable to pay damages at the present market rate which is not less than Rs.50,000/ per month that CS No. 8402/16 Page 4 of 29 despite notice defendant has failed to vacate, so the plaintiffs are entitled to arrears of rent up to 31st May 2005 which comes to Rs.1,44,400/ and damages from 1st June 2005 to 31st August 2005 which comes to Rs.1,50,000/ and also Rs.17,00,000/ for raising unauthorized construction, hence the suit for possession of premises and recovery of aforesaid amount.
3. Pursuant to process issued by the court the defendant appeared and contested the suit.
3.1. At the very outset, the defendant denied the relationship of landlord and tenant and as such challenged the maintainability of the suit alleging further that his wife became the owner of suit premises by virtue of agreement to sell dated 02.07.1985 duly executed by the plaintiff in her favour and they have been putting up in the premises for the past 19 years and during the said period the plaintiffs never challenged the status of his wife as owner so he pleaded that the plaintiffs are estopped from raising the said plea and plea of limitation too has been raised. It is next submitted that his wife Aruna Sood expired on 24th November 2001 and after her death her right devolved on the defendant and his two sons and in the absence of any challenge to the agreement to sell their right, title and interest has become absolute and no relief of cancellation has ever sought. That the sole contention of the plaintiff is that they took a loan of Rs.1,10,000/ from defendant's wife for raising construction of 2 nd floor which infact was never carried out by the plaintiff. The said construction was done by the defendant and his wife. There was no drawing room and kitchen in the second floor as claimed and the terrace of the first floor, 2nd floor had no construction when it was sold to the defendant and his wife.
CS No. 8402/16 Page 5 of 29They sold the unbuilt 2nd floor and after purchase, the defendant constructed the same from his sources and the plaintiff never raised any voice. Plea of nonjoinder of necessary parties too has been raised alleging that after the death of Aruna Sood her two sons too succeed to her property. Cause of action having accrued to have been disputed on merits. It is averred that terrace of first floor viz. 2 Nd floor which was unbuilt was sold to Ms. Aruna Sood vide agreement to sell dated 02.07.1985 and the construction was raised by them and since then the defendant and his family members are in possession of the suit property and as per terms of agreement to sell the plaintiff were required to seek permission to execute the sale deed and pursuant to agreement to sell the plaintiff also gave power of attorney to Sh. Jitender Nath Sood brotherinlaw of Aruna Sood and brother of defendant to carry out construction in the unbuilt 2nd floor which was duly carried by defendant and his wife. As per the Power of Attorney dated 24.07.1985 Sh. J.N. Sood was to manage and control second floor and to represent before each and every officer official department, to rent out the second floor to apply to DDA, MCD or any other authority for mutation of 2nd floor in the name of Aruna Sood etc. and denied that the plaintiff approached to him for any loan of Rs.1,10,000/ and in order to complete the construction of 2nd floor and the said amount was paid by Aruna towards a sale consideration and the sale deed was to be executed after getting the property freehold for obtaining the permission from DDA. The rent note was written just to avoid any objection from DDA while considering the application of conversion from leasehold to freehold. That the plaintiff has to get the said permission and agreement to sell cannot be said to be sham document. It would have never been acted upon. It is also submitted that electricity and water charges have been regularly paid till the CS No. 8402/16 Page 6 of 29 defendant obtained the electric connection. House Tax too has been paid regularly but the plaintiff have not issued the receipts. Since the relationship of plaintiff and his wife was of seller and purchaser so there was no question of making any payment of rent. The defendant also claimed the notice of termination as frivolous and also disputed the demand of rent damages etc. so prayed for dismissal of suit and by way of counterclaim prayed that plaintiff be directed to execute the sale deed after seeking due permission from the DDA and ready to bear the registration expenses.
4. From pleading of parties, following issues have been framed on 16.07.2009:
1. Whether the defendant had executed the lease deed in the year 1985 in favour of the plaintiffs and there was a relationship of landlord and tenant between the plaintiffs and the defendant? OPP
2. If issue no. 1 is decided in affirmative, whether the tenancy of the defendant was legally and validly terminated by the plaintiffs vide legal notice dated 25.04.2005 w.e.f. 31.05.2005? OPP
3. If issue no. 2 is decided in affirmative, whether the plaintiffs are entitled to the decree of possession/ejectment in respect of the suit premises against the defendant? OPP
4. Whether the plaintiffs are entitled to the damages/mesne profits, if so, for what period and at what rate? OPP
5. Whether the plaintiffs are entitled to any interest, if so at what rate? OPP
6. Whether the counterclaim of the defendant filed on 20.10.2005 for specific performance of alleged agreement to sell dated CS No. 8402/16 Page 7 of 29 02.07.1985 is within the period of limitation, if not, its effect? OPD
7. Whether the defendant has any locus standi to seek specific performance of alleged agreement to sell dated 02.07.1985, allegedly executed by the plaintiffs in favour of defendant's wife Smt. Aruna Sood, by way of counter claim? OPD
8. Whether the plaintiffs had ever agreed to sell the suit property to the defendant's wife Smt. Aruna Sood vide alleged agreement to sell dated 02.07.1985 and if yes, whether Smt. Aruna Sood, during her life time, was ever ready and willing to perform her part of contract and ever asked the plaintiffs for performance of the alleged agreement? OPD
9. Whether the counter claim for specific performance of alleged agreement to sell dated 02.07.1985 filed by the defendant is a counter blast to the plaintiff's suit for ejectment and recovery of mesne profits, as stated in the written statement to the counter claim filed by the plaintiffs? OPP
10. Whether the defendant is entitled to any relief by way of counter claim, if so, to what relief? OPD
11. Relief.
4.1. It will be pertinent to mention here that at the during pendency of suit both plaintiff no.1 Kanta Khanna and defendant Prem Prakash Sood expired and also being represented by their legal representatives, parties went to trial on the following issues. The parties led the evidence.
5. After hearing Ld. Counsel for the parties and having perused the record carefully, I proceed to decide the issues as under:
CS No. 8402/16 Page 8 of 29Issue no. 1 5.1. The onus probandi of this issue was on the plaintiffs. Simmi Khanna, one of the plaintiffs as PW1 in her affidavit of evidence Ex.
PW1/A narrated the facts as find mentioned in this plaint and disclosed as inducting Prem Prakash Sood (defendant now deceased) as a tenant in the demised property and denied that said property was sold to Mrs. Aruna Sood vide agreement to sell Ex. P.2. As per version she was aged about 1314 years when the transaction took place. She however, admitted in her crossexamination that during the period from 1985 to 2005, they did not raise any objection about the stay of the defendants claiming that defendants had been their tenant and their mother had taken loan to be adjusted towards the rent upto the period of 1995 and from the year 1995 to 2005, they had been raising the demand of rent which the defendant assured to pay. She admitted that till date the said property is leasehold property. She admitted having relinquished the share by her and her sisters in favour of their mother by way of relinquishment deed that her mother to be the registered owner. She denied having executed any GPA dated 24.07.1985. She denied her signatures in the agreement to sell. She however admitted that Ex. P2, agreement to sell does not mention about loan and also admitted to be correct that both documents Ex. P1 (lease deed) and Ex. P.2 (agreement to sell) do not bear signatures of her mother but denied these documents to be manipulated one. She admitted that as per clause 6 of Ex. P2, defendant was at liberty to construct anything on the 2nd floor without interference from the plaintiff and also admitted not to have lodged any complaint with regard to construction on 2nd floor till filing of this suit. She however denied that unbuilt 2nd floor portion was given to the defendants. She admitted documents Mark 'B' and 'C' are the same one filed by them CS No. 8402/16 Page 9 of 29 but stated that signatures of all the plaintiff duly notarized are forged and admitted having filed no complaint about the same alleging that she discovered the existence of these documents during the proceeding of this case. She admitted the signatures of her mother on Ex. D1 , Ex. D4, Ex. D5, Ex. D6 and Ex. D7 and of her sister Dolly on Ex. D2 and Ex. D3 and admitted to be correct that Ex. D1 and Ex. D7 are the receipts of payments pertaining to electricity and water charged. She admitted that property in question is leasehold property vide lease deed dated 24.08.1978 Ex. PW1/X1 and could not be sold without permission of DDA. She in her further crossexamination admitted that no objection to the word "unbuilt" in clause 3 of Ex. P2 was raised but however admitted that in plaint nowhere the word draft has been mentioned. She denied the suggestion that they intentionally had been delaying to obtain the permission from DDA in terms of lease deed Ex. PW1/1 for affection transfer of ownership of unbuilt 2 nd floor. She admitted it to be correct that she was minor at the relevant time and was not a party to the transaction being a minor.
5.2. The plaintiff also examined Sh. Vinay Kumar (CA from BSES Rajdhani office, Divison Saket who deposed about electic connection of 2nd floor of property no. D96, Saket to be in the name of Simmi Khanna and proved the same as Ex. PW3/A. He was, however, not crossexamined by the defendant.
5.3. In order to rebut the evidence led by the plaintiffs, Kapil Sood, defendant appeared as DW1 and he, in his affidavit of evidence Ex. DW1/A affirmed the pleas as taken in written statement as well as in the counterclaim. He, however, in his crossexamination admitted that in year 198586, he was only 6 years old and also admitted that he CS No. 8402/16 Page 10 of 29 gathered the knowledge from his father as his father used to share with him after the demise of his mother. He admitted that his brother Vivek too was minor in year 198586 and also admitted that Simmi Khanna, plaintiff too was minor at that time. He admitted that it was not known to him that Smt. Kanta Khanna (now deceased) approached his father for loan and also admitted that he learnt from his father that Smt. Kanta Khanna, approached his mother through Sh. J.N. Sood (his uncle to purchase the roof of first floor. He admitted that his father had admitted his signatures at Ex. P1. He admitted that application to install electric meter was moved after receiving the legal notice dated 21.04.2005 for vacation of premises which remained in their name for one month and was again transferred in the name of Simmi Khanna.
5.4. According to him, they had been paying house tax in the capacity of owner but at the same time showed his inability to produce the receipt further alleging that it was being paid to the plaintiff who did not issue the receipt having politely refused. To the question that they have failed to pay electricity charges since 1989 to 2005 except for receipts, to that question, he replied that those are twelve receipts. He however denied the suggestion that plaintiffs even approached his father with the amount of Rs.55,000/ after expiry of five years and his father refused to get the sale alleging to adjust the said amount towards the house tax as well as against electricity and water charges alleging that he had acquired the said knowledge from his father.
5.5. About notarizing the documents by the father, he showed his inability to tell the details alleging that his family did not share this fact with him. He admitted that his father had admitted the signatures of his mother on Ex. P2 at point A and of his father at point CS No. 8402/16 Page 11 of 29 B. He admitted that Ex. P2 and Ex. DW1/1 are replica of each other further alleging that Ex. P2 is the draft only. He admitted that they never notified the plaintiff to execute the sale deed and also admitted that no rent had ever been paid and also admitted that they have got no proof of construction of 2nd floor nor got any plan or map exchanged nor got any completion certificate and also admitted that document Ex. PW1/2(colly) do not bear any date and also admitted that all the receipts are in the same reference of one another and also admitted that there is no receipt of payment of Rs.10,000/ which he claimed having paid after the agreement to sell. He admitted that in Ex. P4 there is no mention of any general power of attorney Ex. DW1/1, similarly no mention of rent note Ex. D1 and of receipt Ex. DW1/2(colly). According to him, his uncle J.N. Sood died in year 2016. He showed his inability to tell if he had ever moved any application to DDA/MCD or any other authority in relation to suit property on the basis of Ex. PW1/3 (power of attorney) and denied the suggestion that it is a fake document.
5.6. Mahesh Berry DW2 identified his signatures on Ex. DW1/A and as per statement Kanta Khanna and her 56 dependents also signed the same. He also stated about signatures of Kanta Khanna on Ex. PW1/2, the general power of attorney. In his cross examination, he admitted that Kanta Khanna was not known to him earlier. It was Aruna Sood who introduced him to her and her daughters. He showed his inability to tell if any of daughters was minor at that time. He happened to go to the house of Kanta Khanna on 02.07.1985 where the notary with his register was already present. He admitted that no payment was made in his present and also showed his inability to tell if Aruna Sood, Kanta Khanna and her daughters CS No. 8402/16 Page 12 of 29 too signed in the register of said notary.
5.7. According to him, on 24.07.1985, he had again gone to the house of Kanta Khanna and the same gentleman/notary public was already there and after signing the document Ex. PW1/3, he came back. He further showed his inability to tell if anybody else put the signatures in the register of notary public. According to him, he did not come to know about the details of notary public at both the occasions and denied the suggestion that both the documents are forged and antedated documents.
5.8. The oral narration led by the parties as discussed above, is not sufficient to prove the case of either of the parties as Simmi Khanna, plaintiff who appeared as PW1 was minor at the time of alleged lease or agreement to sell and similarly Kapil Sood too was of 5 years and he made a statement as DW1 on the basis of knowledge which he acquired form his father.
5.9. The statement of Mahesh Berry, DW2 also do not inspire reliability for the reason that he was having family relationship with the family of defendants and as per his version, he visited the house of Kanta Khanna on both the alleged occasions i.e. 02.07.1985 when agreement to sell was written by the plaintiff and thereafter on 24.07.1985 when the alleged general power of attorney was executed by the plaintiff and as per his version, the documents were notarized by the notary public and he did not know as to who was the gentleman. He also did not remember if beside him, others too signed against the entry in the register of notary public. The gentleman who acted as notary public was not been examined nor his register having the CS No. 8402/16 Page 13 of 29 relevant entries has been placed on record nor his statement stands corroborated from the version of J.N. Sood. The another witness of the agreement to sell as well as the attorney older who is alleged to have expired in September, 2016, after 11 years of institution of this suit as evident from the statement of Sh. Kapil Sood as referred to above which discussing his statement.
5.10. The record is bereft of the testimonies of Kanta Khanna, plaintiff and Prem Prakash Sood, defendant, who died during the pendency of this suit and Aruna Sood too stated having expired in the year 2001 before filing of this suit, who were the parties to these documents. Thus, in these premises, the ocular narration cannot be said to be sufficient in proving the case of either of the parties.
5.11. Now, referring to the documentary proof, lease deed Ex. P1 and Agreement to sell Ex. P2 also exhibited as Ex. DW1/1, are admitted documents. Ex. P2 and Ex. DW1/2 are replica of each other except the signatures part. Ex. P2 is alleged to have been given to plaintiffs, does not bear signatures of plaintiffs and signatures of Aruna Sood too appear at different place which though admitted to be signatures of Aruna Sood by the defendant Prem Prakash Sood (now deceased) during the course of admissiondenial of document while Ex. DW1/1 bear the signatures of Aruna Sood at different place as shown in Ex. P2 beside the signatures of all the plaintiffs including the signatures of Simmi Khanna who was admittedly minor at the time of these signatures and these signatures have been denied by the plaintiffs to be theirs.
CS No. 8402/16 Page 14 of 295.12. As per the plaintiffs, the premises shown red in the site plan on the 2nd floor was let out to Sh. Prem Prakash Sood, defendant at the rental of Rs.1,100/ plus electricity and water charges plus house tax. Since they would finance to complete the 2 nd floor, so they took a loan from defendant Prem Prakash Sood, who gave the same from the account of his wife Aruna Sood and as a security, he got agreement to sell in the name of his wife which was done under duress, while this version stand controverted by the defendant Prem Prakash Sood (now deceased) who claimed that plaintiff executed the agreement to sell in favour of his wife and rent note was written just to avoid any objection by DDA while considering his application for conversion from leasehold to freehold and that the said document was never acted upon.
5.13. Thus, there is admission of execution of lease deed and agreement to sell by both the parties and is not disputed by them.
5.14. Before proceeding to adjudicate the respective claims of both the parties, the terms and conditions incorporated in these documents are required to be threshed out.
5.15. As per the terms of lease deed, the lessor need money to construct the 2nd floor under construction and need money for said construction and approached the lessee to take on rent the entire 2 nd floor; if the lessee agree to give an advance of Rs.1,10,000/ which is required for the construction of 2md floor and as per terms of said lease deed, the entire 2nd floor of the house no. D96, Saket except the adjoining passage connecting to staircase which is required for the purposes of cleaning of the tankey in common space for lessor and lessee, shall be the tenanted premises and monthly rent deserve is CS No. 8402/16 Page 15 of 29 Rs.1,100/ exclusive of electricity and water charges. As per clause 2, the accommodation on the 2nd floor will be used only as 2. residential and no commercial sign board will be displayed. Further as per clause 3, the rent in the initial five years will be adjusted in the interest which the lessor is liable to pay to the lessee on the account of Rs.1,10,000/ @12% per annum. As per clause 4, after the period of five years from the date of execution of this agreement the lessor will return Rs.55,000/ to the lessee and will be entitle to receive the rent @550/ per month and in the next five ears the lessor will return the balance of Rs.55,000/ and will start taking the rent @Rs.1100/ per month, but if the lessor do not return the amount as mentioned, the lessee will go on living in the premises i.e. entire second floor without payment of any rent. As per clause 5, the lessee can make any addition or alterations in the tenanted premises and can alter the very nature of the premises without the consent of the lessor without changing the outer face of the premises. The lessee cannot further construct anything on the tanky which belongs to the lessor.
5.16. In the agreement to sell, it is mentioned that owners have agreed to sell the property consisting of 2nd floor to Aruna Sood for a total sale consideration of Rs.1,10,000/ (out of which Rs.1,00,000/ paid on 12 different dates ranging from 13.03.1985 to 22.05.1985) and Rs.1,000/ was to be paid on getting the possession. For proper appreciation of terms 2 to 7 are reiterated as under: "2. The accommodation on the IInd floor will be used only as Residential and no commercial sign board will be displayed.
3. That the party no. 2 has given the unbuilt possession of the second floor of House no. D96, Saket, New Delhi to party no. 1 except the adjoining passage connecting to staircase which is CS No. 8402/16 Page 16 of 29 required for the purpose of cleaning of the tanky is the common space for party no. 2 and party no. 1 (since the tanky belongs to party no.2)
4. That the party no. 2 shall obtain the necessary permission to execute the sale deed in favour of party no. 1. Execution of sale deed will be the responsibility of party no. 2 but all the expenses on account of the registration shall be borne by the party no. 1.
5. That if any time the paramount lessor i.e. DDA impose any penalty, party no. 1 will be liable to pay the same for the IInd floor only.
6. That the first party will be at liberty to construct anything on the IInd floor and IInd party will not interfere in the construction in any manner without changing the outer face of the premises. Party no. 1 cannot further construct anything on the tanky which belongs to party no. 2.
7. That if the ownership right of the second floor are not transferred in any case or some disputes arises in that event the second party will indemnify the first party for the cost of construction and cost of second floor unbuilt i.e. Rs.1,10,000.00 (Rupees one lac and ten thousand only) from the date of this agreement."
5.17. By referring these provisions, the Ld. Counsel for the defendants vehemently submitted that there was clear intention of the plaintiffs to sell the 2nd floor of their house for total consideration and only requirement to fulfill that agreement to sell was to obtain necessary permission to execute the sale deed which was the responsibility of the plaintiffs. He also referred the power of attorney CS No. 8402/16 Page 17 of 29 Ex. DW1/3 alleged to have been executed by the plaintiffs in favour of Sh. J.N. Sood, brother of defendant Prem Prakash Sood authorizing to manage the 2nd floor. For proper appreciation of that terms and conditions of document, the alleged assigning of power by the plaintiffs to the said power of attorney are reiterated as under: "1. To manage and control second floor of our House no. D96, Saket with sky rights and to represent before each and every concerned office/officer department.
2. To construct the second floor, to apply for permit to receive quotas etc. to complete the second floor to occupy the second floor and to use the enjoy the construction made on second floor of House no. D96, Saket, New Delhi
3. To rent out the second floor in whole on in party to anybody he likes, to receive rent, to receive the same and issue receipts.
4. To apply to DDA/MCD or any other authority for the mutation of second floor in the name of Smt. Aruna Sood, R/o G39, Saket, New Delhi to execute, sign, and present all kinds of representation in deeds to get the property mutated in the name of Smt. Aruna Sood.
5. To appoint any one as special/ general attorney for any or all acts to be performed by the attorney."
5.18. The Ld. Counsel referring to power of attorney submitted that there was clear intention of the parties to sell the property in question to Aruna Sood by the plaintiffs and that is why no rent was ever demanded or paid by the defendants and deed of lease was written just to avoid objection by the DDA while converting the property from leasehold to freehold.
CS No. 8402/16 Page 18 of 295.19. These submissions made by Ld. Counsel for defendants have been vehemently refuted by Ld. Counsel for the plaintiffs stressing that agreement to sell was executed only for the security purposes and was never acted upon. In this context he submitted that property in question was allotted to Sh. H.L. Khanna, husband of Smt. Kanta Khanna, plaintiff no. 1 (now deceased) and father of plaintiffs no. 2 to 7 by way of perpetual lease Ex. PW1/X1 on 24.08.1979. As per clause 5(a) he was not competent to sell, transfer etc for the period of 10 years except with the consent of lessor in writing. For proper appreciation of these documents, the relevant clause 5(a) of this document is reiterated as under: "5(a) The Lessees shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the Residential plot except with the previous consent in writing of the Lessor which he shall be entitled to refuse in his absolute discretion.
Provided that, such consent shall not be given for a period of ten years from the commencement of this Lease unless, in the opinion of the Lessor, exceptional circumstances exists for the grant fo such consent.
Provided further that, in the event of the consent being given the Lessor may impose such terms and conditions as he think fit and the Lessor shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. the difference between the premium paid and the market value) of the Residential plot at the time of sale, transfer, assignment or parting with the possession, the amount to be recovered being fifty percent of the unearned increase and the decision of the Lessor in respect of the market value shall be final and binding.
CS No. 8402/16 Page 19 of 29Provided further that the Lessor shall have the preemptive right to purpose the property after deducting fifty percent of the unearned increase as aforesaid. "
5.20. By referring this clause of the lease, the Ld. Counsel for plaintiffs submitted that there was no legal bar to transfer the part of leasehold property even within the period of 10 years as permission could be sought in exception circumstances of paucity of funds. In this context, he further submitted that as per clause 4 of his lease deed, the lessee was required to raise construction within a period of two years i.e. w.e.f. 30.09.1979. For proper appreciation, the relevant clause 4 of lease deed Ex. PW1/X1 is reiterated as under: "4. The Lessee shall, within a period of two years from the 30 th day of April, one thousand nine hundred and seventy nine (and the time so specified shall be of the essence of the contract) after obtaining sanction to the building plan, with necessary designs, plans and specifications from the proper municipal or other authority, at his own expense, erect upon the Residential Plot and complete in substantial and workmanlike manner an residential building for private dwelling with the requisite and proper walls, sewers and drains and other conveniences in accordance with the sanctioned building plan to the satisfaction of such municipal or other authority."
5.21. By referring this clause, it is argued that Sh. H.L. Khanna got sanctioned the plan and built the ground and 1 st floor and part of 2nd floor and in between he died leaving being his wife and six CS No. 8402/16 Page 20 of 29 daughters and due to paucity of funds, they inducted the defendant in half unbuilt 2nd floor and raised loan to complete the rest unbuilt portion at a meager rent of Rs.1,100/ per month and that loan was to be adjusted against the rent as evident from clauses of lease deed referred above that the financial assistance was rendered by the defendant from the account of his wife and as a security, he got the agreement to sell which was never acted upon. In this context, in reference to clause 7 of the agreement to sell and considering which shows that intention of the parties was clear and it was very much mentioned in the said clause that in case the rights of the ownership of the said floor are not transferred in any case or some dispute arises, in that event, second party shall indemnify the 1st party for the cost of construction cost of 2nd floor unbuilt i.e. Rs.1,10,000/ from the date of the agreement. It was stressed that the agreement to sell was executed just as a security to facilitate the refund of the said amount raised by the plaintiff as a loan. While argumenting further, it was also submitted by the plaintiffs that even the attorney holder did not act in any manner. He did not act to manage and control the property and further to complete the building; he did not apply to DDA/MCD or any other authority for the mutation of 2 nd floor in the name of Aruna Sood etc. for which he was allegedly authorized by the plaintiffs. It is also come up from the record that no effort was ever made by the defendants to seek permission after the expiry of 10 years of the original lease in favour of Sh. H.L. Khanna and even in the said period as there was no bar seeking in the said period. No effort was made by Aruna Sood till her death in year 2001, persuading the plaintiffs to execute the sale deed in her favour consequent to agreement to sell. Even the defendants who claimed as legal heirs alongwith her sons even did not ask the plaintiff to execute sale deed till the present suit CS No. 8402/16 Page 21 of 29 was filed for vacation of the premises on the ground of termination of lease on 31.05.2005 by sending a legal notice to that effect on 21.04.2005. So, this does depict that agreement to sell was executed just as security and not to be acted upon.
5.22. It is also relevant to mention here that no witness of alleged power of attorney has been examined nor the notary public was produced to authenticate the existence of said document. Furthermore, the defendants have not placed on record any evidence worth the same as how much amount was spent allegedly on the construction of 2 nd floor. The signatures of the plaintiffs on documents Ex. DW1/1 and Ex. DW1/3 are even disputed on agreement to sell and power of attorney that on one hand, minor daughter of Kanta Khanna, plaintiff no. 1 was minor and on the other hand their alleged signatures which are denied by the plaintiff do not tally with signatures on the relinquishment deed Ex. PW1/X2 dated 24.08.1998 executed by the daughters in favour of their mother duly registered in the office of Registrar, stating even to a bare eye, these signatures do not resemble in any manner in the shape and style with the signatures appearing on these documents. Ld. Counsel for the plaintiffs has also submitted that no effort was made by the defendants to get compared their signatures with the signatures of cogent and convincing evidence led on the part of the defendants. The documents do not stand proved stressing that in fact defendant Prem Prakash Sood made all copies of draft without date after putting their respective signatures and subsequently prepared the documents ante dated by forging the signatures and even the receipts of payments are without dates. He also submitted that after receipt of the notice of termination of tenancy for the first time, defendants came into motion and moved the application before the authorization to transfer of water CS No. 8402/16 Page 22 of 29 and electricity meter in their name which was opposed by the plaintiffs, though temporarily the defendants succeeded in getting the said meter transferred in their name which subsequently on their protest and lodging of complaints, was again stood transferred to the name of plaintiffs. So it is submitted that defendants were aware of their status as of tenant, that was the reason that they did not act upon the agreement to sell and loan so paid stood adjusted against the rent and taking undue advantage of widowed plaintiff having six daughters, the defendants did not pay rent even after 1995 and being compelled by the conduct of the defendants, the plaintiffs sent the notice terminating the tenancy and also raised the demand of balance rent and meter charges etc. 5.23. It can be culled out from the ocular and documentary evidence on record that admitted property no. D96, Saket was allotted to Sh. H.L. Khanna, husband of Late (Smt.) Kanta Khanna, plaintiff and father of plaintiffs no. 2 to 7, who died in January, 1985 as per death certificate placed on record. As per version of the plaintiffs that for completion of 2nd floor construction, they required money and gave halfbuilt area on rent to the defendants, who agreed to advance loan of Rs.1,10,000/ to complete the remaining construction to which the defendant agreed. The submissions so made by the Ld. Counsel for the plaintiffs as referred to above, appear plausible and tenable in the light of the conduct of the defendants as discussed above during the submissions made by the Ld. Counsel for the plaintiff which do substantiated in the light of act and conduct of the defendants as per material on record. So taking these facts into consideration, it can be held that there was relationship of landlord and tenant inter se the plaintiff and defendant Prem Prakash Sood (now deceased), so this CS No. 8402/16 Page 23 of 29 issue is decided in favour of the plaintiffs and against the defendants.
Issue no. 2 5.24. As per findings of issue no. 1, plaintiffs were within their rights to terminate the tenancy as according to plaintiffs, Delhi Rent Control Act was not applicable. There is no evidence contrary to the contentions. Moreover, defendants in their written statement or counterclaim have not raised any plea to suggest that Delhi Rent Control Act is applicable. The plaintiff witness was not questioned during crossexamination as to ascertain if the tenanted premises falls in the said Act. Moreso, Delhi Rent Control Act shall be applicable to the areas that have been notified under First Schedule. So the tenancy stood legally terminated by the legal notice dated 21.04.2005 w.e.f. 31.05.2005, the receipt of which is not denied and the same was duly replied, so this issue is decided in favour of the plaintiffs and against the defendants.
Issue no. 3 5.25. As discussed above, while discussing in issue no(s) 1 and 2 since the tenancy stood terminated w.e.f 31.05.2005, so the plaintiffs are admitted to the relief of possession seeking ejectment of the defendants from the demised premises. So, this issue is decided in favour of the plaintiffs and against the defendants.
Issue no. 4 5.26. Admittedly, the defendants have not paid any rent as they themselves admitted in the written statement and Sh. Kapil Sood, the defendant appeared as witness did admit having not paid any rent. As per version of the plaintiffs, they owe a loan of Rs.1,10,000/ which was CS No. 8402/16 Page 24 of 29 adjusted against rent for the period of 10 years. The tenancy was created in year 1985. Even as per statement of Mr. Kapil, they had shifted to the premises in question in last December, 1985 or January, 1986, so after adjusting the rent for 10 years, the defendants are liable to pay rent w.e.f. January, 1996 onwards at the rate of Rs.1,100/ per month beside electricity and water charges. No cogent and convincing evidence has been led by either of the party if defendant failed to pay electricity and water charges during th period of 10 years as there are some receipts showing payment towards water and electricity charges in year 1994 as well. So, defendants cannot be held for payment of those charges upto January, 1996. From January, 1996 to 31.05.2005, the defendants are liable to pay rent at the rate of Rs.1,100/ per month plus electricity and water charges of Rs.400/ per month but entitled only for three years immediately preceding to 31.05.2005 and after the termination of tenancy, the defendants are liable to pay damages/ mesne profits towards use and occupation of premises in an unauthorized manner. The plaintiffs in para 18 of the plaint have claimed damages/mesne profits at the rate of Rs.50,000/ per month. But no evidence worth the same has been led by the plaintiffs to prove the prevailing market value. The premises was let out for Rs.1,100/ per month exclusive of water charges and house tax. But bearing in view the soaring prices, I deem it fit to allow Rs.5,500/ as house rent beside Rs.1,500/ per month as electricity and water charges w.e.f. 01.06.2005 till vacation of the possession. So, this issue is decided accordingly in favour of plaintiffs and against the defendants.
Issue no. 5 5.27. The point invoked in this issue as to whether plaintiff is entitled to any interest on the amount of arrears of rent and amount CS No. 8402/16 Page 25 of 29 determined as damages/mesne profits for unauthorized use and occupation of demised premises, since the plaintiffs have been and are being deprived of legal claim of theirs, so they are entitled for the interest at the rate of 9% per annum on the amounts till realization. So, this issue is decided accordingly in favour of the plaintiffs.
Issue no. 6 5.28. By way of counterclaim, the defendants have sought relief of specific performance on the basis of alleged agreement to sell dated 02.07.1985.
5.29. As discussed above while discussing issue no. 1, the defendants never acted in carrying out the terms of agreement to sell till the date of filing of present suit. Smt. Aruna Sood died in year 2001. She during her lifetime, never asked the plaintiffs to act upon the agreement to sell. Even her alleged attorney holder never approached the plaintiffs nor any authority for grant of permission as stipulated in the agreement to sell. So, in the suit now seeking the counterclaim in the written statement on 17.06.2006 cannot be said to be within the period of limitation having claimed so much after the expiry of three years of the alleged execution of that document. It is not the case of the defendants that they had approached to the plaintiffs ever and plaintiffs refused to adhere to their request. So this issue is decided against the defendants holding that relief of counter claim for seeking decree of specific performance on the alleged agreement to sell at 02.07.1985 is barred by time and as such no relief for that can be allowed.
CS No. 8402/16 Page 26 of 29Issue no. 7 5.30. The point posed in this issue as to whether defendants have locus standi to seek specific performance of alleged agreement to sell dated 02.07.1985 allegedly executed by the plaintiffs in favour of defendant's wife Smt. Aruna Sood, by way of counter claim. As discussed above, while discussing issue no. 1, the plaintiffs filed the suit against Prem Prakash Sood to whom it is alleged to have let out the premises. Admittedly, Aruna Sood expired in the year 2001 much before filing of the present suit in year 2005. So defendants were within the right to claim on alleged agreement to sell. It is separate theory, if they succeeded or succeed in establishing the same, so defendants being LRs of Aruna Sood have locus standi. So, this issues is decided in favour the defendants.
Issue no. 8 5.31. As discussed above while discussing issue no. 1, there is no evidence on record that Smt. Aruna Sood (now deceased) was ready and willing to perform her part of contract as she during her lifetime ad admitted by the defendants, as discussed above while discussing the statement of Kapil Sood, defendant, never asked the plaintiffs for the specific performance on the basis of agreement to sell dated 02.07.1985. So, this issue is decided accordingly against the defendants and in favour of the plaintiffs.
Issue no. 9 5.32. The plea of the plaintiffs is that counterclaim preferred by the defendants is the counter blast to the suit for ejectment and recovery of mesne profits. In view of the discussion of issue no. 1, the plea of plaintiffs is tenable and holds matter. So, this issue is decided CS No. 8402/16 Page 27 of 29 in favour of the plaintiffs and against the defendants.
Issue no. 10 5.33. From the cumulative discussion of issue no(s) 1 to 9, the defendants are not entitled to any relief by way of counterclaim. Rather, the defendants are liable to pay rent @Rs.1,100/ alongwith Rs.400/ as water and electricity charges per month w.e.f. 01.01.1995 to 31.05.2005 but only entitled for three years immediately preceding to 31.05.2005 i.e. Rs.54,000/ and @ Rs.5,500/ as rent alongwith Rs.1,500/ as electricity and water charges (total Rs.7,000/ per month) w.e.f. 01.06.2005. The suit was filed in the month of September, 2005, so the amount on this count comes to the tune of Rs.21,000/. Both these amounts are payable with interest @9% per month and defendants are further liable to at the rate of Rs.5,500/ per month as rent and Rs.1,500/ as water and electricity charges from September, 2005 till vacation of demised premises alongwith interest @ 9 % per annum. So before passing this issue, it may be mentioned here that no cogent and convincing evidence has been led as to how they are entitled to Rs,17,00,000/ for losses/damages due to alleged unauthorized construction, so this claimed is disallowed. This issue is accordingly decided against the defendants and in favour of plaintiffs.
Relief
6. In final analysis, in view of observation made above, the suit of the plaintiffs seeking ejectment from the demises premises consisting of 2nd floor, D96, Saket, New Delhi alongwith recovery of rent and mesne profits which come to Rs.75,000/ (Rs.54,000/ + Rs.21,000/) uptill 31.08.2005 alongwith interest @ 9% per month on this amount and also to realize the damages at the rate of Rs.5,500/ CS No. 8402/16 Page 28 of 29 per month plus Rs.1,500/ per month as water and electricity w.e.f. 01.09.2005 till date of vacation of premises alongwith interest @ 9% per annum, is decreed accordingly and counterclaim is dismissed accordingly. However, parties are left to bear their own cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signed by VINEETA VINEETA GOYAL Pronounced in the Open Court GOYAL Date: 2018.11.30 on 29.11.2018 16:32:18 +0530 (Vineeta Goyal) Additional District Judge South District: Saket: New Delhi CS No. 8402/16 Page 29 of 29