Delhi District Court
Mrs. Daya Arora vs M/S Peerless General Finance & on 9 October, 2018
IN THE COURT OF MS. RICHA SHARMA,
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI.
CS SCJ No. 12683/16
Date of Institution : 17.12.2007
Date of reservation of judgment : 29.09.2018
Date of pronouncement of Judgment : 09.10.2018
Mrs. Daya Arora,
W/o Late Mr. L. N. Arora,
R/o 15/62, Punjabi Bagh (West)
New Delhi - 110 026
.................Plaintiff
vs.
M/s Peerless General Finance &
Investment Co. Ltd.
Flat No. 210, IInd Floor,
Vishwadeep Tower, Plot No. 4,
District Centre, Janakpuri,
NewDelhi - 110 058
..............Defendant
SUIT FOR POSSESSION AND FOR RECOVERY
OF Rs. 38,990/ AS DAMAGES
J u d g m e n t
1.Vide this judgment, I shall dispose of the present suit for possession and recovery of damages filed by the plaintiff against the defendant. Before adjudicating the issues framed in the present suit, this court deems it fit to dwell upon the plethora of pleadings in the present suit.
CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 1 Of 33
2. Brief facts of the present are case that the plaintiff is owner of property/flat bearing no. 210, measuring 557 square feet situated in Vishwadeep Tower, Plot No.4, District Centre, Janak Puri, New Delhi58 ( hereinafter referred to as suit property). Defendant was in need of accommodation and so he took the suit property from the plaintiff for a fixed period of three years by means of registered lease deed dated 22.10.2001, effective from 01.10.2001, thereby expiring on 30.09.2004, at a monthly rent of Rs. 8,355/ p.m besides electricity, water and maintenance charges.
3. As per the terms of lease, after expiry of three years, fresh lease deed could be executed, only if the lessee, so desired/agreed in writing, at least two months before the expiry of lease. However, neither the fresh lease deed was executed nor any request was received from defendant for extension of the same. Hence the lease expired automatically. The tenancy of defendant started from 1st day of each English calender month, thereby ending on the last day of same month. Defendant had requested for some time to vacate the premises and assured plaintiff that they will vacate the premises very soon as they will hire another premises. Plaintiff accepted the request of defendant as monthly tenant for some time and accepted enhanced rent @ Rs.10,026/ p.m. However, defendant postponed the matter on one pretext or the other. Hence the plaintiff terminated the contractual tenancy of defendant vide notice dated 29.09.2007, but the defendant failed to vacate the premises. It is further the case of the plaintiff that the market rate of the property CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 2 Of 33 is Rs. 70/ per square feet per month as the same rent is prevalent in the market. It is further averred that plaintiff is entitled to the damages @ Rs. 70/ per square feet per month w.e.f. 01.11.2007 to 30.11.2007. Accordingly, the plaintiff preferred the present suit before this court.
4. Written statement was filed on behalf of defendant wherein, it is stated that the suit is not maintainable and is liable to be dismissed. It is averred that plaintiff has no locus standi to file the present suit. The present suit is not maintainable as the same is barred under the provisions of Sec. 50 of Delhi Rent Control Act. The suit is not maintainable as the same has not been properly valued for the purpose of court fees and jurisdiction. It is further stated that the plaintiff is neither the owner nor the landlord of suit property. It is averred that, said lease deed it was specifically stated in clause III (1), that the option to get the lease deed renewed lies with the defendant on enhanced rate of rent @ 20 % and accordingly, the defendant had exercised the option and the lease was extended from 01.10.2004 to 30.09.2007, on payment of enhanced rate @ 20% i.e. Rs.10,026/ as per said lease deed. Thereafter, as per said lease deed, the defendant again exercised the option of renewal by giving letter in writing and got the lease deed extended from 01.10.2007 to 30.09.2010, on the payment of further enhanced rent @ 20 % i.e., Rs.12,031/w.e.f. 01.10.2007. Defendant states that he had already exercised the option to get the lease extended from 01.10.2007 to 30.09.2010. The plaintiff has accepted the said renewal and accepted the enhanced rent also. It is averred that the execution of CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 3 Of 33 fresh lease deed was not mentioned in the said lease deed on renewal. In fact, the defendant has been and still willing to execute lease deed. In any case, the lease deed stands extended. It is stated that the lease was extended from time to time as per terms and conditions on enhanced rate of rent and defendant has been making payment on terms of extended lease. In rest of the written statement, the averments made in plaint were denied and prayer is made for dismissal of the suit.
5. Replication was also filed by the plaintiff wherein the averments made in written statement by the defendant were denied.
6. It is pertinent to mention here that initially following issues were framed vide order dated 05.07.2010:
1. Whether the plaintiff has no locus standi to file the present suit? OPD.
2. Whether the suit is hit by the Section 50 of the DRC Act?
OPD
3. Whether the suit is valued properly and the sufficient court fees has been affixed therein? OPP.
4. Whether the suit is premature, if so, its effects? OPD.
5. Whether the plaintiff is entitled to a decree for possession against the defendant as prayed for? OPP.
6. Whether the plaintiff is entitled to a decree for a sum of Rs.38,990 against the defendant as prayed for ? OPP
7. Whether the plaintiff is entitled to interest, if yes, at what rate CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 4 Of 33 and for which period? OPP.
8. Relief.
7. Thereafter, the parties settled their dispute with regard to the possession of the suit property before the Mediation Cell on 19.12.2012 and subsequently keys of the suit property were handed over to the attorney of plaintiff (in the court). Thus, the issues left to be adjudged in the present case is with respect to the damages/arrears of rent, if any. Hence, amended issues were framed vide order dated 15.01.2013, which were as under :
1. Whether the plaintiff is entitled to the relief of money decree of Rs. 38,990/ as prayed for in prayer clause B of the plaint ? OPP
2. Whether the plaintiff is entitled to relief of pendent lite and future damages as prayed for in prayer clause C of the plaint, if so, at what rate and for which period ? OPP
3. Whether the plaintiff is entitled to relief of pendente lite and future interest as prayed for in prayer clause C of the plaint, if so, at what rate and for which period ? OPP
4. Any other relief.
8. In order to prove her case, plaintiff examined 5 witnesses. Plaintiff examined herself as PW1 and tendered in evidence her duly sworn in affidavit which is exhibited as Ex.PW1/A, reiterating the contents CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 5 Of 33 of the plaint. In her testimony, following documents were exhibited : Sr. No. Nature of documents Exhibited as 1 Title documents comprising of flat buyer's Ex.PW1/1 agreement dated 14.09.1996. (colly.) 2 Letter dated 17.08.2006 Ex.PW1/3 3 Notice dated 29.09.2007. Ex.PW1/4 4 The postal receipt Ex.PW1/5 5 The letter dated 21.05.2012. Ex.PW1/7 6 Lease deed dated 06.02.2009 executed between Ex.PW1/11 Smt. Alka Arora and Mr. Virender Kumar.
7 Lease Deed dated 22.10.2001, executed between Mark A Smt. Daya Arora Vs. M/s Peerless General Finance & Investment Company Ltd.
8 Layout plan of entire second floor of building Mark B. 'vishwadeep tower' 9 Photographs of the premises showing damages by Mark C. defendant 10 (i) Lease deed dated 12.04.2010 between Sh. Vijay Mark E Kawatra and Smt. Meenu Kawatra and M/s (colly) Destination Resorts India Pvt. Ltd.
(ii) Deed of lease dated 02.11.2007, executed between Mrs. Manorama Gandhi and Tecpro Systems Ltd.
(iii) Lease deed dated 04.02.2008 between Sh.
Bhagwan Dass Chandna and M/s Edge Entertainment Ltd.
11 Lease deed dated 01.07.2008 between Mrs. Meenu Mark F Grover and M/s Taj Milk Foods (Pvt.) Ltd 12 Deed of lease dated 03.12.2007 between Mrs. Mark G Pushpa Soni, Mr. Rajesh Soni, Mrs. Neeru Soni and Ms. Abhinandan Soni and Artefact Projects Ltd.
13 Lease deed dated 24.01.2008 Kamlesh Kapoor Mark H and Maxxfun Holidays Pvt. Ltd.
14 Lease Deed dated 03.12.2007, between Sh. Mr. Mark I Amandeep Soni, M/s Gayatri Associates and M/s CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 6 Of 33 Aman Properties and Artefact Projects Ltd.
PW1 was cross examined and discharged.
9. Plaintiff also examined Sh. Praveen Arora as PW2, Smt. Alka Arora as PW3, Sh. Rajinder Prasad as PW4, Smt. Manorama Gandhi as PW6 and they tendered in their evidence their duly sworn in affidavits which are exhibited as Ex.PW2/A, Ex.PW3/A and Ex.PW6/A, respectively. Plaintiff also examined one Sh. Affak Ahmed as PW5, i.e., Record Keeper, Office of Sub Registrar - II B, Janakpuri, New Delhi, who brought the relevant record containing the lease deed executed between one Smt. Manorama Gandhi and Tecpro Systems Ltd. registered vide registration number 21598 on 02.11.2007, pages No. 105 to 116. PW5 also brought the lease deed executed between Smt. Alka Arora and Sh. Virender Kumar registered vide registration No.1900 dated 06.02.009, page No. 42 to 46 and the lease deed executed between Sh. Bhagwan Dass Chandana and M/s Edge Entertainment Ltd. registered vide registration No. 2552 on 05.02.2008, page No. 70 to
80. The copies of the lease deeds executed between Smt. Manorama Gandhi and Tecpro Systems Ltd. as well as between Sh. Bhagwan Dass Chandana and M/s Edge Entertainment Ltd. are marked as Mark E (colly.) and the copy of the lease deed executed between Smt. Alka Arora and Sh. Virender Kumar is exhibited as Ex.PW1/11. All the plaintiff's witnesses were duly cross examined and discharged.
10.Thereafter, matter was listed for defendant's evidence. In order to CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 7 Of 33 prove its case, defendant got examined Sh. Kuldeep Sharma as DW 1, who tendered in evidence his duly sworn in affidavit which is exhibited as Ex.DW1/A, reiterating the contents of the written statement. In his testimony, following documents were duly exhibited: Sr. Nature of documents Exhibited as No. 1 Copy of ID Card of DW1. Ex.DW1/1 2 Copy of letter dated 06.08.2007 Mark F 3 Copy of letter for payment of rent of December, 2007. Mark A 4 The copy of letter for payment of rent for January, Mark B. 2008 5 Legal notice dated 31.07.2012 Ex.DW1/5 6 Postal receipt, courier receipt and AD card resp. Ex.DW1/6 to Ex.DW1/8 7 Copies of letters dated 25.08.2006, 05.11.2004 and Mark C to 09.11.2004 Mark E. 8 Legal notice dated 21.10.2016 to the plaintiff under Ex.DW1/12 Order 12 rule 8 CPC and its postal receipt and Ex.DW1/13 DW1 was cross examined at length and discharged.
11. I have heard the arguments advanced by Ld. counsels as well as perused the evidence on record minutely. My issuewise findings are as under :
ISSUE Nos. 1 to 3.
1. Whether the plaintiff is entitled to the relief of money decree of Rs. 38,990/ as prayed for in prayer clause B of the plaint ? OPP
2. Whether the plaintiff is entitled to relief of pendent lite and future damages as prayed for in prayer clause C of the plaint, CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 8 Of 33 if so, at what rate and for which period ? OPP
3. Whether the plaintiff is entitled to relief of pendente lite and future interest as prayed for in prayer clause C of the plaint, if so, at what rate and for which period ? OPP
12. The onus to prove all the above issues was upon the plaintiff. As already mentioned above, the primary relief of possession duly stood satisfied vide a mediation settlement arrived at between the parties. The copy of the mediation order dated 19.12.2012, is also placed on record of this court. As per the said order, it was agreed between the parties that the plaintiffs shall take single key of possession of the suit property from the court on 20.12.2012. As per the ordersheet dated 20.12.2012, the keys deposited by the defendant with the court was duly given to the attorney of the plaintiff after due compliance, implying thereby that the relief of possession was duly satisfied in accordance with the mediation order.
13. Thus, the principal reliefs now left to be adjudged by this court are reliefs Nos. 2 and 3.
14. Most fundamental and pivotal averments of the plaintiff forming the edifice and the crux of the present case is that plaintiff is the owner of the property bearing No.210, measuring 557 square feet situated in Vishwadeep Tower, Plot No. 4, District Centre, Janakpuri, New Delhi and the aforesaid suit property was given to the defendant for a fixed period of three years by means of registered lease deed dated CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 9 Of 33 22.10.2001, effective from 01.10.2001 and expiring on 30.09.2004, at a monthly rent of Rs. 8,355/ per month besides electricity, water and maintenance charges. The said lease deed is duly placed on the record of the court and is marked as Mark A. The factum of the lease deed being executed between the plaintiff and the defendant is not disputed by the defendant and mark A is duly admitted and relied upon by the defendant as well. It is noteworthy to mention that as per the averments of the plaintiff, the term of the lease was to expire after three years, but the lease deed contained a renewal clause as per which only if the lessee, so desired / agreed in writing, at least two months before the expiry of the lease, the said lease could be renewed for a period of another three years. As per the plaintiff's averment, the lease deed was not renewed after 30.09.2004 and defendant was asked to evict the suit premises. It is further averred by the plaintiff that defendant sought time and on their request, time was given and therefore, post 30.09.2004 i.e. after the termination of the lease deed by a efflux of time, tenancy culminated into month to month tenancy. Plaintiff further avers that the defendant continued to pay rent at an enhanced rate of Rs.10,026/ per month after 30.09.2004 till the service of the notice of termination of the tenancy by the plaintiff to the defendant on 29.09.2007. Plaintiff has avouched that the legal notice dated 29.09.2007, was duly served upon the defendant, therefore, the possession of the defendant post the service of the legal notice is unauthorized and on this basis, plaintiff has sought for the damages on account of the unauthorized possession of the defendant.
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15. Per contra, it is averred by the defendant that the lease deed in the first place was executed for a period of 9 years and therefore, the question of termination of tenancy of the defendant by the plaintiff, by virtue of a legal notice does not arise in the first place. Therefore, in order to arrive at the conclusion as to, whether the tenancy was terminated by a efflux of time, it is paramount to analyse the terms of the lease deed in the first place. Before moving ahead, it is apropos to state that the existence of relationship of landlord and tenant between the parties is not disputed and the execution of the registered lease deed dated 22.10.2001, is duly admitted by the defendant. As per part (iii) of the lease deed consisting of mutually agreed terms, it is categorically mentioned in the document mark A that "the said lease shall be for three years i.e. from 01.10.2001 to 30.09.2004, and can be renewed after the expiry of three years for another period of three years only if the lessee so desire / agree in writing two months before the expiry of the lease. After an initial period of three years, the lessee has to vacate the premises by handing over the peaceful vacant possession to the lesser. The lessee can opt for renewal of lease for a further period of three years by giving advance notice of two months for renewal the lease. The renewal if the lessee so desires shall be subject to increase of rent by 20%. So after the expiry of three years i.e. w.e.f. 01.10.2004 the monthly rent shall be 10,026/ per month for further period of three years i.e. from 01.10.2004 upto 30.09.2007. Further renewal of lease for a period of three years i.e. from 01.10.2007 to 30.09.2010, shall be at the desire of the lessee and subject to a further increase in rent by 20% of the last paid rent CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 11 Of 33 if advance notice of the two month's to renew the lease is given before the expiry of the lease, so for the period of 01.10.2007 to 30.09.2010 the lessee shall pay monthly rent of Rs. 12,031.20"
16. Thus, from the above reproduced extract of the lease deed, it can be categorically stated that the terms of the lease were absolutely clear, cogent and unambiguous. Initially, the lease was executed for a period of three years starting from 01.10.2001 to 30.09.2004 and pursuant to that an option for renewal though was given to the lessee, but the same was subject to certain riders. The first rider in further renewal of the lease deed was that the lessee had to agree in writing for the renewal of the lease for subsequent period of three years and secondly, the lessee was required to give an advance notice of two months to renew the said lease. It is the case of the plaintiff that post 30.09.2004, the lease deed was not renewed as neither any desire was expressed by the lessee in writing nor was any notice sent to the plaintiff by the defendant for renewal of the lease two months prior to the expiry of the lease and in this eventuality, the lease was terminated by the efflux of time and post 30.09.2004, till the service of the legal notice by the plaintiff upon the defendant for termination of tenancy, the tenancy was on months to months basis. Therefore, from the above terms of lease a logical corollary that can be culled out is that, the onus was upon the defendant to show that prior to the expiry of the terms of the lease on 30.09.2004, a two month's advance notice was served by the defendant upon the plaintiff for the renewal of the said lease deed. Though, an averment is made by the defendant to the effect CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 12 Of 33 that the legal notice was duly served, but no document is placed on record to show that any legal notice was served two month's prior to the expiration of the lease on 30.09.2004. Thus, the averment of the defendant qua the renewal of the lease deed for the second term is merely bald and unsubstantiated by any cogent documentary evidence. Further, it is averred by the defendant that a letter dated 06.08.2007, was duly served upon the plaintiff, by virtue of which the defendant had exercised the option of renewal of lease for a period from 01.10.2007 to 30.09.2010. However, neither defendant has placed on record any original letter nor they have placed any proof of its dispatch or receipt, by virtue of which it can be inferred that the said letter was duly delivered upon the plaintiff. The letter placed on record of the court by the defendant is only a photocopy of a letter dated 06.08.2007, and therefore, the said document does not fulfill the criteria embodied u/s 65 of the Indian Evidence Act. Further, court cannot lose site of the terms embodied in the lease deed, which categorically provides that the letter of renewal ought to have been served by the defendant upon the plaintiff at least two months in advance of the expiry of the lease by efflux of time, implying thereby that the lease expired by efflux of time on 30.09.2004 and thereafter, no letter regarding the renewal of lease is placed on record by the defendant and the only letter placed on record is with respect to the photocopy of the alleged letter dated 06.08.2007. Therefore, even if the version of the defendant is taken to be a gospel truth and it is believed that the letter dated 06.08.2007, was actually delivered by the defendant to the plaintiff for exercise of the option by the defendant for the renewal of the CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 13 Of 33 lease for the period 01.10.2007 to 30.09.2010, then also the said option could have been exercised by the defendant latest by giving advance notice of two month's i.e. by 31.07.2007 for the period 01.10.2007 to 30.09.2010, but even in this regard the letter dated 06.08.2007, is extremely belated and the tenancy was not renewed in accordance with the terms embodied under the lease deed marked as mark A. Thus, it can safely be deciphered that the tenancy of the defendant did not stand renewed for the period 01.10.2007 to 30.09.2010.
17. It is apposite to mention that the plaintiff had duly served a legal notice dated 29.09.2007, thereby terminating the tenancy of the defendant w.e.f. 30.09.2007. The defendant, though had denied the receipt of the legal notice, however, the sending of the legal notice at the address of the defendant is duly proved by the plaintiff by placing the postal receipt pertaining to the same on record of this court. The postal receipt is exhibited as Ex. PW1/5 and the legal notice dated 29.09.2007 is exhibited as Ex. PW1/4.
18. At this stage, court deems it fit to discuss the law regarding the legal notice and its service. It has been held by the Hon'ble Supreme Court in judgment titled as "Abdul Gaffar vs. DDA" 2001 Rajdhani Law Reporter 249 that, if a legal notice is given by a party, the same is not replied and contents not denied then, silence of the notice raises presumption against him. Another judgment of Hon'ble High Court titled as Kalu Ram v Sita Ram 1980 Rajdhani CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 14 Of 33 Law Reporter (Note) 44 is on the same aspect.
19. At this stage, it is also pertinent to mention Section 27 of the General Clauses Act :
"Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or "given" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
20. The Hon'ble Apex Court in the case of K.Bhaskaran vs Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510 observed as under :
"The principle incorporated in Section 27 of the General Clauses Act could profitably be imported in a case where the sender had dispatched the notice by post with the direct address written on it. Then it can be deemed to have been served on the addressee, unless he proves that it was not really served and he was not responsible for such nonservice. These were the observations of the Hon'ble Supreme Court while dealing with a case relating to service of notice U/s 138 of NI Act."
21. In light of the law as above and the same read conjointly with section 114 clause (f) of the Indian Evidence Act, 1872, it can be categorically stated that, the legal notice was duly served upon the defendant and silence to this same results in raising of an adverse inference against the defendant.
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22. Even otherwise, law is very clear that plaint in itself can be termed as notice to the opposite party. At this stage, court deems it fit to state that in case titled as "Jeevan Diesels Vs. Electricals Limited Vs. M/s. Jasbir Singh Chanda (HUF) and Anr., published in 183 (2011) DLT 712, it has been held that the plaint itself can be taken as notice of tenancy. Therefore, in the light of the law discussed as above, it can be safely held that the tenancy of the defendant duly stood terminated by virtue of the legal notice dated 29.09.2007 and post 29.09.2007, the possession of the defendant upon the suit property was that of an unauthorized occupants.
23. Another leg of argument adopted by the Ld. counsel for the defendant was that since admittedly, the plaintiff was accepting enhanced rate of rent, the lease deed automatically stood renewed and therefore, the possession of the defendant was not unauthorized on account of the acceptance of the enhanced rate of rent by the plaintiff. It is a settled proposition of law that where the terms of any contract grant or disposition property are reduced in writing then such writing will have a superseding effect over the oral averments. The said law is duly contained in section 91 of the Indian Evidence Act, 1872 and only rider to the same is the proviso to Section 92 of the Indian Evidence Act. The law entailed u/s 91 and 92 of the Indian Evidence Act is reproduced as below: Section 91 of the Indian Evidence Act provides that, "when terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 16 Of 33 required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained".
24. Thus, on the basis of the above codified law, it is explicit that no oral evidence can be given of any term of an agreement otherwise than explicitly permitted by law. Therefore, in light of the written agreement of tenancy between the plaintiff and the defendant, defendant was explicitly barred by provision of Section 91 to lead any evidence with respect to the terms embodied in the rent agreement unless the same is permitted as per proviso to Section 92 of the Indian Evidence Act, 1872 but even to that extent no evidence has been lead by the defendant to enable him to establish his case.
Section 92 of Indian Evidence Act, 1872 provides that, "when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section (Section 91) no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:"
25. The said Section is appended with 6 provisos enunciating the circumstances in which oral evidence/agreement are permitted. However, the circumstances stated in these 6 proviso's appended to Section 92 of the Indian Evidence Act, 1872 for adducing oral CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 17 Of 33 evidence/agreement, having an over riding effect on the written agreement i.e., Ex.PW1/5 are not made out.
26. In the light of the law reproduced as above, the only document by virtue of which the parties were bound is the lease agreement marked as Mark A and as per the said agreement the lease could be renewed only by virtue of a two month's prior notice in writing given by the defendant to the plaintiff and the same has not been proved by the defendant in the present case. In these circumstances, merely, by accepting the rent at an enhanced rate of 20%, the tenancy between the plaintiff and the defendant did not stand renewed as the terms of the lease deed were not complied with by the defendant. Further, the lease deed initially executed between the parties was a registered lease deed and it is a well settled law that a registered document can be renewed only through another registered document and merely by acceptance of enhanced rent, the lease cannot automatically be reduced or extended and in this eventuality, tenancy between the plaintiff and the defendant was reduced into a month to month tenancy post 30.09.2004 and prior to the service of notice of termination on 29.09.2007.
27. Thus, from the above discussion, it can be safely culled out that vide the legal notice of termination of the tenancy of the defendant, the same stood terminated and the defendant was in unauthorized occupation of the suit property. This fact further stands testified as defendant has miserably failed to prove that the lease deed was renewed in accordance with the terms and conditions embodied in CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 18 Of 33 document Mark A, conjointly relied by both the parties.
28. The above contentions further seek reliance from the judgment titled as Shukla Malhotra Vs. Vyasa Bank (1988 Rajdhani Law Reporter 343), wherein it was held that: "Para 6: The exercise of option by the defendant for renewal in 1985 and 1990 or later did not ipso facto extend the term of lease beyond one year. As best it only entitled the lessee to obtain a fresh lease, which again required registration. No document of regular deed contemplated in Clause 25 of the agreement or a fresh lease deed for the stated extensions was executed. Similarly no registered instrument has been placed on record to support defendant's plea of further extension w.e.f. 1.2.95. The plaintiff's letter dated 13.4.91 agreeing to the said extensions not being a registered document cannot create a tenancy for five years. The requirements of Section 107 of the Act having not been complied with, the stated renewals were invalid and of no consequence and the tenancy continued to be a monthly tenancy right from inception on 1.2.1980 determinable under Section 106 of the Act by 15 days notice expiring by the end of a month of tenancy.
"Para 16 : Now reverting back to the main question, viz.
assuming Section 53A of the Act were applicable to a case where a person entered into possession of the property pursuant to a lease agreement which was not registered, whether the presumption under Section 106 of the Act would be attracted. I have no hesitation in holding it so. Though possession or the occupation of the property by that person may be lawful and permissible, but as regards duration of the tenancy, it will be governed by the provisions of Section 106 of the Act and as in the present case, the tenancy would be deemed to be from month to month terminable by a notice of 15 days by either side."
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29. Reliance is also placed on another judgment in the case of Goodyear India Ltd. V. B.B. Jain, 1998 (VII) Ad (Delhi) 95 particularly on the following part of the said judgment:
"The first question for consideration is that does this letter give rise to a lease for a period of 3 years. Section 107 of the Transfer of Property Act lays down that a lease for a period of one year or more has to be through a registered instrument. In view of this specific provision of Act. This letter or any oral evidence in support of this letter spelling out any understanding between the parties cannot give rise to a lease. The period involved is 3 years and the lease has to be through a registered document. The learned Counsel for the tenant tried to place reliance on Section 53A of the Transfer of Property Act cannot be pressed into service in the facts of the present case in the absence of any writing signed by the landlords or on their behalf. The letter relied upon by the tenant is written by the tenant itself. It is addressed to one of the landlords or on their behalf. The letter relied upon by the tenant is written by the tenant itself. It is addressed to one of the landlords or on their behalf. The letter relied upon by the tenant is written by the tenant itself. It is addressed to one of the landlords therefore Section 53A is not attracted. Reference is invited to Bishwabani Pvt. Ltd. v. Santosh Kumar, AIR 1980 SC 226".
The above view further was upheld by the Hon'ble High court of Delhi in M/s. Singer India Ltd. Vs. Smt. Amita Gupta (Delhi) wherein 2001(1) RCJ 444, wherein it was held that there are two statutory provisions which required discussion : Para 6.... "One is contained in Section 107 of the T.P. Act as per which every lease of immovable property CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 20 Of 33 from year to year, or for a term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. According to the appellant term of three years lease in perpetuity is contained in the lease deed and will ensure for his benefit every three years. But any lease for a year or more would require compulsory registration as per the provisions of Section 107 of the T.P. Act. Therefore, it is to be determined as to whether the appellant can get the benefit of Section 53A of the T.P. Act and contend that due to the socalled part performance of paying enhanced rent after the expiry of original period of lease, the tenancy got extended by another three years, even when there was no instrument executed between the parties creating lease for another three years, what to talk of a registered instrument".
para 7. "If the contention of the appellant is accepted, the mandate contained in Section 107 of the T.P. Act is clearly violated. The effect would be that even is, as per Section 107 of the T.P. Act the lease of period exceeding one year (three years in this case) can be made only by a registered instrument, Section 53A of the T.P. Act would create a lease of three years period and give benefit/ protection to the appellant. Can Section 53A of the T.P. Act be construed in a manner which would negate the provisions of Section 107 of the T.P. Act? Section 107 of the T.P. Act states the manner in which lease of immovable property from year to year or for a term exceeding one year etc. is to be created. When legislature has intended a particular act to be done in a particular manner it has to be done in that manner or not at all. Therefore, no such interpretation to Section 53A of the T.P. Act can be given which nullifies the condition prescribed by Section 107 of the T.P. Act. Section 53A and Section 107 are to be read harmoniously so that both the provisions are given their proper effect. For this purpose, one will have to read down the provisions of Section 53A to exclude such types of situations (like CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 21 Of 33 the present one) which would otherwise have the effect of nullifying the provisions of Section 107 of the T.P. Act. Reading in this manner, effect of offering enhanced rent after the initial expiry of the lease period, would only be to legitimatize the possession. Otherwise, after the expiry of initial period of lease, appellant would have become unauthorized occupant of the demised premises. From that, however, it would not follow that, appellant acquires right to stay in the leased premises for another period of three years. This three years period can be available only if the lease is evidenced by written instrument which is duly stamped and registered and not otherwise. Therefore, in such a case tenancy would become month to month tenancy so long as the lease enhances rent and lessor accepts the same. However, lessor shall have right to terminate such a tenancy in accordance with the provisions of Section 106 of the T.P. Act treating it as lease of immovable property from month to month".
Para 8. "There is yet another reason to take this view. Here we mention another statutory provision which comes in the way of the appellant namely Section 49 of the Registration Act. As per the provisions of Section 49 of the Registration Act, a document which is compulsorily registrable and not registered cannot be read into evidence. Original lease deed executed between the parties is admittedly unregistered. The appellant is relying upon the clause of this very lease deed, which relates to renewal of the lease agreement by offering enhanced rent at the rate of 15 per cent over the original rent. When the lease deed is unregistered the aforesaid term in the lease deed is not admissible in evidence, the appellant cannot rely upon the same and contend that merely by offering enhanced rent after the expiry of original period, lease got extended by a period of three years. Accepting the contention of the appellate would amount to ignoring the provisions of Section 49 of the Registration Act. In fact by claiming renewal for another period of three CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 22 Of 33 years appellate is trying to invoke the aforesaid term of unregistered lease. This is not permissible. Invoking such a term of lease cannot be said to be looking at a lease of collateral purpose. Such a case cannot be brought under the proviso to Section 49".
para 10. "No doubt the possession is already with the lessee i.e. appellant herein and he wants protection thereof. the protection would be available to him only to the extent that he can justify his possession i.e. he is not trespasser. Section 53A will not enable him to press into service terms of a document which is unregistered though required by law to be registered. Allowing the appellant to enforce the terms of an unregistered lease would be illegal. Section 53A when used as a shield will be best enable the appellant to show that his possession is that of a tenant and not that of an unauthorized occupant or trespasser. It cannot take him any further".
30.Therefore, in the light of the observations and finding made in the present case as above, and reading the same conjointly and comprehensively with the law reproduced as above, it can safely be stated that the lease deed was not renewed after the lapse of first three years and post the termination of tenancy of the defendant by virtue of the legal notice served upon the defendant, defendant was in unauthorized occupation of the suit property.
31.Therefore, the only principal issue which is now left to be adjudged by this court is with regard to the damages that the plaintiff is entitled to receive from the defendant. At the cost of repetition, it is stated that plaintiff has claimed two reliefs from the court pertaining to the damages, first, being the damages for the period of 01.11.2007 to 30.11.2007 at the rate of Rs. 70/ per square feet per CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 23 Of 33 month which as per the plaintiff comes to Rs. 38,990/. Before adjudicating upon this issue, it is paramount to discuss the evidence adduced in order to prove the rate of rent prevailing at the vicinity of the suit property, having same measurement as that of suit property. In order to prove the rate of rent, plaintiff examined PW 5 Shri Affak Ahmed, Record Keeper from the office of the Sub RegistrarII, Janakpuri, New Delhi, who brought the summoned record comprising of three lease deed; First executed between one Shri Manorma Devi and Tecpro Systems Limited registered on 02.11.2007, Second lease deed executed between Smt. Alka Arora and Shri Virender Kumar on 06.02.2009, and Third lease deed executed between Shri Bhagwan Dass and M/s. Edge Entertainment Limited executed on 05.02.2008. It is noteworthy to mention that, though the three lease deeds are duly registered from the office of SubRegistrar, but they pertain to three different period i.e. 2007, 2008 and 2009, respectively. Therefore, in order to assess the applicability of these lease deeds to the present suit property it is relevant to discuss the terms and the conditions embodied in these lease deed. The lease deed executed between Alka Arora and Virender Kumar pertains to Vishwadeep Building, 9, District Centre, Janak Puri, New Delhi and was executed for a period running from 01.02.2009 to 31.07.2010 at the rate of Rs.50,000/. It is noteworthy to mention that the said lease deed does not specify the dimensions of the suit property for which it was executed, therefore, in this eventuality without knowing the dimensions of the suit property the applicability of the present lease deed to the property in question cannot be done.
CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 24 Of 33
32.Apart from this lease deed there are two other lease deeds which pertains to property 3A measuring 21 square feet and the same is not akin to the suit property in question. Further, though the lease deed specifies that the same is for commercial premises No. 705 and 706, but is not clear whether the measurement of both these properties is exactly the same or not. In this eventuality, the division of the rate of rent cannot be made on this basis as well by bifurcating an amount of Rs. 50,000/ into two equal halves.
33. Apart from this, there are two other lease deeds exhibited in evidence which are marked as Mark E. The lease deed being the one executed between Shri Vijay Kawatra and M/s. Destination Resort India Pvt. Ltd., pertains to the property measuring 557 square yards, which is again not similar to the area of the suit property in question. Therefore, the applicability of this lease deed on the suit property in question cannot be done simplicitor on the basis that the property in question is having different measurement from the lease deed relied upon by the plaintiff.
34. Further, it is noteworthy to mention that, there is another lease deed which is executed between Shri Bhagwan Dass Chandna and M/s. Edge Entertainment Pvt. Ltd. for plot No. 705 Vishwadeep Building, Plot No. 4, District Centre, Janka Puri and the measurements of the property is around 418 square feet. It is noteworthy to mention that the property forming the subject matter of the lease deed is located in the same building as that of the suit CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 25 Of 33 property and further the measurement of the property forming the subject matter of the lease deed executed between Bhagwan Dass Chandna and M/s. Edge Entertainment is approximately of the same measurement as that of the suit property and the rate of rent for this particular property as embodied in the lease deed is Rs.23,000/ and further the said lease deed was executed for a period of 01.02.2008 to 31.01.2011, thus it seems that for the period running from 2011, the property having similar measurement to that of suit property was fetching a rent of Rs. 23,000/ as per the evidence adduced by the plaintiff. Thus, as per this lease deed, the prevalent rate was Rs.55/ per square feet and not Rs.70/, as claimed by the plaintiff in the present case. Before adjudicating the aforesaid issue regarding the calculation of damages, I would also like to place reliance upon the observations made in "M/s National Radio and Electronic Co. Ltd. Vs. Motion Pictures Association" (RFA No. 441/2000, decided on 31.05.2015, Delhi High Court)", wherein it was observed that judicial notice can be taken of the facutm of increase of rent for the purpose of awarding mesne profits and damages. In the said judgment, reference was also made to "Vinod Khanna vs. Bakshi Sachdev (1995 (2) AD Delhi 304 and S.Kumar Vs. G. R. Katpalia (1999 RLR 114) and it was observed that judicial notice can always be taken of a fact that over a certain period the rents have generally arisen"
35.Now, reverting back to the fact and evidence led in the present case, according to plaintiff's own document which is marked as Mark E i.e., copy of lease deed executed between one Sh. Bhagwan Dass CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 26 Of 33 Chandna and M/s Edge Entertainment Ltd., and taking into account the aforesaid case laws, it can be assumed that plaintiff can be held entitled to the damages @ Rs. 55 per square feet and simultaneously it becomes significant to highlight that though the aforesaid lease deed between one Sh. Bhagwan Dass Chandna and M/s Edge Entertainment Ltd. pertains to the period starting from 01.02.2008 to 31.01.2011, a reasonable inference can be drawn as far as the period before February, 2008 is concerned i.e., from 01.11.2007 i.e., the period between 01.11.2007 till 31.01.2008, the prevailing rate of rent at that time might not have fluctuated much and must have remained around the same rate i.e., Rs.55/ per square feet. Therefore, the rate at which the plaintiff has claimed the damages in the present case i.e., @ Rs. 70/ per square feet, appears to be an exorbitant rate because as per the documents of the plaintiff herself, she cannot be held entitled to rate of damages more than Rs. 55/ per square feet for the period starting from 01.11.2007 till 31.01.2008. It is pertinent to mention here that the rate of Rs. 55/ per square feet has been taken for the aforesaid period, taking into account the copy of the lease deed executed by one Sh. Bhagwan Dass Chandna and M/s Edge Entertainment Ltd. which is marked as Mark E, as the said lease deed was executed for a period of three years expiring on 31.01.2011. Now, coming ahead, it is needless to say that the possession of the suit property in present case was handed over to the plaintiff on dated 27.07.2012 as per the records. Therefore, the plaintiff is entitled to damages for the period 01.02.2011 to 27.07.2012. Taking into account the cumulative effect of all the lease deeds placed on record by the plaintiff and the CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 27 Of 33 terms embodied there is nothing which reflects there was enhancement of rent. Moreover, relying upon the aforesaid case laws, it would be plausible to mould that plaintiff is entitled to 10 % approximately increase in the quantum of damages, thus, plaintiff is hereby entitled to damages @ Rs. 60 per square feet for the period running between 01.02.2011, till the date of handing over of the suit property i.e., 27.07.2012.
36. Apart from the above damages, plaintiff has also averred that damage has been caused to the suit property by the defendant as a result of making several changes in the suit property. In order to adjudge the structural changes in the suit property, the plaintiff ought to have explained the original possession in which the suit property was given on lease by the plaintiff to the defendant. The only document placed on record by the plaintiff is the lease deed which is completely silent with respect to the structural bifurcation of the suit property. Further, lease deed nowhere specifies the actual existing structures and evidence in the suit property. The details of the internal infrastructure and interior of the suit property are neither forming a part of the lease deed nor have they been explained and substantiated by any other document placed on record by the plaintiff. Therefore, in this eventuality, it cannot be adjudged as to what extent and the nature of damages caused to the suit property.
37. Further, PW2 in his crossexamination was put a specific question there were no furnitures fixtures in the premises and it was only a CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 28 Of 33 bare flat answers to this question PW2 replied that there were cabins and electrical fittings available in the premises, but candidly admitted that no furniture and fixtures were available in the premises. Further, in his crossexamination PW2 stated that he does not have any document to show that the cabins were constructed in the premises and the relevant portion of his cross examination to this effect is, "I do not have any document to show that I got the cabins constructed in the premises".
38. It is further noteworthy to mention that PW2 stated that the damages was caused to the interiors and fire fights by the defendant, but no evidence to this effect has been adduced by the plaintiff. Further, PW2 in his crossexamination stated that he received the calls from the maintenance society in 2012, where the defendant company was in process of vacating the premises to the effect that while dismantling the interiors, they had damaged the fire water pipes, but said averment made by PW2 in his crossexamination is blatantly bald averment as not even a single witness from the maintenance society was examined to depose to this effect and therefore, this averment remained unsubstantiated and uncorroborated.
39. It is further apropos to state that on one hand, plaintiff avers that extreme damage has been caused to the suit property by the defendant, but the quantum and the nature of the damage is not substantiated by any cogent evidence. Further, in his own cross examination dated 09.01.2015, PW2 states that he had visited the CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 29 Of 33 suit premises only twice i.e. once when the same was leased out to the defendant company and secondly when it was being vacated by them. However, the said fact stands contradicted by PW2 subsequent statement in his crossexamination dated 10.03.2015, whereby he himself stated in his voluntary statement that plaintiff got the suit property white washed in the year running between 2001 to 2012, so being the case, the plaintiff ought to have known if at all any damage was caused to the suit property at the time when the said white wash was being carried out by the plaintiff at the suit property, but no such complaint had been made by the plaintiff to the effect that at the time when the white wash was being done, any damages to the suit property were seen or found.
40. It is pertinent to mention that in order to establish the alleged damages caused to the suit property plaintiff examined PW4, Shri Rajesh Prasad who in his crossexamination categorically stated that he does not possess any specialized qualification for any kind of civil and electrical work and the relevant portion of his cross examination are "I do not have any specialized qualification for interior decoration and civil and electrical work" and further stated that he does not have any document to show that he is proprietor of M/s. S.R. Construction. Further, in his crossexamination, he categorically stated that he is working as an accountant with OPBK Construction Pvt. Ltd. on full time basis and the relevant portion of his crossexamination to this effect are "I work as an accountant with OPBK Construction Pvt. Ltd. G6 and 7, Vikram Tower, Rajendra Place, New Delhi on full time basis", meaning thereby CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 30 Of 33 PW4, by his own statements establishes that he is not the person concerned to testify the quantum of damages caused to any property. Further, PW4 in his crossexamination categorically admits that he has not mentioned the amount received from the plaintiff for doing construction work in his ITR Returns and the relevant portion of his crossexamination are "I had not mentioned the amount received from the plaintiff for doing construction work in the income tax return for relevant assessment year because the same was received in cash". At this stage, it is relevant to mention that even if for the sake of arguments it is believed that an amount was paid by the plaintiff to PW4, for carrying out some construction at the suit premises, this per se does not establish that the construction was done only to fix the damages which were caused by the defendant at the suit premises. The onus was strictly upon the plaintiff to establish in the first place that the damage and destruction to the suit property was caused by the defendant and to make good the said damages, the work of construction was undertaken by the plaintiff. It is also noteworthy to mention that PW4 in his crossexamination categorically stated that he is not a Govt. approved contractor to give the estimates. It is further apropos to mention that PW4 in his crossexamination clearly stated that he does not know if a partition wall ever existed between property No. 209 and 210 at the time of letting out of the suit premises. Thus, the principal averment regarding the existence of the wall between property No. 209 and 210 stands unestablished and unproved by the plaintiff. The court cannot lose the sight of the fact that in order to assess damage caused to any property, it is paramount to carry out a CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 31 Of 33 comparative analysis of the situation existing at the inception of giving the property on rent or lease and the same has to be compared and adjudged with the position of the property existing at the time when the lease was terminated. In this case, the position which existed at the time when the property was leased out stands unestablished and unsubstantiated as PW4, in his cross examination categorically stated that he had not seen the condition of suit premises 10 years ago and so being the case, it cannot be culled out as to what was the nature and the extent of damages caused, if at all by the defendant in the suit property as there is no original position depicted on record to make subsequent comparisons with the initial position. Further, plaintiff has not placed on record any photographs showing the position in which the property was handed over by the plaintiff to the defendant at the inception of the tenancy.
41. Therefore, in the considered opinion of this court in the light of the discussion made as above, it can be safely stated that plaintiff has miserably failed to prove that the damages caused to the suit property was on account of the mishandling of the suit property at the hands of the defendant. Hence, to sum it all up, plaintiff is entitled to damages @ 60 per square feet for the period 01.02.2011 till the date of handing over of the suit property i.e., 27.07.2012. Thus, issue No. 1 and 2 are decided in favour of the plaintiff.
RELIEF
42. Pursuant to the above two issues being decided in favour of the CS SCJ No. 12683/16 Daya Arora Vs. M/s Peerless General Finance & Investment Co. Ltd. Page no. 32 Of 33 plaintiff, as far as the claim of pendente lite and future interest is concerned @ 9% per annum, the court deems it fit to award interest to the plaintiff @ 6% per annum as same appears to be just and reasonable from the date of institution of the suit till its realization.
43. It is needless to say that, the amount, if not deposited by the defendant in the court or paid to the plaintiff, pursuant to the application filed under Section 39 rule 10 of CPC, be adjusted and set off against the final decreetal amount awarded in favour of the plaintiff.
No separate order as to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room, after due compliance.
Digitally signed by RICHA RICHA SHARMA
SHARMA Date: 2018.10.10
14:58:13 +0530
Announced in the open court (Richa Sharma)
today on 09.10.2018 Civil Judge 01 (West)/Delhi
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