Delhi District Court
S. K. Sharma vs Anita Panikar on 20 March, 2023
IN THE COURT OF DR. HARDEEP KAUR,
ADDITIONAL DISTIRCT JUDGE-04, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
Suit No.CS DJ 761/2019
CNR No. DLST-01-008435-2019
In the matter of:
S. K. Sharma
S/o Mr. Om Dutt Sharma
R/o. B-2/119,
Safdarjung Enclave
New Delhi-110 029 ....Plaintiff
Versus
Anita Panikar
W/o Ranjan Panikar
R/o B-2/119, Ground Floor
Safdarjung Enclave
New Delhi-110 029
Also At:
House No.253, Block-G-2
Opp Bhumia Dev Mandir
Ambedhkar Nagar
Sector-4, Madan Giri
Delhi 110062 ....Defendant.
Date of institution of the suit : 18.12.2019
Arguments heard on : 06.03.2023
Judgment pronounced on : 20.03.2023
SUIT FOR POSSESSION AND FOR RECOVERY OF
ARREARS OF RENT AND UTILITY CHARGES, MESNE
PROFITS AND MANDATORY INJUNCTION
1.The brief facts as stated in the plaint are that plaintiff is the owner of the property bearing No. B-2/119, Safdarjung CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.1 of 17 Enclave, New Delhi-110029 along with entire built-up structure comprising Ground Floor, First Floor and Second Floor with terrace constructed thereupon. Plaintiff along with his wife who are senior citizen and are residing on the first and second floor of the said property. Since the plaintiff is retired, as a source of income, the plaintiff leased out on rent, the ground floor of the property to tenants from time to time. The defendant was introduced to the plaintiff on 01.08.2018 by two property dealers, one Sh. Rahul Mandal and one Sh. Jatinder, who represented the defendant, as a prospective tenant and was in urgent need of residential premises on rent. Based on representations made by the defendant to the plaintiff, on 01.08.2018, the suit property was given on lease by the plaintiff to the defendant on monthly rent of Rs.50,000/- with the understanding that a written lease deed would follow.
2. Pursuant to the agreement between the parties, the defendant took possession of the suit premises consisting of one drawing/dining room, two bedrooms both with attached bath, one pantry, one kitchen, one covered varandah including furniture and fittings, fixtures, electronics etc. as defined in the lease deed dated 03.09.2018 executed between the parties w.e.f 01.08.2018. The said lease deed was for a period of 11 months i.e. for the period w.e.f 01.08.2018 to 30.06.2019 and the rent was fixed at Rs.50,000/- per month. The said lease was extendable only by mutual consent of both parties, with annual increase of 10% on the last year's rent. In terms of the said lease deed, the Lessee CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.2 of 17 was required to pay security deposit of Rs.1,00,000/- equivalent to two months rent, to be adjusted against bill/claims outstanding at the time of final settlement (Clause I). The Lessee was required to pay monthly rent on or before the 7 th of each month, in advance (Clause 2). Additionally, the lessee was obligated to pay the charges for electricity, water and gas charges to the landlord/plaintiff (Clauses 3 &4). The Lessee was also required to keep and maintain the leased premises in good working condition and carry out normal repairs at her own cost as and when required (Clause 6).
3. The defendant at the start of lease period paid security of Rs.1,00,000/- to the plaintiff. During the lease period, till the month of February 2019, the defendant paid rent on time. For the month of March 2019, the defendant paid rent on 28.03.2019. However, the defendant did not pay rent for the months of April and May 2019. Considering the fact that the term of lease was to expire in June 2019, a request was made by the defendant to adjust the rent for two months i.e. April and May 2019 against the security amount of Rs.1,00,000/- paid by her at the start of the lease period with an assurance that rent for June 2019 would be promptly paid by her within the lease period. In view of the fact that the term of the lease was about to expire and the relationship between the plaintiff and defendant was cordial, the request of the defendant was agreed to by the plaintiff.
4. The plaintiff informed the defendant vide his letter dated 15.06.2019 that the lease would not be extended beyond CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.3 of 17 the 1st lease period stipulated in the agreement i.e. 30.06.2019. Accordingly, a request was made to the defendant to vacate the suit premises by 30.06.2019. Further, it was noted in the said letter that the rent and utility charges till May 2019 stand paid by adjusting the said security deposit in lieu of rent for two months and the rent and utility charges for the month of June 2019 were due, which had been promised to be paid within a period of one week. The said letter was hand delivered upon the defendant by the plaintiff and upon reading the same, the defendant assured the plaintiff that she would vacate the suit property by or before 30.06.2019, as requested by the plaintiff.
5. The defendant paid rent for the month of June 2019 alongwith utility charges to the plaintiff on 28.06.2019. However, despite the specific assurance given to the plaintiff, the defendant did not vacate the suit property on or before 30.06.2019 as per the terms of the lease, which was expired on 30.06.2019. Therefore, the defendant had no right to reside in the property beyond 30.06.2019 and stay of the defendant in the suit property after 30.06.2019 would be unauthorized. The defendant did not vacate the suit property and making one excuse or the other. Plaintiff also wrote another letter dated 25.07.2019 to the defendant and hand delivered the same to her. Plaintiff vide the said letter again requested the defendant to vacate the property at the earliest and in any case by 30.07.2019. The defendant was also requested to pay the balance rent for the month of July 2019 i.e. Rs.13,000/- after adjusting the amount of Rs.37,000/- which had been paid by her on 15.07.2019. Additionally, without CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.4 of 17 prejudice to the request made to the defendant to vacate the property, the plaintiff categorically informed the defendant that if she did not vacate the suit property by 31.07.2019, she would be liable to pay enhanced rent @ Rs.55,000/- per month.
6. Despite receipt of the letters dated 15.06.2019 and 25.07.2019 requesting the defendant to handover the physical vacant possession of the suit premises, the defendant failed to vacate the suit premises. At the same time, the defendant also did not make payment of rent for the month of August 2019. After much persuasion and requests on 05.09.2019, the defendant agreed to vacate the suit premises on or before 30.06.2019. Further, towards rent for the month of August 2019, the defendant paid only an amount of Rs.5000/- and assured that the balance amount of rent for the months of August and September 2019 i.e. Rs.95,000/- although at the initial rate of rent would be paid on 10.09.2019 in addition to the electricity charges of Rs.1050/- which were due. To this effect, the defendant also signed on a note dated 05.09.2019. Since the plaintiff was desperately seeking possession of his property for personal use did not dispute the issue of the rate of rent for the time being, under the assurance that possession of the property would be handed over by the defendant to him by 30.09.2019. However, the defendant again back on her assurance and did not vacate the suit property on 30.09.2019. The defendant is currently in arrears of rent for the months of August to December 2019 i.e. five months and has been in illegal occupation of the suit property without payment of rent or utility charges. It is stated CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.5 of 17 that the possession of small bed room at ground floor was given up and handed over by the defendant to the plaintiff on 20.10.2019 and it was agreed that charge for the remaining premises would be reduced by Rs.10,000/- only i.e. Rs.45,000/- w.e.f November 2019 and that the remaining property would be vacated at the earliest.
7. Plaintiff also filed a police complaint dated 07.11.2019 with the SHO P.S Safdarjung Enclave for taking action against the defendant but even the said complaint did not yield any results. Thereafter, defendant turned to her criminal ways against the plaintiff with even greater vigor and plaintiff received a purported legal notice dated 18.11.2019 on behalf of the defendant whereby a completely false, incorrect and baseless case had been made out against the plaintiff in mala fide and mischievous manner that the lease deed was w.e.f 11.08.2018 and it was wrongly mentioned as 01.08.2018, that she had advanced a cash loan of Rs.75,000/- to the plaintiff which had not been paid back by the plaintiff, that possession of one room had been returned by the defendant to the plaintiff in August 2019 and on that count, the rent had purportedly been reduced to half, that the front entrance of the property was locked after September 2019 relegating the defendant to use the side entrance. The aforesaid allegations even on the fact of it cannot be believed as plaintiff's case is that the date of commencement of lease as stated in the lease deed i.e. 01.08.2018 is proper and there is no error in the same. It further states that the term of the lease is for 11 months i.e. 01.08.2018 to 30.06.2019, further clarifying that the lease CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.6 of 17 was to commence on 01.08.2018 itself. The claim of the defendant is evidently an after thought only meant to thwart lawful claims of the plaintiff.
8. The defendant has not denied that the landlord- relationship between the parties was governed by the Lease Deed dated 03.09.2018 but the same was not renewed by the parties. The defendant has no right to stay in the suit premises and is illegal occupant in the premises. Further, without prejudice to the fact that the Lease Deed has expired in any case in terms of clause 11 and 17(i) of the Lease Deed, the lease deed stands terminated by way of letters dated 15.06.2019 and 25.07.2019. Accordingly, the defendant is obligated to hand over vacant physical possession of the entire suit property to the plaintiff forthwith. Further, the defendant is liable to pay rent of Rs.95,000/- for the months of August and September 2019 to the plaintiff; rent of Rs.55,000/- for October and Rs.45,000/- for November to the plaintiff and rent of Rs.22,500/- for half of the month of December i.e. till filing of the suit to the plaintiff. The arrears of rent are in addition to the utility charges, which have not been paid by the defendant to the plaintiff since the month of August 2019. Till the month of November 2019, an amount of about Rs.4500/- is due and payable on this count. The electricity charges of Rs.2710/- is directly attributable to the defendant since the ground floor has a separate electricity connection and billing for the said connection as per utilization of the defendant. Similarly, the gas (IGL) bills for the months of August 2019 to November 2019 amounting to Rs.566/- is due and payable.
CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.7 of 17 Defendant is also liable to pay an amount of Rs.1237/- towards water charges for the months of August to November 2019. Since 30.06.2019, the possession of the suit premises in the hands of defendant became unauthorized, the defendant is liable to pay to the plaintiff an amount of Rs.3000/- per day in terms of clause 19 of the lease deed towards occupation charges. Hence, the plaintiff has filed the present suit.
9. Written statement was filed on behalf of defendant stating that the lease deed is not sufficiently stamped under the Indian Stamp Act, 1899. The suit is barred by the provisions of the Commercial Court Act, 2015. The lease agreement was executed on 03.09.2018 wherein the date of commencement of the lease was wrongly mentioned as 01.08.2018 instead of 11.08.2018. As per clause 20 of the lease deed the plaintiff has to refund the security deposit to the defendant at the expiry/termination of the lease and in case of failure, the defendant will have the right to withhold the possession of the suit property without paying any rent till the time the said deposit is not refunded. The plaintiff has not refunded the security deposit. It is stated that the defendant had regularly paid the rent to the plaintiff. The payment of the rent was made in cash and no proof of acknowledgment, receipt or rent receipt was issued by the plaintiff at any point of time and plaintiff had not provided the actual bills of electricity, water and gas connection and had always given handwritten information for making payment, which was objected by the plaintiff. The plaintiff assured the defendant to settle the same at the time of vacation of the said CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.8 of 17 property. Though all the dues are duly paid by the defendant. The plaintiff has not issued any legal notice of termination of the tenancy under Section 106 of the Transfer of Property Act.
10. In the Replication, the plaintiff has denied the contents of the Written Statement. Plaintiff has reiterated & reaffirmed the contents of the plaint.
11. It is pertinent to mention here that plaintiff has filed an application under Order XII Rule 6 CPC. Vide order dated 08.01.2021, the aforesaid application under Order XII Rule 6 CPC was allowed and consequently, suit of the plaintiff was decreed for the possession of the suit property directing the defendant to vacate the suit property and handover the same to the plaintiff. The defendant has challenged the aforesaid order before the Hon'ble High Court vide RFA 83/2021, CM APPLs 5786-87/2021. Vide order dated 15.02.2021 Hon'ble High Court of Delhi directed the defendant to hand over the possession of the suit property to the plaintiff on or before 08.03.2021. Pursuant to the aforesaid order, the defendant has handed over the vacant and physical possession of the suit premises to the defendant on 08.03.2021.
12. It is further pertinent to mention here that plaintiff has also filed an application under Order XV-A read with Section 151 CPC. Vide order dated 01.06.2022, the aforesaid application was allowed. However, defendant has not complied with the said order and accordingly, vide order dated 02.12.2022, the defense CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.9 of 17 of the defendant was struck off.
13. From the pleadings of the parties, the following issues were framed on 02.12.2022.
ISSUES:
1. Whether the plaintiff is entitled for decree of arrears of rent along with interest as prayed for? OPP
2. Whether the plaintiff is entitled for decree of mesne profit along with interest as prayed for? OPP
3. Whether the plaintiff is entitled for decree of utility / consumption charges, LPG Charges as prayed for? OPP
4. Relief.
14. In support of his case, plaintiff examined himself as PW-1. PW-1/plaintiff reiterated the contents of plaint in his affidavit by way of evidence Ex. PW1/A and relied upon following documents :-
1. Copy of Lease Deed dated 03.09.2018 is Ex.PW1/1 (OS&R);
2. The handwritten letters dated 15.06.2019 and 25.07.2019 are Ex.PW1/2 & Ex.PW1/3, respectively.
The originals of these letters are in power and possession of the defendant since the said letters were delivered by hand to the defendant. The copies on record are office copies and are exact replica of the original created by a mechanical process which ensures the accuracy of the copy;
3. Acknowledgement Note dated 05.09.2019 is Ex.PW1/4 (OS&R);
4. The news article exhibited in my evidence by way of affidavit as Ex.PW1/5 is deexhibited and marked as Mark A;
5. Copy of police complaint dated 07.11.2019 is CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.10 of 17 Ex.PW1/6 (OS&R);
6. The electricity bills due on 04.09.2019, 04.10.2019 and 04.11.2019 are Ex. PW1/7 (Colly) (OS&R);
7. Copy of bill of PNG connection exhibited in my evidence by way of affidavit as Ex.PW1/8 is de exhibited and marked as Mark B;
8. The water bills with K.No.6981741000, 6981741000 and K.No.2702741000 and the corresponding receipts of payments are Ex.PW1/9 (OS&R);
9. Site plan for the suit property, which he has prepared in his own hand, which is Ex.PW1/10;
He also rely on the certified copy of order dated 15.02.2021 passed by the Hon'ble High Court of Delhi in RFA No.83/2021, titled as 'Anita Panikar vs S.K. Sharma'.
15. No other witness was examined by the plaintiff in support of his case and PE was closed vide order dated 23.02.2023.
16. This court has heard the arguments of counsel for plaintiff. Despite opportunity being given the defendant has failed to address the arguments. Record perused carefully.
17. Issue-wise findings are as under:
ISSUES No.1, 2 & 3:
a). These issues are interconnected, hence, taken together.
Onus to prove these issues was on the plaintiff. Plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He deposed that he let out the suit premises to the defendant vide Lease Deed dated 03.09.2018 Ex.PW1/1 entered into by the plaintiff and defendant for a period of 11 CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.11 of 17 months w.e.f. 01.08.2018 @ Rs.50,000/- per month. Lease was extendable only on mutual consent of both parties with annual increase of 10% on the last year's rent. It was quite clear that if the lease was not extended by the plaintiff then automatically the lease would have expired on 30.06.2019. As per the terms of the lease, defendant occupied one drawing/Dining Room, 2 bed rooms both with attached bath, one pantry, one kitchen, one covered verandah including furniture, fittings and fixtures, electronics etc.
b). He further deposed that defendant was also required to pay security deposit of Rs. 1,00,000/- (equivalent to 2 months rent) which was to be adjusted against bills/ claims outstanding at the time of final settlement. Once the lease period began, defendant paid security amount of Rs. 1,00,000/- and made regular payments of rent till about February 2019. However, defendant defaulted in payment of rent of March 2019 and paid on 28.03.2019 instead of paying on the 7th day of the month. Plaintiff did not create an issue over the delayed payment however defendant then defaulted in making payment of rents for the months of April and May 2019. Considering the fact that the lease was about to expire on 30.06.2019, defendant requested that the rent of April and May 2019 be adjusted against the security amount of Rs.1,00,000/-. Accordingly security amount of Rs. 1,00,000/- was adjusted against rent for the months of April and May 2019.
c). He further deposed that he was not of the opinion of extending the lease premises for the reason that his daughter was CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.12 of 17 diagnosed with a cyst/ fibroid in her uterus with heavy bleeding in her stomach for which she was likely to be operated upon in the immediate future, and since the said medical procedure was to take place in Delhi and she would have required the Ground Floor of the property (i.e. suit property). He communicated to the defendant by way of a hand-written letter dated 15.06.2019 that the lease would not be extended beyond the agreed term as per agreement dated 03.09.2018. He had also mentioned that the utility charges till the month of May 2019 stood paid by the defendant however the defendant was yet to make the payment for utility charges for the month of June 2019 and requested the defendant to vacate the suit property by 30.06.2019. Defendant assured that she would vacate the property on the agreed date and promised to clear the rent and utility charges within a week's time. Defendant took some time but cleared the utility charges and rent payment for June 2019 on 28.06.2019. However, despite giving an assurance that the property would be vacated and the fact that the lease stood terminated on 30.06.2019, the property was not vacated by the defendant on the agreed date. Making one excuse or the other, the defendant continued in possession of the property.
d). He further deposed that defendant paid Rs. 37,000/- to the plaintiff as part payment of rent for the month of July 2019. He sent defendant another handwritten letter dated 25.07.2019 communicating that he needed the property urgently for his daughter and again requested her to vacate the suit property by 30.07.2019. He further communicated that she would have to pay CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.13 of 17 Rs.13,000/- more for the time that she had illegally overstayed in the subject property after adjusting Rs. 37,000/- paid by Defendant on 15.07.2019. Defendant did not vacate the suit property then she would be liable to pay Rs.55,000/- per month as rent. Defendant continued in possession without even paying rent for the month of August 2019. For the month of August 2019, the defendant only paid Rs. 5,000/- as rent. On 05.09.2019 defendant finally agreed to vacate the suit property and assured that she would vacate the property by 30.09.2019. Defendant had to pay Rs.95,000/- as rent for the months August and September 2019 at the same rate of Rs. 50,000/- per month (after deducting Rs. 5,000/- she had already paid) along with electricity charges to the tune of Rs. 1050/-.
e). He further deposed that defendant again defaulted on her promise and did not vacate the property as promised on 30.09.2019. Defendant tried to brush the issue aside and gave up one small bed-room on 20.10.2019. The possession of the same was immediately taken by the plaintiff as the plaintiff had no other option in his hands. It was agreed that rent for the remaining premises would be reduced by Rs. 10,000/- only i.e. Rs. 45,000/- w.e.f. November 2019 and that the remaining property would be vacated at the earliest.
f). He further deposed that defendant is liable to pay rent of Rs. 95,000/- for the months of August and September 2019 to the Plaintiff; rent of Rs.55,000/- for October, 2019 and Rs.45,000/- for November, 2019 to the Plaintiff and rent of Rs.22,500/- for half of the month of December i.e. till filing of CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.14 of 17 the suit to the Plaintiff. Additionally, plaintiff is entitled to and claims mesne profits/ damages at the rate of Rs.3000/- per day from the filing of the present suit till the actual handing over of physical possession of the suit property to the Plaintiff in terms of the specific provisions of the lease deed i.e. for the period 16.12.2019 till 08.03.2021 i.e. amount of Rs.13,44,000/-. He further deposed that arrears of rent are in addition to utility charges which have not been paid by the defendant to the plaintiff since the month of November 2019, an amount of about Rs.4500/- is due and payable on this account. Therefore, total amount payable towards utilities is Rs. 4,500/- for the months of August 2019 till December 2019 Ex.PW1/7 to Ex.PW1/9.
g). Record shows that defence of defendant was struck off vide order dated 02.12.2022 and defendant did not come forward to cross-examine PW1.
h). Record further shows that Lease Deed dated 03.09.2018 executed between the parties for a period of 11 months @ Rs.50,000/- per month for the period from 01.08.2018 to 30.06.2019. As Lease Deed was determined due to efflux of time on 30.06.2019. Thereafter, since July, 2019 tenancy had become month-to-month basis. Therefore, terms and conditions of Lease Deed dated 03.09.2018 are not applicable on the parties.
i). Record further shows that plaintiff had adjusted Rs.1,00,000/- security amount deposited by the defendant against the rent for the month of April, 2019 and May, 2019. It is admitted that defendant paid the rent @ Rs.50,000/- till July, 2019/- after that possession of small bed room at ground floor CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.15 of 17 was given up and handed over by the defendant to the plaintiff on 20.10.2019 and it was agreed that charge for the remaining premises would be reduced by Rs.10,000/- only i.e. Rs.45,000/- w.e.f. November 2019. Therefore, since July, 2019 till possession of the suit property i.e. 08.03.2021 tenancy was on month-to- month basis. Record further shows that on 08.03.2021 defendant has handed over the suit property to plaintiff in compliance of order dated 15.02.2021 of Hon'ble High Court of Delhi vide RFA 83/2021, CM APPLs 5786-87/2021.
j). Record further shows that defendant has not paid rent to the plaintiff since August, 2019 till 08th March, 2021. It is admitted fact that since August, 2019 till October, 2019 rate of rent for the suit property was Rs.50,000/- per month and w.e.f. November, 2019 rate of rent of suit property was reduced from Rs.50,000/- to Rs.45,000/- till 08.03.2021. Therefore, plaintiff is entitled for Rs.2,20,500/- towards arrears of rent and Rs.6,69,000/- towards mesne profit and further entitled for an amount of Rs.4500/- towards utilities charges.
k). In view of the aforesaid discussion, issue no.1, 2 & 3 are decided in favour of plaintiff and against the defendant.
RELIEF In view of the fact that all issues are decided in favour of the plaintiff, plaintiff is entitled for decree of Rs.8,89,500/- towards arrears of rent and mesne profit along with interest @ 6% per annum from filing of the suit till realization of the amount and further entitled for an amount of Rs.4500/- towards CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.16 of 17 utilities charges.
Cost of the suit is awarded in favour of the plaintiff. Decree sheet be prepared accordingly on filing of deficient Court fee, if any.
File be consigned to the Record Room.
Typed to the dictation directly, corrected and pronounced in the open Court on 20.03.2023.
(Dr. Hardeep Kaur) Additional District Judge-04 South District, Saket Courts, New Delhi.
CS DJ 761/19 S. K. Sharma Vs. Anita Parikar Page No.17 of 17