Delhi District Court
Smt. Meenakshi Khosla vs The Oriental Insurance Co. Ltd on 31 January, 2012
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)17,DELHI
Suit No. 39/2008
Unique Case ID No. 02401C0064572008
Smt. Meenakshi Khosla
Wife of Shri S.P. Khosla
R/o Khosla Farms
Mehrauli Gurgaon Road
Sultanpur, New Delhi
.......Plaintiff
Versus
The Oriental Insurance Co. Ltd.
Registered Office; Oriental House
A-25/27, Asaf Ali Road,
New Delhi- 110002 .........Defendant
Date of Institution of Suit : 22.01.2008
Date when reserved for orders : 13.01.2012
Date of Decision : 31.01.2012
JUDGMENT
1 Vide this judgment I shall decide the suit for recovery of Rs. 9,76,902/- filed by the plaintiff against the defendant. Brief fact necessitating in filing the present suit are given as under-:
2 That the plaintiff is the owner of premises bearing flat no. 403 having covered area of 1475 sq. ft and flat Nos 404 & 405 having covered area of 1207 sq ft both situated in Rattan Jyoti Building, Rajendra Place, New Delhi . The defendant was inducted as a tenant with respect these flats vide lease deed dated 27.04.1979.
The defendant was liable to pay all the maintenance charges etc as per the bills raised to the builder directly. The defendant had vacated the suit premises on 3.08.2003 pursuant to the decree of possession dated 07.01.2002. The defendant gave an assurance to the plaintiff that all the bills including electricity, water etc. have been paid by it to the builder, for the said premises. However, plaintiff was shocked to learn from M/s R.C. Sood & Company ( P) Ltd. that defendant had not paid the general maintenance and water charges and has left behind huge unpaid Suit no. 39/2008 1/16 arrears in this regard. As per the statement of account dated 31.01.2005 forwarded by the builder a sum of Rs. 38,938/- was outstanding towards water charges and a sum of Rs. 3,92,431/- due towards general maintenance charges up to 3.08.2003. The Plaintiff demanded no due certificate from M/s R.C. Sood & Company vide her letter dated 5.11.2004 for the aforesaid premises, however, M/s R.C. Sood & Company vide letter dated 22.11.2004 stated that such certificate can not be issued until the amount due alongwith interest against her tenant is cleared. The plaintiff called upon the defendant to pay the said amount but except the oral assurance nothing was done to clear the outstanding amount. Having left no alternative the plaintiff deposited the said maintenance and water charges alongwith interest with the builder as per receipt dated 5.02.2005. The plaintiff sent a legal notice to the defendant to pay the said amount, howeve, it has failed to clear the said amount till date nor replied the said notice.
On the basis of the above averment, the present suit has been filed against the defendant.
3 Pursuant to the summons defendant appeared and filed its written statement taking preliminary objection that suit is barred under Order 2 Rule 2 CPC. That suit is without any cause of action against the defendant. That suit is barred by limitation as defendant had delivered the vacant and physical possession of the premises to the plaintiff way back on 19.02.2002. That the plaintiff has suppressed the material facts. That suit is an abuse of the process of law.
4 On merit it is stated that relationship of landlord and tenant between the plaintiff and defendant does not exist because defendant has already handed over the possession of the premises on 19.08.2002 in compliance of the decree passed by the court. It is denied that defendant is liable to pay any dues of general maintenance, electricity and water charges. It is also denied that defendant had any privity of contract with M/s R.C. Sood Pvt. Ltd. It is also denied that defendant is liable to pay Suit no. 39/2008 2/16 anything to M/s R.C. Sood Pvt Ltd or to the plaintiff. It is also denied that defendant is bound to pay and re-reimburse the amount paid by the plaintiff. It is also denied that amount paid by the plaintiff was defendant's liability. All other averments have also been replied. It is prayed that suit be dismissed with heavy cost.
5 The plaintiff filed replication thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
6 On the basis of the pleadings of the parties, the ld. Predecessor of this court vide order dated 17.10.2008 framed the following issues for adjudication:-
1. Whether the suit is barred under Order 2 Rule 2 CPC? OPD
2. Whether the suit is barred by limitation ? OPD
3. Whether the suit is without any cause of action against the defendant? OPD
4. Whether the plaintiff is entitled to a decree, for a sum of Rs.
9,76,902/- as prayed? OPP
5. Whether the plaintiff is entitled to any interest on the amount claimed and if so, at what rate? OPP
6. Relief 7 In order to prove her case, plaintiff has examined herself as PW-1 and reiterated the averment made in the plaint in her examination in chief.
She exhibited the certified copies of the lease deed dated 27.04.79 as Ex. PW-1/A & B, another lease deed dated 17.11.84 and 30.12.84 as Ex. PW-1/C & D, circular of the builder R.C. Sood and Company Pvt. Ltd. As Ex. PW-1/E, Certified copy of the order dated 28.3.2005 as Ex. PW-1/F & G, Certified copy of the order dated 5.10.2006 as Ex. PW-1/H & J. Statement of account dated 31.03.2005 alongwith its summary as Ex. PW-1/K, L & M, letter dated 5.11.2004 dated 22.11.2004 and reply to letter dated 22.11.2004 as Ex. PW-1/N, O & P, Receipt dated 5.2.2005 issued by M/s R.C. Sood Pvt Ltd as Ex. PW-1/Q, Letter dated 25.01.2005 Suit no. 39/2008 3/16 as Ex. PW-1/R to T, legal notice dated 14.01.2008 alongwith original postal receipt and A.D and speed post as Ex. PW-1/U to W, certificate of Canara Bank regarding the prevalent rate of interest as Ex. PW-1/X, Letter dated 11.02.2005 as Ex. PW-1/Y. Plaintiff has also examined Sh. Sanjay Malaker, Assistant Manager (Accounts) in M/s Ajay Enterprises Pvt. Ltd as PW-2 and Sh. R.P. Singh, Estate Manager in M/s Kumar Construction Pvt. Ltd. as PW-3.
8 The defendant has not led any evidence in support of its case despite opportunities.
9 I have heard ld. Counsel for the parties and perused the pleadings, evidence and other material on record. My issuewise findings is as under:-
10 Issue No. 1: Whether the suit is barred under Order 2 Rule 2 CPC? OPD The defendant has taken a plea that plaintiff had earlier filed a suit for possession and recovery of damages/mesne profit being suit no. 28/03 & 29/03, In that suit the plaintiff had neither reserved her right to claim maintenance charges nor sought permission from the said court to file a separate suit. There suits were decreed vide order dated 7.01.2002 on an application filed under Order 12 Rule 6 CPC pursuant to which defendant vacated the premises on 19.08.2002. As per the defendant the earlier cause of action enabled the plaintiff to ask for a larger and wider relief than that to which she limited her claim, therefore, the present suit is barred under Order 2 Rule 2 CPC. The relief claimed by way of present suit could have been claimed in the previously instituted suit by the plaintiff, however, she has failed to do so without the leave of the court , therefore, the present suit is not maintainable and is liable to be dismissed under Order 2 Rule 2 CPC.
11 On the other hand ld. Counsel for the plaintiff contended that Suit no. 39/2008 4/16 cause of action for the previous suit and the cause of action for the present suit are altogether different and Order 2 Rule 2 CPC is not applicable in the present case as the plaintiff was not having the cause of action for recovery of amount of maintenance charges from the defendant at the time of institution of the previous suit.
12 Order 2 Rule 2 of the Code Civil Procedure lays down the general principle that a suit must include whole claim which the plaintiff is entitled to make in respect of a cause of action and if he does not do so when he is visited with the consequences indicated therein. It provide that all reliefs whatsoever having same cause of action shall be set out in one and the same suit could further prescribed consequences if the plaintiff omit to do so. Order 2 Rule 2 CPC reads as under:-
(2) Suit to include the whole claim-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.
13 A perusal of the above clearly shows that once the plaintiff comes to the court of law for getting any redress basing her case on existing cause of action, she must include in her suit the whole claim pertaining to that cause of action. But if she gives up a part of the claim based on the same cause of action or omits to sue in connection with the same, then she cannot subsequently resurrect the said claim based on the same cause of action. So far as Sub rule (3) is concerned before the second suit of the plaintiff can be held to be barred by the same, it must be Suit no. 39/2008 5/16 shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to her on the basis of that cause of action, the reliefs which she had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting its plea of bar of Order 2, Rule 2 sub-rule ( 3) that the second suit of the plaintiff filed is based on the same cause of action on which earlier suit was based and that because she had not prayed for any relief and had not obtained leave of the court in that connection, she cannot sue for that relief in the present suit.
14 It is pertinent to mention that although defendant has taken a plea that the suit is barred by Rule 2 Rule 2 CPC, however, it has not placed on record the pleadings qua the previously instituted suit which was mandatory of its part. A Constitution Bench of Hon'ble Supreme Court of India in Gurbux Singh Vs Bhoorlal reported as AIR 1964 SC 1810 has held that, "In order that a plea of a bar under Order 2 Rule 2 ( 3) Civil Procedure Code should succeed the defendant who raises the plea must make out ( 1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; ( 2) that in respect of that cause of action the plaintiff was entitled to more than one relief; ( 3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that a plea of a bar under Order 2 Rule 2, Suit no. 39/2008 6/16 Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the causes of action in the two suits. The cause of action in the previous suit would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that relies were claimed without the necessary averments to justify their grant. From the mere use of the words' mesne profits' in the previous suit one need not necessarily infer that the possession of the defendants was alleged to be wrongful. It is also possible that the expression has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that a plea based on the existence of a former pleading cannot be entertained when the pleadings on which it rests has not been produced.
The above legal proposition has been reiterated by the Hon'ble Supreme Court in Bengal Waterproof Limited Vs M/s Bombay Waterproof Manufacturing Company reported as AIR 1997 S.C. 1398 and in S. Nazeer Ahmed Vs. State Bank of Mysore reported as AIR 2007 S.C.
989. 15 In the instant case, the defendant has neither led any evidence nor produced the pleadings of the previous suit filed against it. In the absence of the pleadings of the former suit, the plea of the defendant of bar of the suit under order 2 Rule 2 CPC cannot be entertained.
16 It is relevant to mention that the plaintiff filed a suit for Suit no. 39/2008 7/16 possession against the defendant on the basis that defendant failed to deliver of the premises to the plaintiff despite the termination of the tenancy.
17 The plaintiff could not have claimed the relief sought by way of present suit at the time of filing of earlier suit, It is an admitted case of the parties that defendant was to pay the maintenance charges directly to the builder and not to the plaintiff. The claim of the plaintiff in the present suit is based on Section 69 of the Contract Act, therefore, she could not have claimed the amount of maintenance charges from the defendant unless and until same have been paid to the builder by the plaintiff on behalf of the defendant. The plaintiff has deposited the amount of maintenance charges and interest with the builder on 25.01.2005 by a cheque which have been received by the builder vide receipt Ex. PW-1/Q, therefore the plaintiff has got cause of action to recover the said amount after she made the said payment. The cause of action for filing of the present suit is altogether different from the cause of action of the previously instituted suit filed by the plaintiff against the defendant and the relief sought by the plaintiff by way of present suit was not at all available or could not have been claimed at the time of filing of the previous suits, therefore, order 2 Rule 2 CPC is not applicable in the facts and circumstances of the present suit.
In view of the above facts and circumstances, I am of the considered view that the present suit is not barred under Order 2 Rule 2 CPC. The defendant has failed to discharge the onus of issue no. 1, same is accordingly decided against the defendant.
Issue no. 2: Whether the claim of the plaintiff is barred by limitation?
OPD 18 The defendant has taken a pleas in para 3 of his preliminary objection that the claim of the plaintiff is barred by time because the defendant had delivered the vacant and peaceful possession to the plaintiff way back on 19.08.2002. However, the defendant has not led any Suit no. 39/2008 8/16 evidence in order to substantiate its plea.
The suit of the plaintiff is based on the fact that there was a contract between the plaintiff and the defendant whereby defendant had agreed to pay the maintenance charges and other charges directly to the builder. However, it had failed to pay those charges to the builder consequently the plaintiff was compelled to pay the said amount on behalf of the defendant.
The plaintiff could have recovered the said amount under Section 69 of the Contract Act from the defendant only after she has paid the said amount to the builder. The plaintiff has paid the said amount to the builder on 25.01.2005 vide receipt Ex. PW-1/Q, therefore, cause of action for seeking recovery of the said amount accrued in favour of the plaintiff on 25.01.2005.
The suit for recovery of said amount could have been filed within three years from that date. The instant suit has been filed on 22.01.2008 i.e within three years from the commencement of the cause of action. The Hon'ble Nagpur High Court in Tota Ram Jawahar Lal Kalwar Vs Har Vishan Raja Khatri reported as AIR 1937 Nagpur 403 has held that, " The right to reimbursment arises under Section 69 of the Contract Act on a contract either express or apply to reimbursemnt, and the liberty is three years from the date on which the money was paid."
In the instant case the money was paid by the plaintiff to the builder vide receipt Ex. PW-1/Q on 25.01.2005. The present suit could have been filed up to 25.01.2005. The instant suit has been filed on 22.01.2008 i.e within of three years from the date of commencement of the cause of action same is thus within the period of limitation.
In view of the above, I am of the considered view that present suit has been filed within the period of limitation. The defendant has thus failed to discharge the onus of issue no. 2, same is accordingly decided against the defendant.
Issue no. 3: Whether the suit is without any cause of action against the defendant ? OPD Issue no. 4: Whether the plaintiff is entitled to a decree, for a sum of Suit no. 39/2008 9/16 Rs. 9,76,902/- as prayed? OPP 20 Issue no. 3, & 4 are taken together as they are interconnected. The plaintiff has taken a plea that she inducted the defendant as tenant in flat No. 403, 404 & 405 situated in Rattan Jyoti Building, Rajendra Place, New Delhi vide lease deed dated 27.04.1979. It was agreed between the plaintiff and the defendant that defendant wouldl pay the maintenance charges and other charges directly to the builder. As per the plaintiff the defendant delivered the possession of the tenanted premises on 3.08.2003 pursuant to the decree of possession dated 7.01.2002 passed against it. At the time of delivery the possession, the defendant assured that all the bills including electricity, water etc up to date stands paid by it. However, subsequently, plaintiff came to know through M/s R.C.Sood & Co. Pvt. Ltd that defendant has not paid general maintenance and water charges and has left behind huge unpaid arrear. The plaintiff made request to the defendant to clear the said charges. However, despite request defendant has not paid the same, thus plaintiff was compelled to pay the said amount including the interest to the builder on behalf of the defendant which she paid on 25.01.2005. As per the plaintiff the said amount was paid by her on behalf of the defendant, therefore, defendant is liable to reimburse the plaintiff.
21 On the other hand defendant has taken a plea that defendant is not liable to pay any such amount to the plaintiff or to M/s R.C. Sood & Co. Pvt. Ltd because it had already handed over the possession of the premises to the plaintiff on 19.08.2002.
22 In order to substantiate her claim plaintiff has examined herself as PW-1 and reiterated the averment made in the plaint in her examination in chief. During cross-examination PW-1 briefly deposed that the possession of the above premises was taken by her in the year August 2003 by way of a court decree. Before the possession was handed over to her, no bills pertaining to maintenance, water charges etc relating to the Suit no. 39/2008 10/16 aforesaid premises was ever raised by the builder R.C. Sood & Co. to her. She came to know about the outstanding due after the defendant company handed over the possession to her and when she asked no due certificate from the builder. She further stated that she does not remember exact day, date and time when she contracted the concerned personnel of the defendant to demand the outstanding payment towards maintenance water charges etc however, it was between November 2004 and March 2005. She does not remember the name or designation of the personnel whom she contacted. She denied that defendant is not liable to pay any outstanding bill to the plaintiff.
23 The defendant has not led any evidence in support of its case.
24 The short question for consideration is whether in these circumstances the defendant is bound to re-imburse the plaintiff for the maintenance charges and interest payable and paid for the period of defendant's enjoyment of the property. The claim of the plaintiff is based upon Section 69 of the Indian Contract Act which runs as under - " A person who is interested in the payment of money which another is bound by law to pay, and should therefore pays it, is entitled to be re-imbursed by the other.
25 For a claim to be sustained under Section 69 of the Act, the plaintiff must established three things (1) That defendant was bound by law to pay the amount in question ( 2) That plaintiff was interested in payment of the money ( 3) She, therefore, paid the money.
26 The payment to the third party must be because of the interest the plaintiff had in the payment. It must not be an officious and voluntarily one. The scope of Section is manifest, it affords to the person who pays money because she has herself an interest in making the payment, an indemnity in respect of the payment against a person who should have made the payment should rather then he, could have made Suit no. 39/2008 11/16 liable at law to make the payment. The word "bound by law to pay in Section 69 do not exclude those obligations by law which arises inter parties whether by contract or tort and are not confined only to those public duties which are imposed by statute or general law.
27 It is not in dispute that plaintiff let out the premises bearing flat no. 403, 404 & 405 situated in Rattan Jyoti Building, Rajinder Place, New Delhi. It is also not in dispute that the defendant agreed to pay the maintenance, electricity and water charges to the builder directly as per the actual consumption vide lease agreement Ex. PW-1/A to C. 28 The plaintiff has taken a plea that defendant vacated the tenanted premises on 3.8.2003 pursuant to a court decree dated 7.01.2002. The defendant on the other hand pleaded that it had delivered the possession of the tenanted premises to the plaintiff on 19.08.2002. The plaintiff has examined herself as PW-1 and reiterated the said fact in para 6 of his examination in chief. During cross-examination PW-1 deposed that the possession of the suit premises was taken by her in August 2003 by way of court decree. The said deposition of PW-1 has not been challenged by the defendant nor she was given any suggestion that defendant had handed over the possession on 19.08.2002 and not on 3.08.2002. In the absence of any cross-examination of PW-1 with respect to the above plea, her statement that she received the possession on 3.08.2002 through court decree deem to have been admitted by the defendant. The defendant has not produced any material on record which can show or suggest that it delivered the possession of the tenanted premises to the plaintiff on 19.08.2002 and not on 3.08.2003 as pleaded by the plaintiff. The plaintiff has thus proved on record that defendant delivered the possession of the tenanted premises on 3.08.2003.
29 As per plaintiff an assurance was given by the defendant that all bills including electricity, water for the said period had already stands paid, however, she was shocked to learn from the builder that defendant Suit no. 39/2008 12/16 had not paid the general maintenance and water charges and has left behind huge unpaid arrear in this regard and has not paid the said despite the request. Therefore, plaintiff had left no alternative but to deposit the said amount on behalf of the defendant. The defendant has denied its liability and taken a plea that it had already vacated the premises on 19.08.2002, therefore, it is not liable to pay any such amount. Beside the above averment the defendant has not furnish any detail of any such payment made by the defendant.
30 In order to substantiate her case plaintiff has examined herself as PW-1 and reiterated the plea taken by her in her examination in chief. She has been throughly cross-examined by ld. Counsel for the defendant, however, her testimony to the effect that defendant has not paid general maintenance and water charges and has left huge unpaid arrear remain unchallenged. Defendant has not carried out any cross- examination with respect to the above testimony. PW-1 has also deposed in her examination in chief that a sum of Rs. 38,938/- was outstanding towards water charges and a sum of Rs. 3,92,431/- was due towards general maintenance up to 3.8.2003. She has further deposed in para 12 of her examination in chief that, " defendant was liable to pay the maintenance and water charges to the builder directly which was not paid by it as such having no other remedy available with her she had to deposit the said maintenance and water charges alongwith interest to the builder, M/s R.C. Sood and Company Pvt. Ltd. As per receipt dated 5.2.2005 Ex. PW-1/Q and Ex. PW-1/R to T. The defendant has not disputed the above testimony of PW-1 during her cross-examination. Defendant has not carried out any cross-examination of PW-1 to the effect that said amount was not due or paid by her. In the absence of any cross-examination or confrontation of PW-1, the defendant has deemed to have been admitted the above testimony of PW-1.
31 The plaintiff has placed on record the statement of account dated 31.01.2005 Ex. PW-1/K to M. A perusal of Ex. PW-1/M shows that Suit no. 39/2008 13/16 a sum of Rs. 6,79,584/- was due and recoverable from the defendant as on 3.08.2003 including interest charged by the builder. The said amount was deposited by the plaintiff with the builder on 25.01.2005 vide letter Ex. PW-1/S & T for which M/s R.C. Sood Company Pvt. Ltd issued receipt Ex. PW-1/Q and subsequently no due certificate Ex. PW-1/Y. 32 It is relevant to point out here that before filing the present suit the plaintiff has issued a legal notice Ex. PW-1/V dated 14.05.2008 upon the defendant demanding the said amount from it . The said notice was sent through speed post. The original postal receipt and Speed post are Ex. PW-1/U & W. The defendant has not disputed the receipt of the legal notice Ex. PW-1/V, it only taken a plea that said notice was baseless. Despite the service of the legal notice defendant has not given any reply of the said notice. The Hon'ble High Court in "Kalu Ram Vs. Sita Ram"
reported as 1980 RLR (N) 44 has held:- "If plaintiff before filing suit makes serious assertions in a notice to defendant, then, defendant must not remain silent by ignoring to reply. If he does show then addressee inference may be raised against him."
33 In the present case plaintiff has served a legal notice Ex. PW-1/V upon the defendant which was sent through speed post at the correct address of the defendant but despite the service of the legal notice defendant has not given any reply. In the absence of any reply an adverse inference is required to be drawn against the defendant.
34 The defendant has although disputed its liability but has not led any evidence to disprove the case of the plaintiff. The defendant has not produced any material to show that it had cleared all the charges qua general maintenance and water charges qua the premises under its occupation till it delivered the possession to the plaintiff. The defendant has not placed any material which can show or suggest that it was not liable to re-imburse the plaintiff for the amount paid by her on its behalf.
Suit no. 39/2008 14/1635 In view of my above discussion my issuewise findings is as under:-
Issue no. 3: The onus to prove issue no. 3 was on defendant. The defendant has failed to prove on record that plaintiff has no cause of action against it. The defendant has thus failed to discharge the onus of issue no. 3, same is accordingly decided against the defendant. Issue no. 4 : The plaintiff has proved on record that she inducted the defendant as a tenant in the tenanted premises which was vacated by it on 3.08.2003. She has further proved on record that it was agreed between the parties that defendant would pay the maintenance and other charges directly to the builder. The plaintiff has further proved on record that defendant has failed to pay the general maintenance charges and water charges during its occupation in the tenanted premises and has left huge unpaid amount which was paid by the plaintiff to the builder on behalf of the defendant. The plaintiff has proved on record that it was the liability of the defendant towards the builder which has been discharged by the plaintiff as he has an interest in the tenanted premises. Therefore the defendant is liable to reimburse the amount paid by the plaintiff for discharging the liability of the defendant which was incurred during its occupation in the tenanted premises. The plaintiff has thus discharge the onus of issue no. 4. The plaintiff is thus entitled to recover Rs. 6,79,584/-
against the defendant. Issue no. 4 is accordingly decided.
36 Issue no. 5: Whether the plaintiff is entitled to any interest on the amount claimed and if so, at what rate? OPP The plaintiff has claimed interest @ 15% p.a from 5.2.2005 when she made the payment to the builder till the actual realization of the amount. Undoubtedly plaintiff has not placed any material on record which shows that any such rate of interest was agreed between the parties. However fact remains that the plaintiff was compelled to pay the amount which defendant was under obligation to pay to the builder. However, it had failed to do so. Consequently defendant was liable to reimburse the Suit no. 39/2008 15/16 plaintiff as per Section 69 of the Contract Act. plaintiff was compelled to pay the said amount on its behalf. The defendant has not reimburse the plaintiff despite the service of the legal notice thus withheld the said amount illegally, therefore, made itself liable to pay interest. If the plaintiff had invested the said amount somewhere she would have earned interest thereto, therefore equity demands that defendant should pay interest on the said amount paid by the plaintiff on its behalf.
Taking into consideration the facts and circumstances, I am of the considered view that interest of justice would be served if the plaintiff is awarded interest @ 9% simple from 1.4.2005 till the actual realization of the amount. Issue no. 5 is accordingly decided.
37 Relief In view of the above, the suit filed by the plaintiff is decreed with cost. A decree is passed towards the maintenance and water charges in favour of plaintiff and against the defendant. A decree for a sum of Rs. 6,79,584/- is passed in favour of the plaintiff against the defendant alongwith interest @ 9% p.a simple w.e.f 5.2.2005 till the actual realization of the amount. Decree Sheet be prepared accordingly.
Announced in the open court (PITAMBER DUTT)
31st January, 2012 Additional District Judge
Delhi
Suit no. 39/2008 16/16
Suit no. 39/2008 17/16