Delhi District Court
M/S Algoquant Financials Llp vs Shri Mahabir Prasad Jindal on 20 April, 2023
IN THE COURT OF MS NEHA GARG, CIVIL JUDGE-01,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No:-DLCT03-000027-1999
CS No.593707/2016
M/s Algoquant Financials LLP
Having its office at 2nd Floor,
4/11, Asaf Ali Road,
New Delhi-110002.
Through Mr. Devansh Gupta, Partner
Tel No:- 0-9910032394
Email:- [email protected] .............. Plaintiff
versus
1. Shri Mahabir Prasad Jindal,
2. Shri Ravinder Kumar Jindal,
Sons of Shri Shiv Ram Jindal,
Residents of Jindal Niwas, Delhi Road,
Model Town, Hissar,
Haryana.
3. Ravindra Tubes Limited,
B-4/21, Asaf Ali Road,
New Delhi-110002 ..........Defendants
Date of institution of suit : 10.12.1999
Date on which reserved for judgment : 20.10.2022
Date of pronouncement of Judgment : 20.04.2023
SUIT FOR RECOVERY OF POSSESSION AND RECOVERY OF
ARREARS OF RENT AND DAMAGES FOR USE AND
OCCUPATION
JUDGMENT
1. The present suit was originally filed by Mr. Sawapan Banerjee CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 1 of 26 and Ors for recovery of possession, arrears of rent and damages for use and occupation. The brief facts of the case, as culled out from the bare perusal of the plaint, are as follows:
"Late Shri Soami Nath Banerjee was the owner of the building known as "Banerjee Buildings", No. B-4/21 and 4/22, Ajmeri Gate Scheme, Asaf Ali Road, New Delhi and he died on 08.02.1987 leaving behind his last Will and Testament dated 28.09.198, which has been probated by the Hon'ble High Court of Delhi. By virtue of the said Will, the plaintiffs have become owners and landlords of the aforesaid properties. By registered Lease Deed dated 23.07.1980, Late Sh. Soaminath Banerjee had inducted defendants No.1 and 2 as tenants in respect of the premises No. B-4/21-22, comprising of half of the aforesaid premises which means left side half of the entire first floor of the premises known as "Banerjee Buildings"
No.B-4/21 and 22, Asaf Ali Road, New Delhi situated at main Asaf Ali Road, New Delhi comprising of two 'L' shaped halls (one at the front and one at the rear side of the building), two WCs and half courtyard and half front verandah with common use of two front and rear stairs and the common passages which are to be used only as passage and kept free from any obstruction measuring about 2655 sq. ft. fully described in Red colour in the site plan (hereinafter referred to as 'the suit property'). The duration of the aforesaid Lease Deed was for a period of five years only from 23.07.1980 and the said Lease Deed has expired on 23.07.1985. No renewal was made after 23.07.1985. Thus, the tenancy of defendants came to an end by efflux of time under Section 111 of Transfer of Property Act and the defendants became monthly contractual tenant under Late Shri Soaminath Banerjee, father of the plaintiffs. Defendant No.3 is in occupation of the suit property in which the defendants No.1 and 2 are the directors. On the death of Shri Soaminath Banerjee on 08.02.1987, the defendants became tenants under the plaintiffs and the defendants duly CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 2 of 26 attorned them as their landlords and owners of the tenanted property. The plaintiffs served first legal notice dated 11.1.1989 upon the defendants under Section 60A of The Delhi Rent Control Act for enhancing the rent by 10% i.e., Rs. 2,800/- plus Rs. 200/- = Rs. 3000/- w.e.f. 01.03.1989. The rent stood enhanced from Rs. 2800/- per month to Rs. 3000/- per month w.e.f. 01.03.1989, but the defendants have failed to pay the enhanced rent. In the above circumstances plaintiff filed a suit for recovery of Rs. 12,970/- against the defendants being Suit No. 200/91 titled as 'Swapan Banerjee & Ors. vs. Shri Mahabir Prasad Jindal and Ors'. The said suit was decreed by the Court of Sh. N.P. Kaushik, the then Ld. Civil Judge, Delhi for Rs. 8680/- at the monthly rent of Rs. 3080/- along with interest @ 18% per annum from 30.09.1991 till realization besides Rs. 250/- as notice charges and Rs. 2221/- as costs of the suit. The defendants No.1 and 2 preferred no appeal against the said judgment and decree and hence the said judgment and decree became final and binding upon the defendants No.1 and 2. Thereafter, plaintiffs served second legal notice dated 06.02.1992 upon the defendants for further enhancement of the rent from Rs. 3080/- plus 10% of the agreed rent of Rs. 2800/- plus Rs. 280/- as increase in rent totaling to Rs. 3360/- per month. The defendants sent their reply dated 13.02.1992 to the said notice. Thereafter, the plaintiffs filed an eviction petition against the defendants under Section 14(1)(a)(b)(c)(j) of the Delhi Rent Control Act on 31.01.1992 being case No. 30/92 titled as 'Swapan Banerjee & Ors. vs. Shri Mahabir Prasad Jindal & Ors'. By order dated 08.02.1995, the Court of Sh. R.S. Khanna, the then Addl. Rent Controller, Delhi directed the defendants to pay the arrears of rent from 01.03.1989 onwards @ Rs. 3,080/- within one month from the date of passing the order and the case was fixed for 18.09.1995 for the evidence of the plaintiffs. During the pendency of the said eviction case, the CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 3 of 26 plaintiffs served the third legal notice dated 21.02.1995 upon the defendants for further increase in rent by 10% i.e., Rs. 3,360/- plus Rs. 280/- = Rs. 3,640/- per month and accordingly, the rent stood enhanced from Rs. 3,360/- to Rs. 3,640/- per month. The jurisdiction of the Rent Controller, Delhi was ousted when the rent exceeded Rs. 3500/- per month. The above case No. 30/92 was adjourned from time to time and was finally fixed for 09.05.1997 in the Court of Addl. Rent Controller, Delhi in which counsel of both the parties were present and the defendant's counsel had clearly admitted that the defendants have been duly served with the legal notice dated 21.02.1995 served on behalf of the plaintiffs and the rent was enhanced to Rs. 3,640/-. Thus admittedly, the rent was increased to R. 3,640/- per month and the defendants lost protection of the Delhi Rent Control Act. The tenancy of the defendants start from 23rd day of English calendar month and ends on the mid night of 22nd day of the following month according to English calendar month. The defendants are in arrears of rent from 01.06.1997 to 22.11.1999 i.e., two years five months and two days at Rs. 3640/- per month amounting to Rs. 1,08,230/-. The defendants deposited arrears of rent in the Court of Addl. Rent Controller, Delhi at Rs. 3,080/- per month instead of Rs. 3,640/- per month. Plaintiffs served final legal notice dated 14.10.1999 upon the defendants terminating the tenancy of the defendants No.1 and 2 in respect of the suit property. Defendants have duly received the said notice and have sent their reply dated 12.11.1999. In terms of registered Lease Deed dated 23.07.1980 vide clause No. 13, the defendants No.1 and 2 are under legal obligations to deposit the payment of electricity, power and water charges etc. with the concerned authorities for the meters under their use. The plaintiffs understand that there is a huge outstanding amount of electricity dues for K. No. 2782359 and K. No. 278231. Now there is no lease in respect of the suit property in force CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 4 of 26 between the parties. The monthly tenancy of the defendants also stood terminated by a valid notice dated 14.10.1999 from the mid night of 22.11.1999. The plaintiffs have become entitled to receive vacant and peaceful possession of the suit property. The plaintiffs claim damages @ Rs. 50,000/- per month from the defendants for the period from 23.11.1999 to 10.12.1999 @ Rs. 50,000/- amounting to Rs. 30,000/-. The plaintiffs also claim future damages at the rate of Rs. 60,000/- per month which is the prevailing market rate, till the disposal of the present suit. The plaintiffs claim a sum of Rs. 1,47,386/- from the defendants as per details given below:-
1 Arrears of rent from 01.06.1997 to 22.11.1999 @ Rs. 3,640/- (29 months and twenty-two days as claimed in para no. 14 of Rs. 1,08,230/-
the plaint.
Add: Different in rate of rent Rs. 3,640/- minus Rs.
3080/- = Rs. 560/- less
received from 01.09.1996
to 31.05.1997 (nine Rs. 5,040/-
months) as claimed in para _____________
no. 14 of the plaint. Rs. 1,13,270/-
2 Interest on the above
amounts @ 18% per annum
from the date of receipt of
the notice dated 14.10.1999
(duly received by
defendants on 18.10.1999)
till the filing of the present
suit from 18.10.1999 to
CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 5 of 26
10.12.1999 i.e., 54 days. Rs.3,016/-
3 Damages for use and
occupation from 23.11.1999
to 10.12.1999 i.e., till the
date of filing the present
suit at Rs. 50,000/- per Rs. 30,000/-
month.
4 Notice charges Rs. 1,100/-
Rs. 1,47,386/-
The plaintiffs are also entitled to recover interest on the above amount @ 18% per annum from the date of service of the final legal notice. The defendants have no legal right to retain the suit property for an indefinite period as the contractual tenancy has already stood terminated by the plaintiffs."
2. Summons of the suit were issued to the defendants by the Ld. Predecessor of this court. Thereafter the matter was listed for filing of written statements on behalf of defendants.
3. Written statement has been filed on behalf of defendants, wherein averments made in the plaint were denied. In their written statement, defendants have submitted to the following effect:
"This Court has no jurisdiction to entertain, try and adjudicate the present suit in view of the fact that the agreed rent of the premises is Rs. 3,080/- per month. The present suit is not maintainable as no cause of action has arisen in favour of plaintiffs and against the defendants. The present suit is bad on account of non-joinder of necessary party and also bad on account of joinder of different causes of action as CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 6 of 26 alleged by the plaintiffs. Plaintiffs have not made M/s Hisar Metal Industries Ltd., which are in possession of let out premises in accordance with the terms of lease deed executed in the year 1980, a party to the present suit. In accordance with clause 7 of the lease deed executed between the parties, the defendants No.1 and 2 have right to use the suit premises by the abovenamed two companies and also to a limit of four more registered companies in which one of defendants is a director and directly connected. Plaintiffs have not come to this Court with clean hands and have concealed the material facts from this Court. Plaintiffs have an ulterior motive to get the premises vacated even by alleging those facts which are wrong even to the knowledge of the plaintiffs. The lease of the suit premises has been renewed from time to time and by virtue of holding over, the defendants are entitled to use and occupation of leased premises and which has been assented by Sh. Soami Nath Banerjee and the plaintiffs. The agreed rate of rent was previously Rs. 2,800/- per month. The notice sent by Sh. R.B. Mathur on behalf of plaintiffs was illegal and the defendants accordingly called upon the plaintiffs to withdraw the said notice and desist from proceeding further in matter vide reply dated 13.2.92. At no time the defendants agreed and paid the rent of Rs. 3,360/- per month and therefore question of any further enhancement by the plaintiffs does not arise. The rent of premises is Rs. 3,080/- per month only. The last rent paid was only Rs. 3,080/- and therefore question of admission of increased rent to Rs. 3,640/- by the defendants do not arise. Vide letter dated 09.08.1997 plaintiffs were apprised that the rent of the leased premises is only Rs. 3,080/- per month, which is well within the knowledge of the plaintiff. After dismissal of petition, rent of Rs. 3,080/- has been given to the plaintiffs. Plaintiffs are refusing to accept the agreed rent of Rs. 3,080/- per month which has been sent by cash orders to the plaintiffs by the defendants. Defendants CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 7 of 26 have tendered and are willing to pay the agreed rent of Rs. 3,080/- per month but the plaintiffs are refusing the accept the same. Plaintiffs were duly apprised about the illegal demand notice dated 07.08.1999 served through M/s S.R. Yadav and company. The said notice was duly replied on 30.08.1999 and the plaintiffs were apprised that the defendants were neither the defaulters in payment of water or electricity charges. Plaintiffs were also apprised of the fact that the defendants have not deposited any rent in the Court of Addl. Rent Controller, Delhi and the defendants have paid agreed rent of Rs. 3,080/- per month which fact had been admitted by plaintiffs in notice dated 07.08.1999 and has also been clarified specifically in reply dated 30.08.99. The plaintiffs' notice and demands are illegal and they are not entitled to claim any damages from the defendants. The defendants are occupying premises as tenants on monthly rent of Rs. 3,080/- only. Defendants are lawfully occupying the tenanted premises and are making payment of agreed rate of rent i.e., Rs. 3,080/- per month to the plaintiffs. The suit of the plaintiffs is without any cause of action and is liable to be dismissed under Order VII Rule 11 of CPC. This Court has no jurisdiction to try and adjudicate the present matter."
4. Replication was filed on behalf of the plaintiff to the written statement filed on behalf of defendants wherein all the averments made in the plaint were reaffirmed and contents of written statement filed on behalf of defendants were denied.
5. On completion of pleadings, following issues were framed in the present matter by Ld. Predecessor of this Court on 18.02.2002:-
1.Whether the rate of rent is Rs. 3640/- per month or Rs. 3080/- per month? OP Parties
2. Whether the plaintiff is entitled to relief of possession as claimed CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 8 of 26 in the plaint? OPP
3. Whether the plaintiff is entitled to damages at the rate of 50,000/- per month or at what rate/for what period? OPP
4. Relief.
Evidence:-
6. Thereafter the matter was listed for recording of plaintiff's evidence. In order to prove his case, the plaintiff got Sh. Sorabh Banerjee as PW-1. PW-1 relied on the following documents:-
Ex.PW1/1 : Site plan.
Ex.PW1/2 : Copy of the notice dated 14.10.99
Ex.PW1/3 : Postal receipts.
Ex.PW1/4 : AD card.
Ex.PW1/5 : Reply of defendant.
Ex.PW1/6 : Original lease deed.
Ex.PW1/7 : Notice served by plaintiff.
Ex.PW1/8 : Reply to the said notice.
Ex.PW1/9 : Copy of Order.
PW-1 was duly cross examined.
Sh. Ajay Saxena was examined as PW-2. PW-2 tendered his evidence by way of affidavit, Ex.PW2/A. PW-2 was duly cross examined.
Thereafter plaintiff's evidence was closed vide order dated 15.05.2003 and the matter was listed for recording of defendant's evidence.
7. In defendant's evidence, Mr. J.C. Jain was examined as DW-1. DW-1 tendered his evidence by way of affidavit, which is Ex.DW1/1.
CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 9 of 26DW-1 was duly cross examined.
Therefore, defendant's evidence was closed on 09.09.2003 separate statement of Ld. Counsel for defendant and the matter was fixed for final arguments.
8. It is pertinent to mention here that on 02.03.2022, M/s Algoquant Financials LLP had moved an application under Order 22 Rule 4 of CPC and under Order 1 Rule 10 of CPC for its substitution in place of the plaintiffs on the ground that it has purchased the suit property from the plaintiffs vide registered Sale Deed dated 21.02.2022. Vide Order dated 07.09.2022, the said application was allowed and M/s Algoquant Financials LLP was impleaded as plaintiff in the present suit in place of earlier plaintiffs and amended memo of parties reflecting the name of new plaintiff was taken on record.
9. After final arguments were heard, in view of the pleadings of the parties and the material available on record, the Court framed the following two additional issues: Issue No.4: Whether plaintiff is entitled to decree of recovery of arrears of rent, as prayed for? OPP Issue No.5: Whether the present suit is bad for nonjoinder of necessary party i.e. M/s Hisar Metal Industries Ltd? OPD
10. After framing of the aforesaid additional issues, matter was fixed for leading of additional evidence, if any, on the aforesaid issues. Record reveals that no additional evidence was led by plaintiff on the aforesaid additional issues. However, defendant examined Sh. Thomas Cherian as CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 10 of 26 DW-2. DW-2 was cross examined and discharged. Additional DE was closed on separate statement of Ld. Counsel for defendant.
11. Final Arguments were heard at length and the record is carefully perused by this court.
After giving my thoughtful consideration to the pleadings of the parties, the entire evidence available on record and after hearing the submissions of both the sides, my issue wise finding in the present matter is as follows:
Issue No.1: Whether the rate of rent is Rs. 3,640/- per month or Rs. 3,080/- per month? OP Parties
12. The onus to prove the present issue is on the parties. While it is the case of plaintiff that rent of the suit premises stood enhanced to Rs.3,640/- vide virtue of legal notice dated 21.02.1995, it is the case of defendants that they continued to be tenants @Rs.3,080/- per month. It is an admitted case between the parties that defendants No.1 and 2 were inducted as a tenant in the suit property by Late Sh. Soaminath Banerjee by virtue of a registered Lease Deed dated 23.07.1980. The registered Lease Deed is Ex.PW1/6 and as per the admitted Lease Deed, the suit property has been let out at monthly rent of Rs.2,800/-. It is also an admitted case between the parties that the duration of the aforesaid Lease Deed was for a period of five years, which expired on 23.07.1985. It is also not denied that no renewal of Lease Deed was made after 23.07.1985. Thus, it is to be seen that after the expiry of the period of the Lease Deed dated 23.07.1980, defendants became monthly tenants in respect of the suit property.
CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 11 of 2613. It is the case of plaintiffs that vide first legal notice dated 11.01.1989 (Mark A) served on the defendants under Section 6A of the Delhi Rent Control Act, 1958 (in short 'the DRC Act'), the rent of the suit premises stood enhanced to Rs.3,080/- with effect from 01.03.1989 (10% increase in the agreed rate of rent of Rs. 2,800/-). Defendants have admitted in their written statement the receipt of legal notice dated 11.01.1989. Defendants have also not denied that plaintiffs had instituted a suit bearing No.200/91 titled as 'Swapan Banerjee & Ors. vs. Shri Mahavir Prasad Jindal and Ors.' and the same was decreed in favour of the plaintiffs at the monthly rent of Rs.3,080/- from 30.09.1991. It is further the case of plaintiffs that they had served a second legal notice dated second legal notice dated 06.02.1992 (Mark B) upon the defendants for further enhancement of the rent from Rs. 3,080/-. It is the case of plaintiffs that the rent was enhanced to Rs. 3,360/- per month (10% increase in the earlier rate of rent of Rs. 3,080/-) by virtue of legal notice Mark B. Defendants have replied to legal notice Mark B by their reply dated 13.02.1992 (Mark C). Defendants have not denied the receipt of legal notice dated 06.02.1992 or sending a reply dated 13.02.1992. However, it is the case of defendants that the said legal notices sent on behalf of plaintiffs was illegal. At this juncture, it is pertinent to examine Sections 6A and 8 of the DRC Act and the same reads as under:
"6A. Revision of rent.- Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 12 of 26 tenant, may be increased by ten per cent every three years.
8. Notice of increase of rent.- (1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and in so far as such increase is lawful under this Act, it shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty days from the date on which the notice is given.
(2) Every notice under sub-section (1) shall be in writing signed by or on behalf of the landlord and given in the manner provided in section 106 of the Transfer of Property Act, 1982 (4 of 1882).
A Division Bench of the Hon'ble High Court of Delhi in M/s. Shalimar Paint Ltd. vs. Bani Jagtiani Trust & Ors. 2004 (1) RCR 137 upheld the decision of the Trial Court wherein it was held that after expiry of three years of tenancy, when a notice was duly served for increase of rent by 10%, the rent stood increased to Rs. 3,630/- per month after the expiry of one month from the date of service of notice and thus the suit premises went outside the purview of the Delhi Rent Control Act and the provisions there under could no longer be made applicable to the suit property. In the light of the well-settled legal position noted above, it has to be seen in the present case that in view of the notice dated 11.01.1989 (Mark A), which is duly admitted having been received by the defendants, the rent of the suit premises stood enhanced to Rs.3,080/- and vide legal notice dated 06.02.1992 (Mark B), which is also duly admitted having been received by the defendants, the rent of the suit premises stood enhanced to Rs.3,360/- with effect from 01.03.1992.
CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 13 of 2614. It is the case of plaintiffs that they had filed an eviction petition against the defendants under Section 14(1)(a)(b)(c)(j) of the Delhi Rent Control Act on 31.01.1992 being case No. 30/92 titled as 'Swapan Banerjee & Ors. vs. Shri Mahabir Prasad Jindal & Ors' and during the pendency of the said eviction case, plaintiffs had served a third legal notice dated 21.02.1995 on the defendants enhancing the rent to Rs.3,640/- (10% increase in the earlier rate of rent of Rs.3,360/-). The jurisdiction of the Rent Controller, Delhi was ousted when the rent exceeded Rs. 3,500/- per month. It is the case of the plaintiffs that in the above case No. 30/92, on 09.05.1997, the defendants' counsel had clearly admitted that the defendants have been duly served with the legal notice dated 21.02.1995 under Section 6A of the DRC Act, served on behalf of the plaintiffs and the rent was enhanced to Rs. 3,640/-. Plaintiff has relied on the certified copy of the statement given by Ld. Counsel for defendants in the said petition bearing No.30/92 and the same is Ex.PW1/8 (Court observation: reply dated 30.08.99 is also Ex.PW1/8). Plaintiff has also filed on record the certified copy of Order dated 09.05.1997 passed by the Ld. Addl. Rent Controller (Ex.PW1/9) whereby the eviction petition filed by the plaintiffs was dismissed in view of the statement given by Ld. Counsel for defendants that the rent of the suit premises stood enhanced to Rs.3,640/- by notice dated 21.02.1995.
15. Defendants have no denied the statement Ex.PW1/8 or the Order PW1/9. However, it is submitted by the defendants that the last paid rent was Rs.3,080/-, therefore, the question of admission of increase in rent CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 14 of 26 to Rs.3,640/- does not arise. As stated earlier, defendants have not denied the statement Ex.PW1/8, which led to the passing of the Order PW1/9. Statement Ex.PW1/8 is a clear and unequivocal admission on the part of the defendants that they have received the legal notice dated 21.02.1995 under Section 6A of the DRC Act, which entitles the landlord to increase rent by 10% after expiry of three years of tenancy. In view of statement Ex.PW1/8 (supported by Order Ex.PW1/9), plaintiff has duly established that by virtue of a legal notice dated 21.02.1995, the monthly rent of the suit property further stood enhanced to Rs.3,640/-. Merely because defendants have refused to accept the enhanced rent, the same will not dilute the legal effect of the various notices served to the defendants under Section 6A of the DRC Act enhancing the rent of the suit premises from time to time.
16. In light of the aforesaid discussion, it is clear that the rate of rent of the suit premises was enhanced to Rs.3,640/- by virtue of legal notice dated 21.02.1995. Accordingly, the present issue is decided in favour of the plaintiff and against the defendants.
Issue No.2: Whether the plaintiff is entitled to relief of possession as claimed in the plaint? OPP
17. The burden to prove the present issue is on the plaintiff. The facts which deserves to be taken into consideration while passing a decree of possession in favour of landlord/plaintiff in such like suits are:-
(a) existence of relationship of land lord and tenant or entry in possession of the suit property by defendant as tenant.
(b) determination of such relationship/tenancy by efflux of time or by a CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 15 of 26 valid notice sent by plaintiff to defendant u/S 106 of TPA duly served on the defendant.
(c) rent of the premises in question is more than Rs. 3500/- per month.
A bare perusal of the written statement reveals that the defendants have not denied that they are tenants in respect of the left side half of the entire first floor of the premises known as "Banerjee Buildings" No.B- 4/21 and 22, Asaf Ali Road, New Delhi situated at main Asaf Ali Road, New Delhi comprising of two 'L' shaped halls (one at the front and one at the rear side of the building), two WCs and half courtyard and half front verandah with common use of two front and rear stairs and the common passages which are to be used only as passage and kept free from any obstruction measuring about 2655 sq. ft. as shown in Red colour in the site plan Ex.PW1/1. As, has been discussed above, the rate of rent of the suit premises was enhanced to Rs.3,640/- by virtue of legal notice dated 21.02.1995. It is the case of plaintiffs that they have terminated the tenancy of the defendants by sending a legal notice dated 14.10.1999 (Ex.PW1/4), which has been replied to by the defendants vide reply dated 12.11.1999 (Ex.PW1/5). Defendants have admitted in their written statement that they have received legal notice Ex.PW1/4. In view of the admission of the defendants made in their written statement, it is clear that the tenancy of the defendants stood terminated from the midnight of 22.11.1999 by virtue legal notice dated 14.10.1999.
18. Thus, it is to be seen that plaintiff has duly established all the requirements for being entitled to a decree of possession against the defendants in respect of the suit premises. In light of the aforesaid discussion, the present issue is decided in favour of the plaintiff and CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 16 of 26 against the defendants.
Issue No.4: Whether the plaintiff is entitled to decree of arrears of rent, as prayed for? OPP
19. Onus to prove the present issue is on plaintiff. It is the case of plaintiff that defendants are in arrears of rent from 01.06.1997 till 22.11.1999 at the rate of Rs.3,640/- per month after adjusting the rent of Rs. 3,080/- per month already paid during the said period. It is not denied by the defendants that during the aforesaid period defendants have tendered rent only at the rate of Rs. 3,080/- per month. As stated earlier, the rent of the suit premises stood enhanced to Rs. 3,640/- vide Legal Notice dated 21.02.1995. Thus, it is to be seen that defendants are in arrears of rent of Rs. 560/- per month (the difference between the actual rate of rent i.e., Rs. 3,640/- per month minus the rate of rent paid at Rs. 3,080/- per month).
20. In view of the aforesaid discussion, the present issue is partly decided in favour of plaintiff and against defendants. The plaintiff is entitled to decree of arrears of rent at the rate Rs. 560/- per month from 01.06.1997 till 22.11.1999.
Issue No.3: Whether the plaintiff is entitled to damages at the rate of 50,000/- per month or at what rate/for what period? OPP
21. The onus to prove the present issue is on the plaintiff. As discussed earlier, the tenancy of the defendants stood terminated from the midnight of 22.11.1999 by virtue legal notice dated 14.10.1999 (Ex.PW/4). It is the case of plaintiffs that they are entitled to claim CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 17 of 26 damages @Rs.50,000/- per month from the defendants for the period from 23.11.1999 to 10.12.1999 which comes out to Rs.30,000/-. It is further submitted by the plaintiffs that they are entitled to future damages @Rs.60,000/- per month, which is the prevailing market rate till the disposal of the present suit.
22. DW-2 has deposed in his examination in chief that defendants have paid a monthly rent of Rs. 3,080/- to the erstwhile plaintiffs i.e., Sh. Swapan Banerjee and others up to February, 2022. DW-2 has placed on record the copy of letter dated 01.02.2022 (Mark Q) which bears the acknowledgment of the earlier plaintiffs that they have received the rent for the month of February, 2022. Ld. Counsel for the now plaintiff M/s Algoquant Financials LLP has fairly conceded that he is not aware about the arrangement between the earlier plaintiffs and the defendants with respect to payment of rent. Record of the case reveals that defendants were tendering rent at the rate of Rs. 3,080/- per month to plaintiff during the pendency of the present suit. Document Mark Q supports the contention of defendants that rent at the rate of Rs. 3,080/- was tendered till February, 2022 to the earlier plaintiffs. It is an admitted case that no rent was tendered to M/s Algoquant Financials LLP as it is the case of DW-2 that M/s Algoquant Financials LLP has refused to accept rent from the defendants. Thus, it is to be seen that defendants have paid rent at the rate of Rs. 3,080/- per month till February, 2022 to the erstwhile plaintiffs and the aforesaid amount is to be adjusted towards the mesne profits/damages payable to plaintiff.
23. Plaintiffs have not filed any documentary prove in support of their CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 18 of 26 claim for damages @Rs.50,000/- p.m. or @Rs.60,000/- per month. Defendants have put a suggestion to PW-1 in his cross-examination to the effect that there has been certain fall in the rents of the properties on Asaf Ali road area. It is pertinent to mention here that there is no pleading of the defendants to the effect that there has been a fall in the rates of the rent of the properties on Asaf Ali road area. It is well settled that in the absence of pleadings, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. In light of this settled law, the deposition of PW-1 in view of the suggestion put to the witness with respect of the decrease of rent of the properties on Asaf Ali road area cannot be considered.
24. As stated earlier, plaintiff has not led any independent evidence qua the quantum of damages claimed. In Bakshi Sachdev (D) by L.Rs. v. Concord (I), 1993 RLR 563, it was held that the damages and mesne profits can be granted at a higher rate than the agreed rate of rent after the expiry of the tenancy and in that case after taking judicial notice of the fact of phenomenal rise in rents in Delhi and particularly in posh colonies like where the property in suit was located, higher rate of damages/mesne profits was awarded by the court. Reference may also be made to the judgment the Hon' ble High Court of Delhi in P. S. Bedi v. Project & Equipment Corpn. of India Ltd. reported as AIR 1994 Delhi 255 in this respect.
CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 19 of 2625. In the judgment titled as Rattan Arya v. State of T.N. reported as AIR 1986 SC 1444 also it was held that the court can take judicial notice of the enormous multifold increase of rents throughout the country, particularly in urban areas.
26. In case of M.C. Agarwal HUF vs. M/s Sahara India & Ors. 2011 (183) DLT 105, it was noted by Hon'ble High Court that "even if a landlord has failed to lead evidence with respect to prevalent rents, yet in such circumstances, this Court can take judicial notice of increase in rent of metropolitan cities, more so in commercial areas. With respect to the premises which were situated in Connaught Place and Kasturba Gandhi Marg, it was held that 15% increase of rent every year should be payable by a tenant to landlord."
27. The aforesaid authorities can be pressed into service to determine the damages/mesne profits payable to the plaintiff from 23.11.1999 for the unauthorized use and occupation of the suit premises by the defendants. In the instant case, the tenancy is commercial and the suit property is located in a prominent locality of Delhi. Therefore, interest of justice would be served if plaintiff is granted mesne profits @ 15% compounded increase every year from the rate of rent which was due and payable on 22.11.1999 i.e., Rs.43,680/- p.a. (Rs.3,640/-p.m.), till the time the possession of the suit premises is handed over by the defendants to the plaintiff. For the purpose of clarity, it is stated that plaintiff shall be entitled to damages @Rs.50,232/- p.a. from 23.11.1999 till 22.11.2000; to Rs.57,766.8 p.a. from 23.11.2000 till 22.11.2001 and so on, till the time the possession of the suit premises is handed over by CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 20 of 26 the defendants to the plaintiff. Plaintiff is entitled to the aforesaid amount after adjustment of Rs. 3,080/- per month already paid till February, 2022.
28. In light of the aforesaid discussion, the present issue is decided in favour of the plaintiff and against the defendants.
Issue No.5:- Whether the present suit is bad for non-joinder of necessary party i.e., M/s Hisar Metal Industries Ltd? OPD
29. Defendants in their written statement have taken a specific objection that the present suit is bad for non-joinder of necessary party as plaintiff has not made M/s Hisar Metal Industries Ltd., which is in possession of the suit premises, a party to the present suit. At this stage it is pertinent to examine clause 7 of the Lease Deed (Ex.PW1/6) executed between the parties. Clause 7 of Lease Deed Ex.PW1/6 reads as follows:
"7. That the Lessee shall not sub-let, assign or otherwise part with the possession of the premises without the previous written consent of the Lessor. However, the Lessee will have the right to use the premises by the following firms and companies and to a limit of four more Registered Limited Companies in which Mr. Mahabir Prasad Jindal or Mr. Ravinder Jindal is a director and directly connected with such firms.
(i) M/s. Ravindra Tubes Limited.
(ii) M/s. Niraj Tubes Pvt. Limited.
(iii) To be incorporated.
(iv) To be incorporated.
(v) To be incorporated.
CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 21 of 26
(vi) To be incorporated...."
Thus, it is to be seen from Clause 7 of the Lease Deed executed between the parties that defendants No.1 and 2 were entitled to use the suit premises for four more Registered Limited Companies, other than M/s. Ravindra Tubes Limited and M/s. Niraj Tubes Pvt. Limited, in which either defendant No.1 or defendant No.2 was a director or were directly connected with such firms. It is the case of defendants that M/s Hisar Metal Industries Ltd. is in possession of the suit premises virtue of Clause 7 of the Lease Deed. Plaintiff No.3/PW-1 has admitted in his cross-examination that the suit premises are in possession of M/s. Hisar Metal Industries Ltd. and Ravindra Tube Ltd.
30. Ld. Counsel for defendants has argued that in view of the admission of PW-1 in his cross-examination that M/s Hisar Metal Industries Ltd. is in possession of the suit property, the present suit is clearly bad for non-joinder of M/s Hisar Metal Industries Ltd. Per contra, Ld. Counsel for plaintiff has placed reliance of the judgments in Rup Chand Gupta vs. Raghuvanshi Private Ltd. and Ors. MANU/SC/0296/1964 and S. Rajdev Singh and Ors. and Punchip Associates Pvt. Ltd. and Ors. MANU/DE/8627/2007 to argue that in cases like the present one, it is not necessary to implead the sub-lessee as a party to the suit. Ld. Counsel for plaintiff has argued that where a landlord institutes a suit against the lessee for possession of the immovable property on the basis of a valid notice to quit served on the lessee, the sub-lessee is not a necessary or proper party to the suit and a decree so passed in such a suit against the lessee will also bind the sub- lessee.
CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 22 of 2631. In Rup Chand Gupta (supra) it has been held as follows:
"Taking the last action first, viz., Raghuvanshi's omission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases possession of the laid on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object, of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub- lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the subleases The law allows this and so the omission cannot be said to be an improper act."
32. The relevant extracts of the decision in S. Rajdev Singh and Ors. and Punchip Associates Pvt. Ltd. and Ors. (supra) are as follows:
"25. Learned Counsel for the plaintiffs has referred to the judgment of the Apex Court in Importers & Manufacturers Ltd. v. Pheroze Framroze Taraporewala where in paragraph 4, it has been observed that under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. Thus, non-joinder of such a person does not render the decree any the less binding on him and such a person was held not to be a necessary party to the ejectment suit against the tenant. Simultaneously it CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 23 of 26 was recognised that such a person would nevertheless be a proper party to the suit in order that the question where the lease has been properly determined and the landlord/plaintiff is entitled to recover possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord and the tenant under or through whom he claims and to seek protection under the TP Act, if he is entitled to any.
26. A reference has also been made to the judgment in Rupchand Gupta v. Raghuvanshi (P) Ltd. to the effect that the law does not require the sub-lessee to be made a party where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee. The decree in the suit would bind the sub-lessee and even though it may sound harsh on the sub-lessee, this is the position well understood by him when he took the sub-lease.
27. On consideration of the aforesaid judgments and the submissions of the parties to show that the notice of termination is required only to be given to the tenant, the sub-tenants are at best, proper parties to the proceedings. In the present case, the sub-tenants have been imp leaded as defendants. Even in the eviction proceedings filed before the Rent Controller, the sub-tenants were imp leaded as parties."
33. It is clear from the aforesaid authorities relied upon by Ld. Counsel for the plaintiff that it is not necessary to implead the sub-lessee M/s Hisar Metal Industries Ltd. as a party to the present suit specially CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 24 of 26 when the interest of the sub-lessee is duly secured by its directors i.e., defendants No.1 and 2. In light of the aforesaid discussion, the present issue is decided in favour of plaintiff against the defendants.
Relief:-
34. In light of foregoing discussion and findings on the aforesaid issues, the present suit is decreed in favour of plaintiff and against the defendants in the following terms:-
(a) A decree of possession in respect of the left side half of the entire first floor of the premises known as "Banerjee Buildings" No.B-4/21 and 22, Asaf Ali Road, New Delhi situated at main Asaf Ali Road, New Delhi comprising of two 'L' shaped halls (one at the front and one at the rear side of the building), two WCs and half courtyard and half front verandah with common use of two front and rear stairs measuring about 2655 sq. ft. as shown in Red colour in the site plan Ex.PW1/1 is passed in favour of plaintiff and against the defendants.
(b) A decree of recovery of arrears of rent at the rate Rs. 560/- per month from 01.06.1997 till 22.11.1999 is passed in favour of plaintiff and against the defendants.
(c) A decree of recovery of mesne profits/damages for unauthorized use and possession of the suit premises is passed in favour of the plaintiff and against the defendants @ 15% compounded increase every year from the rate of rent which was due and payable on 22.11.1999 i.e., Rs.43,680/- p.a. (Rs.3,640/-p.m.) from 23.11.1999 till the time the possession of the suit premises is handed over by the defendants to the plaintiff. Plaintiff is entitled to the aforesaid amount after adjustment of Rs. 3,080/- per month already paid by the defendants till February, CS No.593707/2016 M/s Algoquant Financials LLP vs. Mahabir Prasad Jindal Page 25 of 26 2022.
Costs of the suit are awarded in favour of plaintiff to be paid by the defendants.
Decree sheet be drawn up accordingly.
File be consigned to the record room after due compliance.
Announced in the open Court (NEHA GARG)
on 20.04.2023 Civil Judge-01/Central,
Tis Hazari Courts/Delhi
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