Delhi District Court
Sh. Sanjeev Kumar vs M/S. Amalgamated Bean Coffee on 31 March, 2014
1
IN THE COURT OF SH. LAL SINGH,ADJ03 (SOUTH WEST),
DWARKA COURT COMPLEX,NEW DELHI
SUIT NO. 88/11
IN THE MATTER OF :
SH. SANJEEV KUMAR
S/o Sh Jagdev Sharma
R/o VPO Samalka
New Delhi .................Plaintiff
VERSUS
M/S. AMALGAMATED BEAN COFFEE
Trading Company Limited
Property No. 13, Satya Niketan Building,
Plot No. 13, J J Colony,
Moti Bagh, Satya Niketan,
New Delhi110021 ..............Defendant
Date of Institution: 14/03/2011
Date on which judgment was reserved:11/03/2014
Date on which judgment was passed : 31/03/2014
JUDGMENT
1 The present suit has been filed by the plaintiff against the Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 2 defendant for recovery of possession, arrears of rent and damages/mense profit.
2 The brief relevant facts of the case as stated in the plaint are that the plaintiff is owner of the suit property bearing No. 13, in the building known as Satya Niketan, situated in plot no.13, J.J. Colony, Moti Bagh (Satya Niketan) New Delhi110021, wherein a hall having carpet area of 650 square feet has been built up in the said suit property. The suit property stated to have purchased by the plaintiff from previous owner Sh. Basant Lal and said previous owner of the suit property has executed an agreement to sell, GPA, WILL etc all dated 13/1/2010 in favour of the plaintiff and after execution of the said documents, all rights, title and interest of the suit property has been devolved upon the plaintiff and plaintiff became absolute owner of the suit property. The previous owner of the suit property let out the same to the defendant vide unregistered lease deed dt. 11/11/2005, for a monthly rent of Rs.38,000/ with condition that the said rent shall be enhanced by 15 % after every three years at the Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 3 time of letting out the suit property and the defendant also deposited a sum of Rs.1,20,000/ as refundable interest free security deposits with the previous owner and same shall be payable to the defendant on termination of his tenancy subject to the condition of deducting occupation charges and other dues if any, due upon the defendant at the time of termination of his tenancy.
3 It is averred by the plaintiff that the said rent was enhanced time to time and last rent of the defendant qua the suit property was Rs. 43,700/ per month and defendant paid the said rent through cheque after deducting the TDS. After purchasing the suit property by plaintiff, an attornment deed/agreement dt. 16/3/2010 was executed between the plaintiff and defendant whereby the defendant admitted/acknowledged the plaintiff as owner/landlord of the suit property and agreed to pay rent of the suit property to the plaintiff and in the said attornment deed the previous owner of the suit property also signed as the confirming party. Vide the said attornment deed, the amount of Rs.1,20,000/ paid by the Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 4 defendant as refundable security to the previous owner has been duly transferred to the plaintiff . As per the plaintiff from the month of January,2010, defendant had paid rent to the plaintiff only three times i.e. for only three months. Except unregistered lease deed dt. 11/11/2005 and attornment deed/agreement dt. 16/3/2010, no other document/lease deed was executed in favour of the defendant either by plaintiff or by the previous owner. As per plaintiff the lease deed dt. 11/11/2005 was unregistered lease deed and same is for the period of more than one year, hence, same can not be looked in evidence except for collateral purposes i.e. purpose of tenancy etc. and by virtue of the said lease deed the tenancy of the defendant qua the suit property was only month to month tenancy. Further, after execution of above said documents in favour of the plaintiff, the tenancy of the defendant qua the suit property had been attorned in favour of the plaintiff and plaintiff became the owner of the suit property and defendant became the tenant of the plaintiff qua the suit property. It is averred that the plaintiff under the provision of section 106 Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 5 of the T.P. Act , vide legal notice dt. 16/09/2010, terminated the tenancy of the defendant in respect of the suit property. Defendant despite of service of the said notice, failed to vacate the suit property and also failed to reply to the said notice. As per plaintiff after adjusting amount of Rs.1,20,000/ which was paid by the defendant as interest free the refundable security, defendant is liable to pay an amount of Rs.1,42,200/ to the plaintiff towards arrear of rents. Plaintiff also averred that the defendant is liable to pay damages for unauthorized use and occupation @ Rs.1,50,000/ per month w.e.f. 03/10/2009 to 09/03/2011 which comes to Rs.8 lacs. 4 Defendant has not filed the written statement and vide order dt. 22/11/2012, Ld. Predecessor court struck off the defense of the defendant and following issues were framed:
i) Whether the plaintiff is entitled for decree for possession, as claimed?......OPP
ii) Whether the plaintiff is entitled to recovery of arrears of rent amounting to Rs.1,42,200/, as claimed?..........OPP
iii) Whether plaintiff is also entitled to mense profit, if so, to what Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 6 extent?......OPP.
iv) Relief
5 In order to prove its case, plaintiff examined himself as PW1 and filed evidence by way of affidavit vide Ex. PW1. Plaintiff also relied upon the site plan Ex PW1/1, Agreement to Sell Ex PW1/2, Copy of receipt Ex PW1/3, copy of possession letter Ex PW1/4, Copy of GPA Ex PW1/5, Copy of WILL Ex PW1/6, Attornment Agreement dated 16/03/2010 Ex PW1/7, Copy of Bank passbook Ex PW1/8, legal notice dt. 16/9/2010 Ex PW1/9, postal receipts Ex PW1/10 and Ex PW1/11, Application dated 26/02/2011 Ex PW1/12, replies by the Post Master , Vasant Kunj Ex PW1/13 and Ex PW1/14, copy of lease deed dated 11/11/2005 marked as Mark A and copy of rent agreement dated 03/02/2010 marked as Mark B and copy of lease agreement dated 15/12/2006 is marked as Mark C. However, the defendant has not cross examined the PW1 despite of opportunity. Defendant has also not led the Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 7 defense evidence.
6 As none appeared on behalf of the defendant for final arguments, hence, final arguments heard on behalf of the plaintiff. 7 I have gone through the file and carefully perused the record and also scrutinized the evidence on record.
8 My issue wise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled for decree for possession, as claimed?......OPP The onus to prove issue No.1 is upon the plaintiff. Plaintiff has relied upon the document i.e. site plan Ex PW1/1, Agreement to Sell Ex PW1/2, Copy of receipt Ex PW1/3, copy of possession letter Ex PW1/4, Copy of GPA Ex PW1/5, Copy of WILL Ex PW1/6, Attornment Agreement dated 16/03/2010 Ex PW1/7, Copy of Bank passbook Ex PW1/8, legal notice dt. 16/9/2010 Ex PW1/9, postal receipts Ex PW1/10 and Ex PW1/11, Application dated 26/02/2011 Ex PW1/12, replies by the Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 8 Post Master , Vasant Kunj Ex PW1/13 and Ex PW1/14, copy of lease deed dated 11/11/2005 marked as Mark A and copy of rent agreement dated 03/02/2010 marked as Mark B and copy of lease agreement dated 15/12/2006 marked as Mark C. Defendant has failed to cross examine the PW1 despite of opportunity.
9 PW1 in his evidence has proved the document i.e. agreement to sell dt. 13/1/2010 executed between the plaintiff and previous owner namely Sh. Basant Lal. PW1 has also proved the receipt dt. 13/1/2010 vide Ex.PW1/3 whereby a sum of Rs. 42,50,000/ has been shown as received by Sh. Basant Lal from the plaintiff on account of total sale consideration of the build up entire ground floor without roof right of the property bearing No.13, J.J. Colony, Moti Bagh, (Satya Niketan), New Delhi21 measuring 91.66 square yards, in terms of agreement to sell dt. 13/1/2010 in full and final settlement. PW1 has also proved the possession letter dt. 13/1/2010 vide Ex.PW1/4 whereby Sh. Basant Lal has delivered the symbolic possession of the aforesaid suit property to the Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 9 plaintiff. The plaintiff who had appeared as PW1 also proved the GPA executed between Sh. Basant Lal and plaintiff vide Ex.PW1/5 and also proved the WILL Deed Ex.PW1/6. The PW1 also proved in his evidence the attornment agreement Ex.PW1/7 entered into between the plaintiff Sh. Sanjeev Kumar and defendant Amalgamated Bean Coffee Trading company Limited, whereby also the amount of Rs.1,20,000/ paid by the lessee i.e. defendant as refundable security deposit to the lessor therein i.e. the previous owner (confirming party) has been duly transferred to the lessor i.e. the plaintiff. Vide attornment agreement Ex.PW1/7 the parties to the present suit also agreed and acknowledged all the terms and conditions of lease agreement dt. 11/11/2005. In his evidence, PW1 also proved the site plan Ex.PW1/1 and legal notice dt. 16/9/2010 whereby the plaintiff has terminated the lease in respect of the suit property. Therefore, the plaintiff has proved all the above said documents. The defendant failed to controvert any of the aforesaid documents and even not filed WS. Plaintiff has also able to prove the attornment agreement dt. Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 10 16/3/2010 entered into between the plaintiff and defendant in terms of previous lease agreement dt.11/11/2005. The plaintiff has terminated the lease vide legal notice dt. 16/9/2010 vide Ex.PW1/9. Hence, the plaintiff is entitled for recovery of possession of the suit property from the defendant. Therefore, this issue is accordingly decided in favour of the plaintiff against the defendant.
10 ISSUE NO.2
Whether the plaintiff is entitled to recovery of arrears of rent amounting to Rs.1,42,200/, as claimed?..........OPP The onus to prove this issue is also upon the plaintiff. As per plaintiff, from the month of January to September, 2010, the defendant had paid the rent for only three times (only three months rent) at the monthly rent of Rs.43,700/ and rent of six months which comes to Rs. 2,62,200/ has not been paid by the defendant to the plaintiff. The rent of six months arrears which come to Rs.2,62,200/ is stated to be due upon the defendant and the plaintiff claims that he is legally entitled to recover the same from the defendant. Plaintiff further in his evidence by way of Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 11 affidavit Ex.PW1/A stated that after adjusting the amount of Rs.1,20,000/ which was paid by the defendant as interest free refundable security to the previous owner of the suit property and in the attornment deed dt. 16/3/2010 vide Ex. PW1/7 it became the liability of the plaintiff to refund the same to the defendant at the time of termination of the tenancy, therefore, an amount of Rs.1,42,200/ is still due upon the defendant towards the arrears of rent for the aforesaid period of six months from January to September, 2010. The plaintiff has proved that after adjusting the security amount of Rs.1,20,000/, the defendant is liable to pay an amount of Rs.1,42,200/ for arrears of rent for only six months (as three months rent has already been deposited by the defendant) for the period pertaining to January to September, 2010. Hence, this issue also decided in favour of the plaintiff against the defendant. 11 ISSUE NO.3.
Whether plaintiff is also entitled to mense profit, if so, to what extent?......OPP.
Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 12 The onus to prove this issue is also upon the plaintiff. Plaintiff claims that he is entitled to recover mense profit and damages against the defendant @ Rs.1,50,000/ per month w.e.f. 3/10/2010 to 9/3/2011 which comes to Rs.8 lacs and also claims pendentelite and future damages/ mense profit for unauthorized use of the suit property from the date of filing of the suit till delivery of possession of the suit property by the defendant to the plaintiff alongwith interest @ 18% per annum. 12 Though, as per the plaintiff during the year 2010 the monthly rent of the suit property was Rs.43,700/, however, the plaintiff further claims that he is entitled to claim the damages for unauthorized use and occupation of the suit property by the defendant, @ Rs.1,50,000/ per month in view of the location of the area where the suit property is situated. But, the plaintiff has not led any evidence to show that the similarly situated properties in the location, where the suit property is situated, also fetch the monthly rent of Rs.1,50,000/ per month. Merely stating that the plaintiff is entitled for damages/mense profit @ 1,50,000/ Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 13 per month is not sufficient, the plaintiff has to prove the same that in the locality or in the area, where the suit property is situated, the rent of the similar accommodation / premises would fetch the rent of Rs.1,50,000/. 13 However, the plaintiff has failed to lead any such evidence on record. Otherwise also, the damages / mense profit @ Rs.1,50,000/ per month as claimed by the plaintiff seems to be very exorbitant and unreasonable, particularly in view of the fact that in the year 2010, even as per plaintiff, the monthly rent of the suit property was Rs.43,700/. Therefore, keeping in view the above facts and circumstances, I am of the considered opinion that the plaintiff is entitled for mense profit / damages @ Rs.43,700/ per month from 3/10/2010 to 9/3/2011 with interest @ 9 % per annum and thereafter, entitled the damages/mense profit @ Rs. 43,700/ per month from the date of filing of suit till delivery of possession of the suit property to the plaintiff. Accordingly, this issue is also decided in favour of plaintiff and against the defendant. Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 14 14 Relief.
As held above, all the issues are decided in favour of the plaintiff and against the defendant. In view of my specific findings on the aforesaid issues, the suit of the plaintiff is decreed as under:
i) Decree of possession is passed in favour of the plaintiff and against the defendant thereby directing the defendant to hand over the vacant possession of the suit property i.e. property bearing no. 13, in the building known as Satya Niketan, situated in plot no.13, J.J. Colony, Moti Bagh (Satya Niketan) New Delhi110021, as specifically shown in Red colour in site plan Ex.PW1/1, to the plaintiff.
ii) Decree for an amount of Rs.1,42,200/ is passed in favour of the plaintiff and against the defendant, towards the arrears of rent for six months for the period pertaining to January to September, 2010.
iii) Decree of mense profit / damages is passed in favour of the plaintiff and against the defendant, @ Rs.43,700/ per month towards the mense profit / damages from the period 3/10/2010 to 9/3/2011 alongwith interest @ 9 % per annum.
iv) Decree of pendentelite and future damages / mense profit is also Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 15 passed in favour of the plaintiff and against the defendant, @ Rs. 43,700/ per month from the date of filing of the suit till delivery of possession of the suit property to the plaintiff. 15 The suit is decreed in the aforesaid terms in favour of the plaintiff and against the defendant.
16 Cost of the suit is also awarded in favour of the plaintiff against the defendant.
17 Decree sheet to be prepared accordingly.
18 The decree qua pendentelite and future damages / mense profit shall not be prepared till balance court fee on the amount as on the date of decree is paid by the plaintiff. Thereafter, file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 31/03/2014 (LAL SINGH) ADDL. DISTRICT JUDGE03(SW) DWARKA COURTS, NEW DELHI Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 16 SUIT NO. 88/11 Sanjeev Kumar Vs. M/s. Amalgamated Bean Coffee 31/03/2014 Present: None.
Vide separate judgment of even date, suit of the plaintiff is decreed in favour of the plaintiff against the defendant and a decree of possession is passed in favour of the plaintiff and against the defendant thereby directing the defendant to hand over the vacant possession of the suit property i.e. property bearing no. 13, in the building known as Satya Niketan, situated in plot no.13, J.J. Colony, Moti Bagh (Satya Niketan) New Delhi110021, as specifically shown in Red colour in site plan Ex.PW1/1 to the plaintiff and also Decree for an amount of Rs.1,42,200/ is passed in favour of the plaintiff against the defendant towards the arrears of rent for six months for the period pertaining to January to September, 2010.
Decree of mense profit / damages is passed in favour of the plaintiff and against the defendant, @ Rs.43,700/ per month towards the mense profit / damages from the period 3/10/2010 to 9/3/2011 alongwith interest @ 9 % per annum. Decree of pendentelite and future damages / mense profit is also passed in favour of the plaintiff and against the Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 17 defendant, @ Rs.43,700/ per month from the date of filing of the suit till delivery of possession of the suit property to the plaintiff.
The suit is decreed in the aforesaid terms in favour of the plaintiff and against the defendant.
Cost of the suit is also awarded in favour of the plaintiff against the defendant.
Decree sheet to be prepared accordingly.
The decree qua pendentelite and future damages / mense profit shall not be prepared till balance court fee on the amount as on the date of decree is paid by the plaintiff. Thereafter, file be consigned to record room.
(LAL SINGH) ADDL. DISTRICT JUDGE03(SW) DWARKA COURTS, NEW DELHI.
Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 18 Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee 19 Suit No.88/11 Sanjeev Kumar Vs. Amalgamated Bean Coffee