IN THE COURT OF MS.[ENTITY], ADDITIONAL DISTRICT JUDGE-02, WAKF TRIBUNAL, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI Suit Number : 422/09. Unique ID Number : [CASE NUMBER]. Mr. [ENTITY], Son of late Mr.H.C.Khatri, Resident of G-43, Kirti Nagar, New Delhi. Plaintiff. Versus M/s [ENTITY], Flat No.E-35( Flat E on 3 rd floor), Himalaya House, 23, Kasturba Gandhi Marg, New Delhi-110001. Defendant. Date of institution : 01.04.2009. Date of conclusion of arguments : 08.11.2011. Date of judgment : 08.11.2011. Appearances: Mr. [ENTITY], counsel for the plaintiff. Mr. [ENTITY], counsel for the defendant. [CASE NUMBER]. Unique ID Number: [CASE NUMBER]. [ENTITY] v. M/s [ENTITY]. - Page 1 of 17 - JUDGMENT
1. Once a tenant is always a tenant and the tenanted property is not to be vacated is apparently the mantra of the defendant.
PLAINT
2. This is a suit for recovery of possession / ejectment and recovery of mesne profits/damages etc. filed by Mr. [ENTITY], the plaintiff, (hereinafter referred to as the plaintiff) against M/s [ENTITY], the defendant, (hereinafter referred to as the defendant).
3. In the plaint, Mr.[ENTITY], the plaintiff, has averred that he is the owner-landlord of commercial Flat No.E-35 (Flat E on 3rd floor) Himalaya House, 23, Kasturba Gandhi Marg, New Delhi-110001 (hereinafter referred to as the suit property) having an office space of 994 square feet. The defendant was a tenant qua the said flat and the last monthly rent paid by the defendant in respect of the said flat was Rs. 44,100/- payable in advance. The defendant had taken the said flat on lease from Dr. [ENTITY] (since deceased) and Ms. [ENTITY]. The last lease deed qua the said flat was signed and executed between Ms.[ENTITY] wife of late Dr. [ENTITY] and the defendant on 03.08.2005 for a period of three years commencing from 01.07.2005 to 30.06.2008. After the expiry of the lease on 30.06.2008, no fresh lease deed has been signed, executed and registered. Ms. [ENTITY] had assigned, transferred and sold all her right, title, share, claim and interest etc. in the said flat to the plaintiff. Ms.[ENTITY] and the plaintiff have entered into an agreement to sell dated 11.06.2008 in this regard and subsequently a sale agreement dated [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 2 of 17 -
11.02.2009 was also signed, executed and registered with the Sub Registrar, New Delhi. Since the expiry of the lease term on 30.06.2008, the plaintiff has been repeatedly approaching and requesting the defendant to quit, vacate and hand over peaceful vacant possession of the said flat to the plaintiff. The plaintiff has prayed that a decree of possession/ejectment in respect of the said flat i.e. commercial Flat No. E-35(Flat E on 3 rd floor) Himalaya House, 23, Katurba Gandhi Marg, New Delhi having an office space of 994 square feet be passed in favour of the plaintiff and against the defendant and a money decree of Rs.13,92,130/- be passed in favour of the plaintiff and against the defendant. A decree of payment of pendente lite and future mesne profits/damages be passed till the date of handing back the peaceful vacant actual physical possession of the said flat to the plaintiff minimum at the rate of Rs.155/- per square foot per month or at any higher rate.
SERVICE
4. Service of the summons of the case was effected upon defendant and pursuant thereto defendant appeared before the Court and filed its written statement contesting the case.
WRITTEN STATEMENT
5. In the written statement filed on behalf of the defendant, the averments made in the plaint have been controverted and rebutted submitting that the plaintiff is neither the owner nor the landlord of the suit property. The defendant is a tenant in the suit property and is paying the rent to Ms.[ENTITY] with the rent having paid for the month of May, 2009 vide cheque number 506917. The rent for the months of July, 2008 to [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 3 of 17 -
April, 2009 was also tendered to Ms.[ENTITY] and the rent for the month of July, 2009 is being tendered shortly. Flat No. E-35 (Flat E on 3 rd floor) is not a Municipal number. M/s DCM Limited were in occupation of the entire third floor prior to its occupation by the defendant and M/s DCM Limited was left free to do the interiors as per their own liking and requirement and the third floor was allowed to remain one hall only. M/s DCM Limited were further told that the builder had entered into agreements with different persons to sell different areas of the third floor and M/s DCM Limited were directed to pay the rent which they settled for the entire third floor in proportion to the areas agreed to be sold to different persons. The defendant occupied the same and started paying the rent, different amounts in the proportion as were being paid earlier by M/s DCM Limited to different persons. There never was / is any identifiable Flat number E-35 (Flat-E on third floor). Prayer for the dismissal of the suit is made.
REPLICATION
6. In the replication, the plaintiff has reiterated and reasserted the averments made in the plaint and rebutted the averments made in the written statement.
RENT / DAMAGES
7. Vide order dated 30.07.2009 of the learned predecessor of this Court, on the application of the plaintiff under [SECTION] under [SECTION] of the [ACT], on the census of the parties, it was ordered that the rent / damages w.e.f. 01.07.2008 @ Rs.44,100/- per month shall be deposited by the defendant in the Court, without prejudice to the rights of [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 4 of 17 -
both the parties.
ISSUES
8. Vide order dated 02.09.2009 of the learned predecessor of this Court, the following issues were framed:
1) Whether the plaintiff is entitled to decree of ejectment/possession in respect of suit premises i.e Flat No.E-35, (Flat E on third floor), Himalaya House, 23, K.G.Marg, New Delhi-110001. OPP.
2) Whether the plaintiff is entitled to decree of damages/mesne profits. If yes, at what rate and for what period. OPP.
3) Whether the plaintiff is entitled to a money decree of Rs. 13,92,130/-. OPP.
4) Whether the plaintiff is entitled to interest. If yes, at what rate, for which period and on what amount. OPP.
5) Relief.
PLAINTIFF'S EVIDENCE
9. In order to prove his case, the plaintiff has examined as many as three witnesses i.e. himself as PW1, Mr.[ENTITY], LDC, Sub- Registrar VII, [ENTITY], INA, New Delhi as PW2; and Mr. [ENTITY] as PW3. The defendant has examined Mr.[ENTITY] as DW1 and Mr. [ENTITY] as DW2.
10. PW1, Mr.[ENTITY], the plaintiff, has filed his affidavit in evidence reiterating and reasserting the averments made in the petition. He has also proved the documents:-
a) The plan is Ex.PW1/1.
b) The lease deed is Ex.PW1/2.
c) Agreement to sell dated 11.06.2008 is Ex.PW1/3.
d) The sale agreement dated 11th February 2009 is Ex.PW1/4.
[CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 5 of 17 -
e) Copy of letter dated 11th June 2008 is Ex.PW1/5.
f) Copy of letter dated 11th July 2008 along with copies of enclosures is Ex.PW1/6(Colly).
g) Regd AD post and postal receipt Ex.PW1/7.
h) Copy of letter dated 12th August 2008 along with copies of enclosures is Ex.PW1/8 (Colly).
i) Regd AD post and the post receipt Ex.PW1/9.
j) Copy of the said notice dated 14th July 2008 is Ex.PW1/10.
k) The postal receipt is Ex.PW1/11 and UPC is Ex.PW1/12.
l) letter dated 29th July 2008 to the post master is Ex.PW1/13.
m) The confirmation letter dated 07.08.2008 is Ex.PW1/14.
n) Copy of the notice dated 5th March 2009 is Ex.PW1/15.
o) The postal receipt is Ex.PW1/16 and UPC is Ex.PW17.
p) Copy of the registered lease deed is Ex.PW1/18.
q) Copy of the registered lease deed is Ex.PW1/19.
r) Copy of the registered lease deed is Ex.PW1/20.
s) Copy of the registered lease deed is Ex.PW1/21.
t) His affidavit is Ex.P1.
11. He has been cross examined at great length.
12. PW2 had produced the summoned record and has proved the following documents:
a) Agreement to sell is Ex.PW1/4 with certificate under [SECTION] of the [ACT] at point C.
b) Lease deed is Ex.PW1/19 dated 21.05.2008 with certificate under [SECTION] of the [ACT] at point A.
c) Lease deed is Ex.PW1/20 dated 07.03.2008 with certificate under [SECTION] of the [ACT] at point A.
d) Lease deed is Ex.PW1/18 dated 23.05.2008 with certificate under [SECTION] of the [ACT] at point A.
e) Lease deed is Ex.PW1/21 dated 09.06.2008 with certificate under [SECTION] of the [ACT] at point A.
13. PW-3, Mr. [ENTITY] has deposed that he is in the service of Loke Nath & Company, the builder and developer of Himalaya House [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 6 of 17 -
and proved the building plan with regard to the third floor, Himalaya House, K.G.Marg, New Delhi as Ex.PW-3/1 and the suit property i.e. Flat number E-35, 3rd Floor, Himalaya House, K.G.Marg, New Delhi is shown at point encircled A. DEFENDANT'S EVIDENCE
14. DW1, Mr.[ENTITY], has filed his affidavit in evidence as his examination in chief, wherein he has reiterated and reasserted the averments made in the written statement. He has been cross examined at length.
15. DW2, Mr.[ENTITY], has filed his affidavit in evidence as his examination in chief, wherein he has reiterated and reasserted the averments made in the written statement. He has been cross examined at length.
ARGUMENTS
16. I have heard the arguments at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments and synopsis filed by both the sides.
17. Both the sides to referred to many documents and averments / deposition which are not relevant and therefore, only the relevant and material documents and averments / deposition in respect of the issues framed are being taken into consideration. After due consideration, the [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 7 of 17 -
issues are decided as follows:
ISSUE NUMBER 1
18. Issue number 1 is Whether the plaintiff is entitled to decree of ejectment/possession in respect of suit premises i.e Flat No.E-35, (Flat E on third floor), Himalaya House, 23, K.G.Marg, New Delhi-110001. OPP.
19. The first dispute raised by the defendant is that the suit property is not identifiable as the third floor is one big hall. However, it is clear from the site plans produced and proved by the plaintiff in the evidence of his witnesses i.e. Ex.PW1/1 and Ex.PW3/1 that the suit property i.e. Flat No.E-35 (Flat E on 3rd floor) Himalaya House, 23, Kasturba Gandhi Marg, New Delhi-110001 is clearly identifiable. The lease deed, Ex.PW1/2, was properly stamped duly the trial and is an admitted document as it is not disputed. The defendant has also failed to show that the lease was extended by Ms.[ENTITY]. The defendant has also admitted the letters dated 04.10.2001, Ex.DW1/PX2, dated 27.09.2001, Ex.DW1/PX3 and dated 03.05.2001, Ex.DW1/PX4. The suit property is elaborated in the same and now the defendant cannot dispute the identity of the suit property. The defendant and its witnesses have claimed that there are no walls on the third floor but have not filed any counter site plan. However, it is also clear that even if there are no walls but still the suit property can be demarcated and identified from the site plans which have been duly proved by the plaintiff.
20. The second dispute is regarding the locus of the plaintiff [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 8 of 17 -
to file the present suit as the defendant is vehemently challenging the same and claiming that Ms.[ENTITY] is the landlady of the suit property.
21. The plaintiff has claimed himself to be the owner and landlord of the suit property by virtue of an agreement to sell dated 11.06.2008 between himself and Ms.[ENTITY], the previous owner, and subsequently a sale agreement dated 11.02.2009 signed, executed and registered with the Sub Registrar, New Delhi. He has also proved the same in his evidence as PW1 as well as the evidence of PW2.
22. The defendant, relying upon the judgment of the Hon'ble Supreme Court of India reported as [PRECEDENT] dated 11.10.2011, 2011 (VII) SLJ 494, has submitted that the plaintiff cannot be considered to be the owner and landlord of the suit property as he does not have a proper sale deed in his favour.
23. However, I am of the considered opinion that the contention of the defendant in this regard is without merit as firstly a tenant (as the defendant admittedly is) cannot challenge the title of the landlord and owner and secondly as the judgment relied upon is not applicable to the given facts as it is from the prospective effect and the retrospective effect as clearly mentioned in paragraphs numbers 18 and 19 of the judgment (not being reproduced herein). Also the plaintiff has not only produced and proved the agreement to sell dated 11.06.2008 between himself and Ms.[ENTITY], the previous owner, and the sale agreement dated 11.02.2009 but also the letters written by Ms.[ENTITY] to the defendant [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 9 of 17 -
(Ex.PW1/5, Ex.PW1/6 (colly) alongwith the postal receipts) informing the defendant about the sale of the suit property to the plaintiff vide agreement to sell dated 11.06.2008 and for handing over the vacant possession to him and also informing about the transfer of the security deposit of Rs. 15,11,100/- to the plaintiff.
24. It would be pertinent to mention here that the defendant, when claiming that Ms.[ENTITY] is the owner and landlady of the suit property, has failed to produce and examine her in the Court to substantiate its averments and consequently, its contention becomes unbelievable.
25. The plaintiff, on the other hand, by producing and proving the relevant documents and examining his witnesses has successfully shown that he is the owner and landlord of the suit property w.e.f. 11.06.2008.
26. Further, the third dispute is that the defendant has claimed that it has not been served with the legal notice. However, I am of the considered opinion that even this contention is untenable as it is clear from the legal notice as well as the postal receipts and the AD Cards, Ex.PW1/10 to Ex.PW1/17, (which admittedly bear the address of the defendant as per DW1) that the defendant has been served at the address of the suit property which is also mentioned as the address of the defendant in the address form and array of parties.
27. The defendant has been asked to vacate and hand over the vacant and peaceful possession of the suit property to the plaintiff vide the [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 10 of 17 -
legal notice which is as per the provisions of the [ACT].
28. As far as notice under [SECTION] of [ACT] is concerned, the proposition of law on this aspect is made clear by Hon'ble Supreme court in [CASE NUMBER] titled [PRECEDENT], wherein it was held that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, there is no hesitation to hold that no notice to quit was necessary under [SECTION] of [ACT]. This view is also expressed in [PRECEDENT].
29. The evidence of DW1, instead of supporting the claim of the defendant, infact shatters the same. He has deposed in his cross examination that " At the time of getting prepared my affidavit filed in evidence in the matter, I have not seen any record of DCM Limited or of the defendant company I have not brought any record to show that the rentals cheques were tendered to Smt. [ENTITY] to July, 2008 to April, 2009. I have not brought any account book or bank statement to show that the said cheques were encashed by Ms.[ENTITY]. I am not aware that Smt. [ENTITY] had already transferred the suit premises in favour of the plaintiff Encashment of these cheques is not shown in this statement "
30. Despite due opportunities, DW1 failed to produce the bank accounts, bank ledger, extracts thereof, statement of account from the bank for the period from July, 2008 to July, 2009. He has further admitted that there is no debit entry of any amount in the name of Ms.[ENTITY] for the period of July, 2008 to July, 2009.
[CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 11 of 17 -
31. Similarly, DW2 has also failed to prove that the rent from July, 2008 to July, 2009 has been paid by the defendant to Ms.[ENTITY].
He also failed to produce the statement or bank entry to substantiate the claim of the defendant. He has also admitted that after the filing of the present suit, the defendant company has not written any letter to Ms.[ENTITY] including the letter regarding depositing of rent / amount in this Court as per the orders passed in the matter. There is no document filed on the record by the defendant company to show that the entire third floor was rented to it as one single unit. He has also admitted that separate rents are paid to separate landlords in respect of the entire third floor under separate lease deeds.
32. Therefore, in view of the foregoing reasons and discussion, I am of the considered opinion that the plaintiff has successfully proved that he, being the owner and landlord of the suit property, is entitled to decree of ejectment/possession in respect of suit premises i.e. Flat No.E-35, (Flat E on third floor), Himalaya House, 23, K.G.Marg, New Delhi-110001. It is also proved that the defendant has not made the payment of rent w.e.f. July, 2008.
33. Issue number 1 is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NUMBER 2
34. Issue number 2 is Whether the plaintiff is entitled to decree of damages/mesne profits. If yes, at what rate and for what period.
[CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 12 of 17 -
35. As issue number 1 has been decided in favour of the plaintiff, consequently, since the rent etc. have not been to the plaintiff from July, 2008 (he became the owner and landlord of the suit property w.e.f. 11.06.2008) he is entitled to the damages / mesne profits.
36. The plaintiff has claimed damages / mesne profits at the rate of Rs.155/- per square foot per month or at any higher rate. The defendant has submitted that the said claim is without any merit and is liable to be dismissed.
38. I find on perusal of the evidence of the witnesses that the plaintiff has produced the lease deeds of the neighbouring properties to show the market rent. The DWs have deposed that they are not aware about the rate of rent of the neighbouring properties as shown in the copies of the lease deeds. However, the plaintiff has neither produced the executants of the said lease deeds of the neighbouring properties nor examined them, I am not inclined to grant any higher rate of the mesne profits / damages.
39. The tenancy of the defendant in respect of the suit property stood terminated vide the legal notice dated 14.07.2008 and therefore, w.e.f. the date of expiry of the tenancy the defendant is required to pay the damages/ mesne profits/ compensation and not the rent.
40. The defendant has not been able to show anywhere that the [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 13 of 17 -
plaintiff is not entitled to damages / mesne profits at the rate of Rs.155/- per square foot per month. There is no effective cross examination of the plaintiff, PW1, regarding the damages / mesne profits claimed at the rate of Rs.155/- per square foot per month.
41. Therefore, I am of the considered opinion that the plaintiff is entitled to the damages / mesne profits at the rate of Rs.155/- per square foot per month w.e.f. July, 2008.
42. Issue number 2 is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NUMBER 3
43. Issue number 3 is Whether the plaintiff is entitled to a money decree of Rs.13,92,130/-. OPP.
44. As issues number 1 and 2 have been decided in favour of the plaintiff, consequently, since the rent is not to be paid to the plaintiff by the defendant w.e.f. July, 2008 but it is required to pay the damges / mesne profits, no separate money decree of Rs.13,92,130/- is required to be made in favour of the plaintiff as the rent as well as the damages / mesne profits are required to be adjusted.
45. Issue number 3 is accordingly decided.
ISSUE NUMBER 4
46. Issue number 4 is Whether the plaintiff is entitled to [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 14 of 17 -
interest. If yes, at what rate, for which period and on what amount. OPP.
47. As the foregoing issues have been decided in favour of the plaintiff and against the defendant, the plaintiff is also required to be paid the interest on the amount to be paid by the defendant as damages / mesne profits at the rate of Rs.155/- per square foot per month w.e.f. July, 2008.
48. Both the sides have not lead any evidence regarding the rate of interest.
49. In the circumstances, I am of the considered opinion that the interest should not be arbitrary or on higher side and therefore, interest at the rate of 9 % per annum should be fair and reasonable.
50. Accordingly, the plaintiff is entitled to interest at the rate of 9 % w.e.f. July, 2008, on the amount to be paid by the defendant as damages / mesne profits at the rate of Rs.155/- per square feet per month w.e.f. July, 2008.
51. Issue number 4 is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NUMBER 5
52. Issue number 5 is the relief.
53. As issues numbers 1 to 4 have been decided in favour of the plaintiff and against the defendant, the case of the plaintiff is successfully [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 15 of 17 -
proved.
54. Accordingly, in view of the foregoing reasons and discussion as well as the facts and circumstances of the case, a decree of recovery of possession/ ejectment in respect of the suit property i.e. commercial Flat No.E-35 (Flat E on 3rd floor) Himalaya House, 23, Kasturba Gandhi Marg, New Delhi-110001 (hereinafter referred to as the suit property) having an office space of 994 square feet and a decree of recovery of mesne profits / damages etc. at the rate of Rs. 155/- per square foot per month w.e.f. July, 2008 along with pendent lite and future interest at the rate of 9 % per annum from the filing of the suit till the realization is hereby passed in favour of Mr.[ENTITY], the plaintiff, and against M/s [ENTITY], the defendant.
55. Needless to mention here that the amount already deposited by the defendant in the Court in terms of the order dated 30.07.2009 of the learned predecessor of this Court shall stand adjusted.
56. Accordingly, the suit is hereby allowed.
COURT FEES
57. The deficient Court fees as per the decreetal amount be deposited by the plaintiff within one month.
58. I have seen the record of the case. I also feel that in this case [CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 16 of 17 -
that the plaintiff was constrained to file this case despite being no substantial dispute between the parties. The defence in this case appears to have been raised on behalf of the defendant only for the purpose of delaying payments to the plaintiff. In the course of the trial also, the repeated attempts were made to delay the proceedings on behalf of the defendant on one pretext or the other whether on the ground of settlement or whether for impounding the lease deed. I feel that in addition to the relief claimed, the plaintiff is also be entitled to a special cost of Rs. 25,000/-.
59. Accordingly, cost of Rs.25,000/- is also awarded in favour of the plaintiff to be paid by the defendant.
DECREE SHEET
60. Decree sheet be prepared accordingly in terms of this judgment.
61. After the completion of formalities, the file be consigned to the record room.
Announced in the open Court ([ENTITY]) on this 08th day of November, 2011. ADJ-02, Wakf Tribunal, New Delhi.
[CASE NUMBER].
Unique ID Number: [CASE NUMBER].
[ENTITY] v. M/s [ENTITY]. - Page 17 of 17 -