Delhi District Court
Smt. Kamlesh Gupta vs Sh. Vakeel Ahmad on 28 October, 2015
IN THE COURT OF CIVIL JUDGE, SOUTH EAST
DISTRICT, SAKET COURTS COMPLEX, NEW DELHI
Presiding Officer: Dinesh Kumar, DJS
Suit No. 29/2014
Unique ID no. 02406C0013002014
In the matter of :
Smt. Kamlesh Gupta,
W/o Sh. Ramesh Chander Gupta
R/o A1, A Block, Vasant Kunj Enclave
New Delhi110070 .........Plaintiff.
vs
Sh. Vakeel Ahmad
S/o Sh. Wahid Ahlamd
TA214, Tughlakabad Extension
near Pocket3
New Delhi110019 ......Defendant.
Date of institution of Suit : 20.01.2014
Date on which order was reserved : 28.09.2015
Date of pronouncement of the order : 28.10.2015
Present: Sh. Sharad Malhotra, Advocate for plaintiff.
Sh. G. P. Singh, Advocate for defendant.
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of possession, arrears of rent and mesne profits. The plaintiff has stated her case as under:
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1.1. The plaintiff is the lawful owner of the property bearing no. TA - 214, Tughalkabad Extension near Pocket 3, New Delhi (hereinafter called 'the suit property). The plaintiff had let out ground floor of the said property comprising two shops with boundary wall for a period of 11 months at monthly rent of Rs.
4000/ exclusive of water and electricity charges w.e.f. 01.07.2002 to the defendant. The lease agreement was also executed on 17.06.2002.
1.2. As per the agreement, the rent was agreed to be paid in advance on or before 7th day of each calender month. The defendant had undertaken to vacate the premises immediately after expiry of the term of lease deed otherwise he would be liable for penalty.
1.3. During the tenure of tenancy, the defendant developed cordial and friendly relationship with the husband of the plaintiff. He did not vacate the tenanted premises on expiry of the term of the lease deed. He requested the plaintiff to continue in possession of property. The rent was increased from time to time. The rent was lastly increased to Rs.6000/ w.e.f. 01.04.2006. 1.4. In December 2011, the defendant had shown his interest in buying the property. However, after making some payment, he expressed his inability to continue with the deal. He CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 2 of 21 had given two cheques bearing no.912780 dated 03.02.2013 and 912779 dated 13.03.2013 for Rs.50,000/ each. However, they got dishonoured on presentation. Considering the relationship between the parties, the plaintiff did not file any criminal complaint against defendant. It was mutually agreed between the parties that the deal in relation to the property would stand cancelled and the amount paid by the defendant to the plaintiff towards the proposed sale transaction would stand forfeited. It was also agreed that the defendant would pay to the plaintiff the entire arrears of rent @ Rs.6000/ per month w.e.f. 01.01.2012. However, the defendant failed to make the payment.
1.5. The plaintiff sent a legal notice dated 01.10.2013 terminating the tenancy of the defendant w.e.f. 01.10.2013 and called upon the defendant to hand over vacant physical possession of the property and to pay the arrears of rent. However, the defendant has failed to vacate the suit property. Hence, the present suit has been filed with the following prayer:
(A) pass a decree for recovery possession in favour of the plaintiff and against the defendant in respect of the suit property / shops forming part of the property bearing no.TA214, Tuglakabad Extension, Near Pocket3, New Delhi110019 as shown in red colour in the site plan annexed with the plaint;
CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 3 of 21 (B) pass a decree in the sum of Rs.1,46,790/ in favour of the plaintiff and against the defendants towards arrears of rent w.e.f. 01.01.2012 to 30.09.2013 along with interest charges payable @ 18% P.A. thereon from the due date upto the date of payment;
(C) pass a decree on a sum of Rs.60,000/ in favour of the plaintif and against the defendants towards damages / use and occupation charges / mesne profits w.e.f. 01.10.2013 upto the date of the defendant vacating and handing over peaceful possession of the suit property to the plaintiff;
(D) grant interest pendente lite and future interest @ 18% per annum till the date of realization;
(E) pass a decree of mandatory injunction in favour of the plaintiff and against the plaintiff, thereby directing the defendant to remove all unauthorized constructions, additions / alternations in the suit property and was told the suit premises in its original condition;
(F) pass a decree of permanent injunction in favour of the plaintiff and against the defendant thereby permanently restraining the defendant, his agent, associates, etc. from creating any third party right in the suit property or parting with possession thereof; (G) award costs of the present suit against the defendant and in favour of the plaintiff."
2. The defendant has appeared. He has filed the WS. He has contested the suit on the following grounds. 2.1. The suit is not maintainable. The plaintiff has no right, CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 4 of 21 title or interest in the suit property. She is not in possession of the suit property. She does not have any locus standi to file the present suit.
2.2. The defendant is not a tenant in the suit property. The plaintiff had agreed to sell the property measuring 140 sq. yards to the defendant for a consideration of Rs.70,00,000/ out of which the defendant has already paid Rs.55,00,000/ and he is ready to pay the balance amount to the plaintiff at the time of execution of the title documents in favour of the defendant. Thus, the defendant has already purchased the property in question from the plaintiff through bayana receipt.
2.3. It has been admitted that suit property was taken on rent from plaintiff in July 2002 on a monthly rent of Rs.4000/ which was increased to Rs.6000/ per month in April 2006. The plaintiff has however made false allegations against the defendant. The defendant has never misused the relationship. It is the plaintiff who has become dishonest.
2.4. In December 2011, the plaintiff had expressed her willingness to dispose of the property. The defendant had agreed to purchase the same. He agreed to purchase the same for a total sum of Rs.70,00,000/. The plaintiff admitted the receipt of Rs. 45,00,000/. Amount of Rs.6,00,000/ was paid to the plaintiff CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 5 of 21 without receipt in March 2012. The defendant never expressed his inability to discontinue the deal. The defendant is always ready and willing to pay the balance amount. The defendant has already paid about 80% of the total amount. The defendant came into possession of the property by virtue of sale transaction (agreement to sell/bayana receipt). Therefore, there is no question of continuation of tenancy between the parties and therefore there is no issue of arrears of rent. Hence, it is prayed that the suit may be dismissed.
3. Plaintiff filed replication in which she has denied the contentions raised by the defendant and she has reiterated the facts stated in the plaint.
4. On the basis of pleadings, following issues have been settled vide order dated 24.04.2014.
1. Whether the plaintiff is entitled to a decree of recovery of possession by way of eviction of defendant as prayed for ? OPP
2. Whether the plaintiff is entitled to a decree of recovery of Rs.1,46,790/ as prayed for ? OPP
3. Whether the plaintiff is entitled to mesne profits / damages @ Rs.60,000/ as prayed for ? OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP
5. Whether the plaintiff is entitled to a decree of CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 6 of 21 mandatory of injunction as prayed for ? OPP
6. Whether the plaintiff has no locus standi to file the present suit ? OPD
7. Whether the present suit is not maintainable in its present from ? OPD
8. Relief.
5. The matter was fixed for evidence. The plaintiff has examined herself as PW1 to prove her case. She has reiterated the facts stated in the plaint. PW1 has relied upon the following documents:
a) the site plan is Ex.PW1/1;
b) original lease agreement dated 17.06.2002 is Ex.P1;
c) the cheque dated 03.02.2013 and return memo dated 27.02.2013 are Ex.P2 and Ex.P3;
d) the cheque dated 13.03.2013 and return memo dated 06.05.2013 are Ex.P4 and Ex.P5;
e) legal notice is Ex.PW1/2;
f) postal receipts are Ex.PW1/3 and Ex.PW1/4; and
g) paper containing calculation details is Ex.PW1/5.
6. The plaintiff has examined her husband Sh. Ramesh Chander Gupta as PW2 and her son Sh. Manish Gupta as PW3. The witnesses were cross examined and PE was closed. The plaintiff did not examine any other witness. The matter was fixed CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 7 of 21 for defence evidence.
7. The defendant has examined himself as DW1 to prove his defence. Defendant has reiterated the facts stated in WS. The defendant has relied upon bayana receipt which is Ex.D1 (mentioned as Ex.DW1/A in his affidavit), receipt dated 20.02.2012 is already exhibited as Ex.PW1/DX1 (mentioned as Ex.DW1/B in his affidavit). The defendant has also examined Sh. Shakeel Ahmed as DW2. DW2 has also stated the similar facts. The witnesses were cross examined. After completion of evidence, the matter was fixed for final arguments.
8. I have heard the rival submissions of Ld. counsels for the parties and carefully perused the material available on record. My issue wise findings are as under:
9. Issue no.6: This issue reads as under:
"Whether the plaintiff has no locus standi to file the present suit ? OPD"
10. This issue is taken first as it is related to the maintainability of the suit. The onus to prove this issue was on the defendant. However, no arguments have been made by the defendant on this issue. After going through the entire material on record, I am the considered opinion that the plaintiff has locus standi to file the present suit. Plaintiff is admittedly owner of the CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 8 of 21 suit property. The defendant has claimed that he had purchased the suit property. However, he has failed to file any sale deed on Court record. He has admitted his tenancy. Therefore, I am of the considered opinion that the plaintiff has proved that she has locus standi to file the present suit. The issue is therefore decided against the defendant and in favour of the plaintiff.
11. Issue no.7: This issue reads as under:
"Whether the present suit is not maintainable in its present form ? OPD"
12. The onus to prove this issue was on the defendant. However, no arguments have been made on this issue. After going through the material on record, I am of the considered opinion that there is no technical defect in maintainability of the suit. The suit is maintainable in its present form. The issue is therefore decided against the defendant and in favour of the plaintiff.
13. Issue no.1: This issue reads as under:
"Whether the plaintiff is entitled to a decree of recovery of possession by way of eviction of defendant as prayed for ? OPP
14. The onus to prove this issue was on the plaintiff. The plaintiff has examined herself as PW1 to prove this issue. PW1 in her evidence has stated that she is owner of the suit property. She CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 9 of 21 had given the suit property on rent to the defendant. During the tenancy, the defendant had shown his willingness to purchase the suit property. The defendant made some payment as part consideration. However, later on, he failed to pay the balance amount. The deal was therefore cancelled. The amount was forfeited by the plaintiff as agreed between the parties.
15. The witness has been cross examined. Nothing contradictory has come in the evidence of the plaintiff. Even in the cross examination of other two PWs nothing contradictory has come.
16. The defendant in his evidence has admitted that the plaintiff was the owner of the property at the time when he had taken the property on rent. The contention of the defendant is that he had entered into agreement to purchase the suit property from the plaintiff for a total sum of Rs.70 lacs. He made payment of substantial amount to plaintiff. His contention is also that he had come into possession of the suit property in part performance of agreement to sell and purchase. Now he has become the owner of the suit property and he is no more a tenant.
17. I have considered the submissions. In the present case, it is an admitted fact that plaintiff was the owner of suit property when defendant had come in possession of it as a tenant. He was CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 10 of 21 admittedly inducted as a tenant by the plaintiff. It is also admitted fact that during the tenancy the parties had entered into an agreement whereby the defendant had agreed to purchase the suit property from the plaintiff. It is also admitted fact that sale has not been completed as yet and no sale deed has been executed in relation to suit property. Therefore, it is to be decided as to what is the effect of the abovesaid agreement to sell and purchase and whether the possession of the defendant is protected by law even if no sale deed has been executed as yet.
18. It is settled position of law that sale of immovable property cannot be effected except by way of a duly registered sale deed. An agreement to sell and purchase does not transfer any right, title or interest in favour of prospective buyer. In the present case also, there is no registered sale deed executed by plaintiff in faovur of the defendant. Therefore, it stands proved that the plaintiff has not transferred the suit property in favour of the defendant as yet and therefore the defendant has not become owner of suit property.
19. The law provides that a prospective purchaser can come in possession of a property in part performance of an agreement to sell. In such cases, the law protects the possession of the prospective purchaser. Section 53A of the Transfer of Property CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 11 of 21 Act 1882 provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, in such circumstances the transferee has a right to protect his possession subject to the condition mentioned in the Section. It has been settled through judicial pronouncement that the existence of right to claim protection under Section 53A would not be available if the transferee just kept quite and remained passive without taking effective steps. Further, he must also perform his part of the contract and convey his willingness. I get strength from the judgment of the Hon'ble Supreme Court of India in A. Lewis vs M. T. Ramamurthy AIR 2008 SC 493 in which the Hon'ble Supreme Court has affirmed the abovesaid proposition. Further, Hon'ble High Court of Bombay in Kamalabai Laxman Pathak vs Onkar Parsharam Patil AIR 1995 Bom. 113 has observed that a CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 12 of 21 necessary ingredient of Section 53A is that the terms of the written contract must be ascertainable with "reasonable certainty" i.e. the Court should be in a position to judge the exact nature of the transaction i.e. the subject matter of the document.
20. In the present case, there is no duly executed agreement to sell in writing. Document Ex.D1 is alleged to be the agreement to sell and purchase. However, it does not contain any particulars of the property. It does not mention who is the seller and who is purchaser. It has not been executed as per law. The document is unable to fulfill the requirements of law necessary for execution of an agreement in which fact of payment of amount is also mentioned and which is to be used as a receipt of payment.
21. After amendment in the Registration Act, in the year 2001, Section 17 (1A) was inserted. As per the Section a document containing contracts to transfer for consideration, any immovable property for the purpose of Section 53 A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Amendment Act, 2001. If such documents are not registered on or after such commencement, then they shall have no effect for the purpose of Section 53 A. In the present case also, the alleged agreement is after the year 2001. Therefore, any such oral agreement to sell, CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 13 of 21 even if presumed to exist, does not provide any protection to the defendant herein. The Hon'ble Supreme Court of India in Mool Chand Bakhru & Anr. vs Rohan & Ors. AIR 2002 SC 812 has held that a person claiming to be a proposed vendee on the basis of an oral agreement cannot protect his possession. It was held that written agreement was sine qua non for the applicability of the equitable doctrine of part performance enshrined in Section 53 A of the Transfer of Property Act.
22. Even if, for the sake of argument, the document Ex.D1 is considered as a written agreement, it cannot be looked into by the Court to ascertain that the defendant is in possession of the suit property under part performance of the contract. The said document is not a registered agreement and therefore it cannot be considered by the Court in evidence in relation to possession in part performance as stated under Section 16A of the Registration Act. Hence, I am of the considered opinion that the defendant has failed to prove that he is in possession of the suit property in part performance of alleged agreement to sell and purchase. Thus, the plaintiff has proved that the defendant is in possession of the suit property as a tenant of the plaintiff.
23. The defendant has also relied upon the document CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 14 of 21 Ex.PW1/DX1. It is contended that this document is a receipt of Rs. 40 lacs which were received by husband of the plaintiff from the defendant. Perusal of the record would show that the document Ex.PW1/DX1 has not been proved as per law. The original of the document has not been brought on record. All the witnesses of the plaintiff have denied execution of any such document. Even otherwise this document does not bear signature of the plaintiff. Thus, it cannot be said that the plaintiff had received amount of Rs.40 lacs from the defendant. Further, document Ex.PW1/DX1 is inadmissible in evidence. The document is stated to be a receipt of money. However, it does not bear any revenue stamp. Therefore, the document cannot be read in evidence. Further, there is nothing on record to show that the persons whose signatures are shown on this document were authorized by the plaintiff to receive the amount on her behalf. There is no other documentary evidence on Court record to prove that the defendant had paid the amount of Rs.40 lacs to the plaintiff as contended in the WS and evidence. Self serving statement is not sufficient to prove this fact.
24. The plaintiff has admitted receiving of Rs.5 lacs from the defendant by way of document Ex.D1. However, this document in no way is sufficient to transfer any right, title or interests in favour of the defendant in the suit property. The CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 15 of 21 defendant has merely proved that the plaintiff had received Rs.5 lacs from him. The fact remains that the defendant had come in possession of the suit property as a tenant.
25. The rent agreement between the parties is Ex.P1. It is an admitted document. Thus, the relationship of landlord and tenant between plaintiff and defendant is admitted. It has also been admitted that the rent of the suit property is above Rs.3500/ per month. Therefore, suit property is not covered under the Delhi Rent Control Act. The defendant has not disputed the receiving of legal notice. Even otherwise, service of summons in the present suit can be considered as service of notice. The Hon'ble High Court of Delhi in Jeevan Diesels & Electricals Ltd. Vs Jasbir Singh Chadha (HUF) & Anr. 182 (2011) DLT 402 has held that where receiving of the notice is in dispute the summons of the suit can be considered as service of the notice and the tenancy would terminate on filing of the subject suit against the tenant / defendant.
26. In the light of discussion hereinabove, I am of the considered opinion that all the requirements of law for the purpose of eviction of tenant from the property are fulfilled in the present case. Therefore, I am of the considered opinion that the plaintiff is CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 16 of 21 entitled to a decree of recovery of possession of the suit property by way of eviction of the defendant from the suit property. The issue no.1 is therefore decided in favour of the plaintiff and against the defendant.
27. Issue no.2: This issue reads as under:
"Whether the plaintiff is entitled to a decree of recovery of Rs.1,46,790/ as prayed for ? OPP"
28. The onus to prove this issue was on the plaintiff. The PW1 in her evidence has stated that the defendant has not paid the rent w.e.f. 01.01.2012. On the basis of this averment she has claimed recovery of Rs.1,46,790/ from the defendant as arrears of rent w.e.f. 01.01.2012 upto 30.09.2013.
29. The defendant has admitted that he did not pay this amount to the plaintiff. While replying to para 14 of the plaint, the defendant in his WS has stated that the lease had terminated on 11.12.2011 when the plaintiff had received an amount of Rs.5 lacs as earnest money from the defendant. Therefore, there are no arrears of rent against the defendant.
30. These submissions of defendant are sufficient to prove that the defendant has admitted that he did not pay any rent to the plaintiff w.e.f. 01.01.2012. As held hereinabove, the defendant has not acquired any right, title or interest in the suit property. His CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 17 of 21 possession has always been that of a tenant. He has failed to prove that he is in possession of suit property in part performance. The defendant is liable to pay rent for the aforesaid period. He has not claimed any set off in the present suit. Therefore, the plaintiff is entitled to recovery of arrears of rent w.e.f. 01.01.2012 till 30.09.2013. The issue is therefore decided in favour of the plaintiff and against the defendant.
31. Issue no.3: This issue reads as under:
"Whether the plaintiff is entitled to mesne profits / damages @ Rs.60,000/ as prayed for ? OPP"
32. The onus to prove this issue was on the plaintiff. The plaintiff has claimed mesne profits of Rs.60,000/. PW1 in her evidence has stated that the defendant is liable to pay use and occupation charges @ Rs.500/ per day for the first month and thereafter Rs.1000/ per day for subsequent month as per lease agreement.
33. Perusal of the lease agreement Ex.P1 would show that it was executed between the parties for a period of 11 months on 17.06.2002. Thus, it came to an end after expiry of 11 months. There is no new rent agreement to prove that the parties had agreed to the abovesaid condition again. There is nothing on record to show that the defendant had agreed to pay the said CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 18 of 21 amount even after expiry of the said agreement. The tenancy in the present case is month to month. The plaintiff has not led any evidence to show that the property can fetch such a heavy amount as rent per month. However, in his cross examination as DW1 the defendant has admitted that the suit property could fetch around Rs.15000/ per month in the year 2013. In these circumstances, I am of the considered opinion that the plaintiff has proved that she is entitled to mesne profits @ Rs.15,000/. Therefore, I hold that the plaintiff is entitled to mesne profits @ Rs.15,000/ per month. The issue is decided accordingly in favour of the plaintiff and against the defendant.
34. Issue no.4: This issue reads as under:
"Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP"
35. The onus to prove this issue was on the plaintiff. The plaintiff has claimed that the defendant be restrained from creating any third party interest in the suit property or parting with possession thereof. As discussed hereinabove, the plaintiff has proved that she is owner of the suit property and the defendant is merely a tenant and defendant has no right, title or interest in the suit property. He has no right to create any third party interest in the suit property or parting with possession. The plaintiff is CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 19 of 21 therefore entitled to the relief. The issue is therefore decided in favour of the plaintiff and against the defendant.
36. Issue no.5: This issue reads as under:
"Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for ? OPP"
37. The onus to prove this issue was on the plaintiff. The plaintiff has failed to lead any evidence to show as to what is the construction done by the defendant in the suit property. The allegations are vague. Specific particulars have not been provided. In such circumstances, I am of the considered opinion that the relief of mandatory injunction as prayed for in the prayer cannot be granted. The issue is therefore decided against the plaintiff.
38. Issue no.8: Relief:
In the light of discussion herein above, the suit of plaintiff is partly decreed. The plaintiff is entitled to a decree of possession by way of eviction of the defendant from the suit property bearing no.TA214, Tuglakabad Extension, Near pocket3, New Delhi as shown in red colour in site plan. The plaintiff is also entitled to a decree of recovery of arrears of rent of Rs.1,46,790/. She is also entitled to recovery of mesne profits @ Rs.15,000/ per month w.e.f. 01.10.2013 till delivery of the possession to the plaintiff / decree holder, or the relinquishment of CS No.29/2014 Smt. Kamlesh Gupta vs Vakeel Ahmad Page 20 of 21 possession by the defendant with notice to the plaintiff / decree holder, or till the expiration of three years from the date of decree. The plaintiff is entitled to interest @ 6% per annum from the date the amount became due till its realization. The plaintiff is also entitled to the cost of the suit. The relief of mandatory injunction is, however declined. The defendant is hereby restrained from creating third party interest in the suit property.
39. The plaintiff is directed to deposit the deficient Court Fee, if any, within 20 days of this order. The Reader of this Court shall submit report within two days whether the Court Fee is sufficient Court Fee has already been paid otherwise, decree sheet be prepared after receiving the entire Court Fee.
Pronounced in the open Court (Dinesh Kumar) on this 28 day of October, 2015. Civil Judge, South East, th Saket Court, New Delhi.
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