Delhi District Court
Vanishree Enterprises vs Sh. Anand Gupta on 13 March, 2015
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-06, CENTRAL, TIS HAZARI COURT, DELHI
Suit no. 731/14
Unique ID No. 02401C0403232006
Vanishree Enterprises
Through Co-owner Partner
Sh. Ram Prakash S/o Late Sh. Brij Mohan Lal
R/o 212, Sukhdev Vihar, New Delhi- 110025
.....Plaintiff
Versus
Sh. Anand Gupta
S/o Sh. Vinod Gupta, Proprietor
M/s Rinox Engineering
(Sister concern of Anand Concast Limited)
1103/2-A, Tagore Nagar, Ludhiana
.....Defendant
SUIT FOR RECOVERY OF RS. 62,500/- (RUPEES SIXTY TWO
THOUSAND AND FIVE HUNDRED ONLY)
DATE OF FILING OF THE SUIT : 09.05.2006
DATE ON WHICH RESERVED
FOR JUDGMENT : 09.03.2015
DATE OF ORDER/JUDGMENT : 13.03.2015
Suit. No. 731/14 Page No. 1 of 24
Vanishree Enterprises V. Anand Gupta On 13th March, 2015
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant for recovery of Rs. 62,500/- (Rupees Sixty Two Thousand and Five Hundred Only) u/o XXXVII CPC.
2. The brief facts of the case, as per the plaint, are that the plaintiff is a co-owner and having right to give on license the suit premises situated at D-9/4, Okhla Industrial Area, Phase-I, New Delhi-20. That the plaintiff had through a duly executed 'Leave and License Agreement' gave the suit premises for use on license to the defendant for a period of five years, w.e.f 01.07.04 at a monthly license fee of Rs. 60,000/- per month from 01.07.2004 to 30.06.2007 and at the rate of Rs. 72,000/- per month from 01.07.2007 to 30.06.2009. That the defendant did not pay the license fee despite repeated requests personal and written through duly served notice dated April 10, 2006 sent vide registered acknowledgment due post. That the defendant vacated the suit premises at the close of March 2006 in utterly dilapidated and shabby conditions without making payment of the electricity and other dues. The defendant had also not given to the plaintiff TDS certificates for the period April 2005 to February 2006, which defendant is under legal obligation to give. That plaintiff, on account of default in payment of License fee as per the terms of the 'Leave and License Agreement', is entitled to recover the total Suit. No. 731/14 Page No. 2 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 amount of Rs. 62,500/- including license fee, interest and notice cost. Thus, it is prayed to pass a decree of Rs. 62,500/- along with pendentelite and future interest @ 20% per annum on the said decreetal amount.
3. In Written Statement, it is stated that "Vanishree Enterprises"
is not a legal entity but however, present suit has been filed for recovery of Rs. 62,500/- against the defendant in the name of the plaintiff. It is further stated that the present suit has been filed by one Sh. Ram Prakash and he has mentioned in the title of the suit that he is co-owner and partner of M/s Vanishree Enterprises but however he has neither filed any documents regarding ownership of property bearing no. D-9/4, Okhla Industrial Area Phase-I, New Delhi-20 nor copy of partnership deed nor certificate of registration of partnership firm. That the present suit is liable to be dismissed on this ground alone. It is further stated that the suit of the plaintiff is liable to be dismissed on account of non compliance of provisions of Order VI rule (15) (4) of CPC since the plaintiff has neither filed affidavit in support of plaint nor verified the plaint in accordance with law. That the suit of the plaintiff is liable to be dismissed under the provisions of Order 1 rule 8 and 10 of CPC on account of non- joinder of necessary parties to the suit. That since the present suit has been instituted in the name of partnership firm by only one partner namely Mr. Ram Prakash in utter violation of Order XXX rule 1 and 2 CPC and as such suit of the plaintiff is not maintainable Suit. No. 731/14 Page No. 3 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 in present form. That the alleged "Leave and License Agreement"
dt. 27.08.2004 filed by the plaintiff is neither duly stamped accordingly to the Indian Stamp Act, 1899 nor registered under the Registration Act, 1908 and hence, same cannot be acted upon. It is contended that the said "Leave and License Agreement" is a "Lease deed", which required compulsory registration. It is also contended that defendant wanted to quit from the aforesaid rented premises due to poor condition of said rented premises and other facilities. All other averments of the plaint have been denied.
4. In replication, all averments of the WS have been denied and those of the plaint have been reaffirmed.
5. Vide order sheet dt. 17.12.11, following issues were framed as under:-
1. Whether the plaintiff is not competent to file the present suit in its present form? OPD.
2. Whether the leave and license agreement filed by the plaintiff is in fact, a rent/ month to month lease agreement?
3. Whether the present suit is not maintainable for non-joinder by necessary and proper parties? OPD.
4. Whether leave and license agreement dt. 27.08.2008 filed by the plaintiff was required to be compulsory registered under the Registration Act, 1908? If yes, its effect? OPD.
5. Whether the suit has not been verified in accordance with law?Suit. No. 731/14 Page No. 4 of 24
Vanishree Enterprises V. Anand Gupta On 13th March, 2015 OPD.
6. Whether plaintiff has no cause of action to file the present suit against the defendant?
7. Whether the plaintiff is entitled to decree of Rs. 62,500/- against the defendant? If so, for what period and at what rate of interest? OPP.
8. Relief.
6. To substantiate its case on judicial file, Sh. Ram Prakash appeared on behalf of plaintiff as PW-1 and his affidavit is EX PW 1/A. The documents filed and relied upon on behalf of plaintiff are letter dt. 31.07.06 EX PW 1/1, leave and license agreement EX PW 1/1, notice EX PW 1/2, letter EX PW 1/3, postal receipts EX PW 1/4, letter dt. 22.03.06 EX PW 1/5, notice dt. 10.04.06 EX PW 1/6, postal receipt EX PW 1/7, letter dt. 15.4.06 EX PW 1/8, notice EX PW 1/9, postal receipts EX PW 1/10, letter dt. 14.07.06 EX PW 1/11, letter dt. 22.05.06 EX PW 1/14, bill EX PW 1/15, Annexure-I EX DW 1/P2.
7. On the other hand, Sh. Anil Kumar Dhawan appeared on behalf of defendant as DW-1 and his affidavit in evidence is EX DW 1/A. The documents filed and relied upon on behalf of defendant are SPA and GPA EX DW 1/1.
8. I have heard the arguments and perused the record. My issue-
Suit. No. 731/14 Page No. 5 of 24Vanishree Enterprises V. Anand Gupta On 13th March, 2015 wise disposal of the present suit is as under:-
9. Issue No. 1 & 3:-
1. Whether the plaintiff is not competent to file the present suit in its present form? OPD.
3. Whether the present suit is not maintainable for non-
joinder by necessary and proper parties?
Both issues involve common discussion, hence are taken together. The contention of defendant regarding incompetency to file suit in present form is that the plaintiff "Vanishree Enterprises"
is not a legal entity and one Sh. Ram Prakash has been mentioned in the title as co-owner partner of this Vanishree Enterprises but no document of ownership of property nor any partnership deed or certificate of registration of partnership firm has been filed on behalf of plaintiff. It is also contended that suit of the plaintiff is not maintainable in present form since the present suit has been instituted in the name of partnership firm by only one partner namely Mr. Ram Prakash in utter violation of Order XXX rule 1 and 2 of CPC and as such suit of the plaintiff is not maintainable.\
10. With respect to non-joinder, defendant has contended that suit is liable to be dismissed under provisions of Order 1 rule 8 and 10 CPC on account of non-joinder of necessary parties to the suit.
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11. Although in plaint, it is stated that plaintiff is a co-owner having right to give on license the suit premises but in replication this contention of incompetency to file the suit is dealt with in detail by stating that the defendant licensee is in full knowledge of the fact that plaintiff is a co-owner partner of the suit premises and during the period of occupation he had been paying the agreed license fee. It is further stated in the replication that Vanishree Enterprises is not a partnership firm in usual business sense and as such registration certificate of partnership firm is not required and that the plaintiff concern is an association of family members only viz. he himself, his son and his daughter for the purpose of co- sharing the property and any of the co-owners in his/ her representative capacity having actual existing interest has a valid right to file the present suit.
12. Broadly, the objection of the defendant is that no partnership deed or registration certificate of the plaintiff has been filed and also that the suit instituted in the name of partnership firm by only one partner namely Ram Prakash is in violation of Order 30 Rule 1 & 2 CPC. Thus, the defendant contends that the said Vanishree Enterprises is a partnership firm. But cross examination of DW-1 dt. 08.08.14 reveals that the said witness in his affidavit in evidence EX DW 1/A or even in the WS, signed and verified by him, has deposed or stated about the said partnership not on the basis of his personal knowledge. In his said testimony dt. 08.08.14, DW-1 answered to one of the question that he was only told that it was a Suit. No. 731/14 Page No. 7 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 partnership firm with whom the said agreement was entered into. The necessary excerpt of the cross examination dt. 08.08.14 of DW-1 is reproduced as under:-
"Ques: Were you also told by Sh. Anand Gupta that at the time of execution of agreement of leave and license, did he ask for partnership deed or original lease with DDA or certificate of AOP from Mr. Ram Prakash?
Ans: I was only told that it was a partnership firm with whom the said agreement was entered with.
Ques: Did Mr. Anand Gupta told you that Mr. Ram Prakash had shown a partnership deed to him?
Ans: I do not remember as it has been a long time."
The above testimony clearly reveals that whatever DW-1 deposed is hearsay. The person pleading and deposing has merely derived his knowledge from the defendant and therefore, the testimony of this witness/ DW-1 with respect to the contention regarding partnership firm is of no value. It is hereitself noted that defendant never stepped into the witness box.
13. Further, it is seen that the plaintiff contends that the said Vanishree Enterprises is an Association of Persons and not a partnership firm. It is observed that the plaintiff had also sent letters to the Income Tax Department regarding deduction of TDS and non issuance of certificates by M/s Rinox Engineering of which defendant is the proprietor. These letters are EX PW 1/11, EX PW 1/6, EX PW 1/12 & EX PW 1/14 in which the said Vanishree Enterprises has been shown as AOP i.e. Association of Persons Suit. No. 731/14 Page No. 8 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 having a Permanent Account Number. Section 2 (31) of the Income Tax Act, 1961 provides the definition of 'person' which includes an 'Association of Persons' whether incorporated or not. The Explanation, inserted vide Finance Act, 2002, to this sub-section states that Association of Persons or a body of individuals etc. shall be deemed to be a person, whether or not such person or body was formed or established or incorporated with the object of deriving income, profits or gains. Thus, this Explanation makes clear that an Association of Persons or body of individuals etc. may be formed or established even without the object of deriving income, profits or gains. This differentiates an AOP from a partnership firm as in a partnership firm the partners carry on business for the purposes of making profit. The plaintiff in the present case is stated to be an Association of Persons (AOP) of family members represented through Sh. Ram Prakash. The defendant has not brought anything on record to show that the said Vanishree Enterprises is a partnership firm. The agreement EX PW 1/1 neither records anything to the effect that the said Vanishree Enterprises is a partnership firm or the said Ram Prakash, Ashutosh and Ms. Neerja are the partners in any partnership firm such as Vanishree Enterprises. These persons are merely described as co-owners and jointly referred as 'licensors.' Merely using the words 'co-owner partner' by the plaintiff will not in any way change the position and/ or infer to conclude that Vanishree Enterprises is a partnership firm. The plaintiff should have used the word 'member' which is the Suit. No. 731/14 Page No. 9 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 correct nomenclature as applicable in cases of persons who have formed an Association of Persons. Thus, the plaintiff concern, though an unincorporated entity, is a duly identified entity for the purposes of Income Tax. The said 'Vanishree Enterprises', for the purposes of Civil Procedure Code, may not be considered as a proper entity for suing, it being an unincorporated/ unregistered entity, yet it is merely a procedural technicality which cannot fail the present suit as one of the member of the said AOP has filed the present suit and has also got himself examined. The principle of 'Agency' is applicable as the said member Mr. Ram Prakash is deemed to represent other members of the AOP also. Nothing has been shown on record by the defendant that there is some adverse interest of this member against other members. Moreover, the defendant has admitted his capacity as a tenant in the suit property and therefore, he cannot question the title of the landlord. It is also observed that the defendant has been dealing with the said Mr. Ram Prakash itself during the relevant period as is observed from the communications through letters etc. Thus, it was not necessary for the other members to join the present suit as co-plaintiffs. Furthermore, it is settled proposition of law that one co-owner can file the suit for eviction of a tenant / licensee in the property severally owned by co-owners. It is also the mandate of M/s India Umbrella Manufacturing Co. & Bhagabandei Aggarwala, 2004 (1) RCR 1 SC.
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14. The discussion and findings in the foregoing paras thus caters to the contentions of defendant regarding Order 1 Rules 8 & 10 and Order 30 Rules 1 & 2 CPC.
15. In view of the above discussion, issues no. 1 and 3 are decided in favour of the plaintiff and against the defendant.
16. Issue No. 2 & 4:-
2. Whether the leave and license agreement filed by the plaintiff is in fact, a rent/ month to month lease agreement.
4. Whether leave and license agreement dt. 27.08.08 filed by the plaintiff as required to be compulsory registered under the Registration Act, 1908? If yes, its effect?
17. The plaintiff's case is that the suit property was given on license to the defendant for a period of five years w.e.f. 01.07.04 at a monthly license fee of Rs. 60,000/- from 01.07.04 to 30.06.07 @ 72,000/- per month from 01.07.07 to 30.06.09 and a leave and license agreement EX PW 1/1 was executed. The defendant without disputing the execution of said agreement contends that the premises was taken on rent and not on license basis and therefore this agreement is not a leave and license agreement and moreover, it is not duly stamped and it is also unregistered.
18. The defendant relied upon the authority of Associated Hotels Suit. No. 731/14 Page No. 11 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 of India Ltd.V. R. N. Kapoor AIR 1959 SC 1262 to contend that this agreement is a rent agreement and not a leave and license agreement. In this authority, Hon'ble Supreme Court laid down that where question is whether the document is a lease or a license, it is the substance of the agreement that matters and not the form, for otherwise clever drafting can camouflage the real intention of the parties. Hon'ble Supreme Court also observed that there is a marked distinction between a lease and license as section 105 of Transfer of Property Act, 1882 defines a lease of immovable property as a transfer of a right to enjoy such property and u/s 108 of the said Act, the lessee is entitled to be put in possession of the property and therefore a lease is a transfer of interest in land and the lessor parts with his right to enjoy the property during the term of the lease and it follows from it that the lessee gets that right to the exclusion of the lessor whereas section 52 of the Indian Easement Act defines a license as a right to do or to continue to do in or open the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property. Under para 27 of this authority, the Hon'ble Court laid down certain propositions which are reproduced as under:-
"The following propositions may be taken as well established : (1) To ascertain whether a document creates a license or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) if the document creates an interest in the Suit. No. 731/14 Page No. 12 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence, and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease."
19. Applying the above proposition, as enunciated by Hon'ble Apex Court, to the present case, it is seen that admittedly the premises was handed over by the plaintiff to the defendant with its physical possession for carrying out the business of the defendant. Thus, the exclusive possession of the premises remained with the defendant. It is even noted in the pleadings and the evidence that the key of the premises was also remained with the defendant which was finally handed over to plaintiff. Further, more importantly, the plaintiff/ PW-1 in his cross examination dt. 09.04.12 has clearly admitted as follows:-
"I had let out the suit property to the defendant for industrial purpose i.e. property bearing D-9/4, Okhla Industrial Area. It is correct that in the said premises defendant had installed manufacturing unit of brass and stainless steel and carrying out production therefrom. It is correct that I had let out the said property to the defendant on the date as mentioned in my plaint. It is correct that I had handed over the keys of aforesaid suit property to the defendant at the time of letting out the same. I do not remember how many times I visited at the suit property to inspect the same, while the same remain in the occupation of the defendant. I cannot say whether I visited one time, two time or 10 times. It is wrong to suggest that I had not Suit. No. 731/14 Page No. 13 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 inspected the suit property therefore, I cannot tell how many times I visited thereon."
The above testimony clearly reveals that plaintiff had let out the premises to the defendant and the defendant came into actual physical possession and control over the tenanted premises.
20. Also the plaintiff cross examined DW-1 on 08.08.14 in which the witness/ DW-1 deposed that the rent for March, 2006 has not been paid and that the rent was Rs. 60,000/- per month and there was no date fixed for payment of rent. It is noted that at several places this witness DW-1 has in his answers used the word 'rent' and it is nowhere confronted by the plaintiff to this witness that it is license and not rent.
21. Thus, the above noted testimonies of PW-1 and DW-1 make it amply clear that even the plaintiff considers the defendant to be a tenant and the monthly amount which was received from defendant to be the rent for using the premises. Also, the said agreement EX PW 1/1, though couched in the language of leave and license agreement, when read, suggests that lease had been created. Thus, I have no hesitation to hold that the said agreement EX PW 1/1 is in fact a lease agreement. Now, since the premises was let out for a period of five years, the said agreement EX PW 1/1 required compulsory registration as per provisions of section 17 of the Registration Act,1908 which provides that lease for a term Suit. No. 731/14 Page No. 14 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 exceeding one year requires compulsory registration. But since this agreement is an unregistered agreement therefore, section 49 of the Act comes into play which states that no document required by section 17 to be registered shall be received in evidence of any transaction affecting such property unless it has been registered. However, the proviso to this section allows the evidence of any collateral transaction not required to be effected by registered instrument. Thus, since this agreement as per section 49 of The Registration Act, cannot be read in evidence, the tenancy of the defendant is deemed to be month to month tenancy. Issue No. 2 and 4 are accordingly decided against the plaintiff and in favour of the defendant.
22. Issue No. 5:- Whether the suit has not been verified in accordance with law? OPD.
The onus of proving this issue was upon the defendant but the defendant has failed to prove how the suit is not verified in accordance with the law. Defendant has only taken the plea that plaintiff has not complied with the provisions of Order VI rule 15 (4) CPC. This provision i.e. Order VI rule 15 (4) CPC requires affidavit of the person verifying pleading to be furnished in respect of his pleadings. Record shows that along with the plaint, there is a supporting affidavit of the same person Mr. Ram Prakash, who verified the plaint. It is also not seen that the plaint is not verified.
Suit. No. 731/14 Page No. 15 of 24Vanishree Enterprises V. Anand Gupta On 13th March, 2015 Thus, this issue is decided in favour of the plaintiff and against the defendant.
23. Issue No. 6:- Whether plaintiff has no cause of action to file the present suit against the defendant?
Cause of action is a bundle of facts which entitles the plaintiff to claim the relief in a suit. The plaintiff has sought the recovery of license fee of Rs. 60,000/- for the month of March, 2006 along with interest alleging defendant to be a licensee in the premises. Thus, it cannot be said that the plaintiff has no cause of action to file the present suit against the defendant. Issue decided accordingly in favour of the plaintiff and against the defendant.
24. Issue No. 7:- Whether the plaintiff is entitled to decree of Rs. 62,500/- against the defendant? If so, for what period and at what rate of interest? OPP.
Plaintiff claims the said amount on the basis that defendant did not pay the license fee for the period of March, 2006 which was to be paid by 5th March, 2006 despite repeated requests personal and written and through duly served notice dt. 10.4.06. It is alleged by the plaintiff that defendant vacated the suit premises on the close of March, 2006 in utterly dilapidated and shabby condition without Suit. No. 731/14 Page No. 16 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 paying electricity dues and the defendant had also not given TDS certificate to the plaintiff for the period April, 2005 to February, 2006.
25. On the other hand, defendant contends that he wanted to quit the rented premises due to its poor condition and therefore on 01.03.06, he had a talk with Sh. Ram Prakash and after discussion it was agreed that defendant would hand over possession on or before 15.3.06 and plaintiff would return the security amount of Rs. 1,80,000/- within seven days from handing over possession. It is further contended by the defendant that accordingly on 11.03.06 defendant through his attorney Sh. Anil Kumar Dhawan handed over peaceful possession of the rented premises to Sh. Ram Prakash who found it in perfect condition and after checking rented premises Sh. Ram Prakash promised that he would return the balance security amount of Rs. 1,60,000/- to the defendant after deducting Rs. 20,000/- as 10 days rent for March, 2006 out of security deposited of Rs. 1,80,000/-. After lapse of seven days from handing over, the defendant's attorney and other employees requested from Ram Prakash and other co- owners to make the said payment of Rs. 1,60,000/- to which the plaintiff sought time and to the utter surprise of the defendant Sh. Ram Prakash sent a notice dt. 10.4.06 after receiving which the defendant and his employees tried to contact the plaintiff but they refused to talk with them even telephonically.
Suit. No. 731/14 Page No. 17 of 24Vanishree Enterprises V. Anand Gupta On 13th March, 2015
26. Taking the story of plaintiff first, as per plaint defendant vacated at the close of March 2006 and did not pay for the month of March 2006. It is pertinent here to note that no particular date or even week of March 2006 has been disclosed. The present suit was filed on 09.05.2006 and just near about a week ago on 01.05.2006 plaintiff allegedly sent a notice dated 01.05.2006 Ex. PW-1/9 to defendant mentioning the date of handing over the keys as 26.03.2006. Now, while the plaintiff in his said notice alleges that Mr. A. K. Dhawan left the keys at his residence on 26.03.2006 & informed that defendant has vacated the premises, meaning thereby that when plaintiff gives such accurate particulars in his said notice then why the plaint, filed just about a week thereafter, is silent upon such important aspects. Even the legal notice dated 10.04.2006 Ex. PW-1/6 sent by plaintiff to defendant also does not mentions about any date of vacation of premises or handing over of keys.
27. PW-1 Mr. Ram Prakash was also cross-examined on this aspect. In his testimony dated 26.07.2012 PW-1 stated that he does not remember whether he has mentioned in his plaint that on 26.03.2006 keys of the property was handed over to his house in absence. The plaint simply states that defendant vacated the suit premises at the close of March 2006 and therefore the testimony of PW-1 that keys was handed over at his house in his absence is considered beyond pleadings. Even the notice dated 01.05.2006 Ex. PW-1/9 of plaintiff also does not mentions that keys were handed Suit. No. 731/14 Page No. 18 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 over in absence of plaintiff. Furthermore, in the same cross- examination dated 26.07.2012 PW-1 deposed that he cannot say to whom the said keys were handed over and cannot also say whether keys were handed over to his family member or any other person. PW-1 even stated that he does not remember who told him about the handing of keys on 26.03.2006. Thus, the above noted depositions of PW-1 rather makes it difficult to believe upon the story of plaintiff that defendant vacated the premises at the close of March, 2006. Any particular date of vacation of property cannot also be concluded.
28. Now coming to the story of defendant, it is alleged in WS that defendant wanted to quit the premise due to its poor condition & other facilities & therefore on 01.03.2006 he talked with Mr. Ram Prakash whereafter it was agreed that defendant would handover possession of tenanted premises to the plaintiff on or before 15.03.2006.
29. PW-1 has denied this story in his replication & cross-
examination.
30. It is noted that defendant himself did not enter into the witness box to prove this fact. It is not pleaded that the attorney Mr. Anil Kumar Dhawan was also present during the alleged talk/ meeting of 01.03.2006 and therefore whatever has been deposed by Suit. No. 731/14 Page No. 19 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 this attorney, appearing as DW-1, is a derived knowledge and is thus hearsay. The pleading as contained in paras 3-5 reply on merits of WS are also mutually contradictory in terms that at one place it is stated that defendant wanted to quit due to poor condition of premises and at later place it is stated that plaintiff found premises was in perfect condition. When as per defendant the premises was in poor condition then the landlord/ plaintiff cannot be expected to find it in perfect condition.
31. It is also further alleged in the WS that the attorney Mr. Anil Kumar Dhawan handed over possession to Mr. Ram Prakash on 11.03.2006. But in cross-examination DW-1 admitted that there is nothing in writing to the effect that the keys of the premises have been handed over to the plaintiff. DW-1 also stated that he did not take any receipt for handing over the keys. It is here noted that the tenancy was commercial in nature for which even a formal agreement of five years was entered into between the parties & prior to this alleged handed over of keys on 11.03.2006, admittedly there was a letter dated 23.02.2006 Ex. PW-1/2 sent by defendant to plaintiff as a notice for vacating the premises and the plaintiff had also sent its reply dated 02.03.2006 Ex. PW-1/3. Thus, in this circumstance, vacating the tenanted premises by allegedly handing over keys is vital & infact the most important event for which obtaining receipt was obligatory upon the defendant considering the formal relation between the parties. The letters dated 15.04.2006 Suit. No. 731/14 Page No. 20 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 Ex. PW-1/8 and dated 22.03.2006 Ex. PW-1/5 by defendant do not specify any particular date of handing over the keys.
32. Furthermore, in WS it is denied that TDS certificates remained to be given but in cross-examination dated 06.06.2014 DW-1 has deposed to the contrary by admitting that TDS certificates for February & March 2006 remained to be given by defendant to plaintiff. In this regard, reading of further testimony dated 08.08.2014 of this witness DW-1 makes him unreliable as initially he deposed voluntarily that TDS certificates were enclosed along with the letter Ex. PW-1/8 which is a letter dated 15.04.2006 written by this witness only but later DW-1 admitted that he did not hand over TDS certificates to Mr. Ram Prakash on 15.04.2006 along with this letter Ex. PW-1/8.
33. A portion of the testimony dated 08.08.2014 of DW-1 is worth reproducing as under:-
"Q: When did you hand over the physical possession of the premises in question to Mr. Ram Prakash?
A: Mr. Amit Sharma had after showing the suit premises handed over the same to Mr. Ram Prakash and ordered me to hand over the keys to Mr. Ram Prakash."
The answer given to this question is beyond pleadings as nothing of this sort is stated in WS. It is also noted that defendant did not got examined his own said employee Mr. Amit Sharma to prove the vital fact of handing over the possession of premises.
Suit. No. 731/14 Page No. 21 of 24Vanishree Enterprises V. Anand Gupta On 13th March, 2015 Thus, in all, the evidence of DW-1 also does not inspire any confidence.
34. Although both plaintiff & defendant have failed to prove their respective averments regarding vacating of the tenanted premises on a particular date in March 2006, yet there can be no different opinion to the fact that defendant vacated on someday certainly in the month of March, 2006. Bearing that position in mind, the liability of defendant, if any, has now to be ascertained.
35. Initially defendant gave a letter dated 23.02.2006 Ex. PW-1/2 to the plaintiff which mentions that this letter be considered as information for notice period. Plaintiff considers notice period to be 3 months as per leave & license agreement Ex. PW-1/1. But since it has already been held that there was actually a lease between the parties & this agreement is not to be read in evidence by virtue of Section 49 of Registration Act, there remains only a month to month tenancy which requires 15 days notice by either party as stipulated u/s 106 Transfer of Property Act, 1882. The defendant has not been able to dispute that rent use to fall due on 1st of every month. Although there is no date of service of this letter/ notice dated 23.02.2006 Ex. PW-1/2 disclosed by either party, even then calculating 15 days from the date of this notice also, it crosses 1st of March when rent become due for March 2006 & also 5th March 2006 when rent was to be paid.
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36. The purpose of serving prior notice by a tenant is to enable the landlord to search for another tenant within time so that his property may not remain vacant causing him financial loss. Now, in the case in hand, clearly the notice period fell short from the time when the rent became due & payable for the month of March 2006, therefore the defendant has to certainly bear the rent for the entire month of March 2006 and the circumstances do not permit to allow him to pay rent proportionate to his period of occupation of the tenanted premises in the month of March, 2006. Even otherwise that period is also not ascertainable since both parties failed to prove their averments regarding any particular date of vacating the premises, as already observed. The monthly rental of Rs. 60,000/- is not in dispute. Hence, defendant is liable to pay the said amount.
37. As regards the question of refundable security amount of Rs.
1,80,000/- is concerned, the same is a subject matter of another suit filed by the plaintiff for recovery of damages in which a counter claim has also been filed by the defendant.
38. Plaintiff has claimed interest of Rs. 2,000/- calculated @ 20% per annum on the said Rs. 60,000/- from 06.03.06 upto 05.05.06 i.e for two months. The said interest is allowed since the transaction is commercial in nature and moreover, the agreement EX PW 1/1 dt. 27.8.04 stipulates the said rate of 20% per annum which can be read Suit. No. 731/14 Page No. 23 of 24 Vanishree Enterprises V. Anand Gupta On 13th March, 2015 in evidence as it is a collateral purpose in terms of proviso to section 49 of Registration Act, 1908. On similar terms pendentelite and future interest @ 20% per annum is also granted on the said principal amount of Rs. 60,000/-. Issue No. 7 accordingly decided in favour of the plaintiff and against the defendant.
RELIEF In view of the findings on all issues, the present suit is hereby decreed for a sum of Rs. 60,000/- (Rupees Sixty Thousand Only) along with interest of Rs. 2,000/- (Rupees Two Thousand Only) and also pendentelite and future interest @ 20% per annum on the said principal amount of Rs. 60,000/- (Rupees Sixty Thousand Only).
Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in open Court (PRANJAL ANEJA)
on 13.03.2015 CIVIL JUDGE-06, CENTRAL
THC/DELHI/ 13.03.2015
Suit. No. 731/14 Page No. 24 of 24
Vanishree Enterprises V. Anand Gupta On 13th March, 2015