THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 20.09.2011
+ CS(OS) 727/2010, IA 4969/2010 (u/O 39 R 1 & 2 CPC)
& IA 16007/2010 (u/O 8 R 10 CPC)
SARDAR VALLABHBHAI PATEL
SMARAK TRUST ..... Plaintiff
Through: Mr. G. Tushar Rao and
Mr. Atanu, Advs.
versus
SAMARTH NANGIA ..... Defendant
Through: None.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported No.
in Digest?
V.K. JAIN, J. (ORAL)
1. This is a suit for possession and recovery of money. The plaintiff is the owner of property No.7, Jantar Mantar, New Delhi. A part of the ground floor and mezzanine floor of the aforesaid property was let-out by the plaintiff to the defendant vide Lease Deed dated 1 st May 2008, which was got registered on 12th June 2008, on the rent of Rs.2,15,000/- per month. The rent was to be CS(OS)No.727/2010 Page 1 of 9 increased by 15% after every three years. The defendant also agreed to pay service tax on the amount of the rent. The case of the plaintiff is that the defendant has failed to pay rent since 1st January 2009 despite several reminders to him in this regard. Since the defendant defaulted in payment of rent, the lease was determined vide legal notice dated 4th March 2010. The defendant, however, has not vacated the demised premises despite termination of tenancy. The plaintiff has now claimed Rs.32,25,000/- being arrears of rent for the period from 1st January 2009 to 31st March 2010.
2. This is also the case of the plaintiff that in terms of the sub-Clause 3 of Clause IV of the Lease Deed, the defendant also became liable to pay an amount equivalent to six months' rent and after adjusting the security deposit of Rs.6,45,000/- which he had deposited with the plaintiff, he is liable to pay an amount of Rs.6,45,000/- to the plaintiff. That amount has also been claimed by the plaintiff in addition to the arrears amounting to Rs.32,25,000/-.
3. Since the tenancy has been terminated, the plaintiff is also claiming possession of the suit premises from the defendant. Damages for use and CS(OS)No.727/2010 Page 2 of 9 occupation/mesne profit @ Rs.3,50,000/- per month have been claimed by the plaintiff from the defendant w.e.f. the date of filing of the suit.
4. The defendant did not file the written statement within the prescribed period and filed IA 16386/2010 for extension of time to file the written statement alleging that he had not been served with any summon from the Court. IA 16007/2010 was filed by the plaintiff for pronouncement of judgment against the defendant on the ground that he had failed to file written statement despite service of summon on him. IA 1679/2011 was also filed by the defendant seeking condonation of delay in filing the written statement. Vide order dated 7th February 2011, the applications filed by the defendant were dismissed, his right to file written statement was closed and his defence was struck off.
5. The plaintiff has filed the affidavit of Mr. Viresh Pratap Chaudhry by way of evidence in terms of the order of the Court dated 7th February 2011. In his affidavit by way of evidence Mr. Chaudhry has stated that defendant has not paid any rent from January 2009. He has further stated that legal notice dated 4th March 2010, Ex.PW-1/16 was CS(OS)No.727/2010 Page 3 of 9 sent to the defendant terminating his tenancy and requiring him to handover vacant and peaceful possession of the demised premises to the plaintiff. He has further stated that the notice was affixed in the presence of Ms. Kanchan Diwan, Notary Public and Mr. S.S. Mishra, representative of the plaintiff, on 11th March 2010. According to him, the defendant has failed to pay rent for the period from 1 st January 2009 to 28th February 2010 and he has become liable to pay damages/mesne profit for use and occupation of the demised premises w.e.f. 1st March 2010 @ Rs.3,50,000/- per month.
6. Ex.PW-1/3 is the Lease Deed whereby a part of the ground floor and mezzanine floor of property No.7, Jantar Mantar, New Delhi was let-out by the plaintiff to the defendant at the rent of Rs.2,15,000/- per month, w.e.f. 1st June 2008. Sub-clause 5 of Clause II of the Lease Deed shows that a sum of Rs.6.45 Lacs was deposited by the defendant with the plaintiff as interest free security, which was to be refunded on the defendant vacating the tenancy premises, after making permissible deductions from it.
7. Sub-clause 2 and 3 of Clause IV of the Lease Deed reads as under:-
CS(OS)No.727/2010 Page 4 of 9
2. If the Lessee commits default in payment of rent for more than two consecutive months or commits breach of any other condition of the lease, the Lessor will be entitled to determine the lease forthwith, besides taking legal action including realization of upaid rent after its appropriation from the security deposit.
3. If the Lessee vacates the demised premises before the expiry of 6 years from the commencement of the lease plus notice of six months thereafter to be given by the Lessee, or the Lessor determines the lease under Clause 2 above, the Lessee shall nevertheless be liable to pay rent of the unexpired period of the lease or of notice, or for a period of 6 months, whichever is less and that payment may also be realized by the Lessor from the Security deposit of the Lessee by taking recourse of law.
It would thus be seen that in the event of default in payment of rent for more than two consecutive months, the plaintiff was entitled to determine the lease forthwith and in that event, the defendant was liable to pay rent for a period of six months to the plaintiff.
8. I see no reason to disbelieve the unrebutted testimony of Mr. V.P. Chaudhry. His testimony shows that the defendant did not pay rent w.e.f. 1st January 2009. The amount of arrears of rent @ Rs.2,15,000/- per month for the period from 1st January 2009 to 31st March 2010 comes to Rs.32,25,000/-.
CS(OS)No.727/2010 Page 5 of 9
9. Ex.PW-1/16 is the notice dated March 4, 2010 whereby tenancy of the defendant was terminated giving him 15 days' notice for the purpose. In view of the provisions of Section 106 of Transfer of Property Act, the tenancy of the defendant could be terminated by giving 15 days' notice to him. A perusal of the notice dated 4 th March 2010 would show that the defendant was given 15 days' from the date of the receipt of the notice to vacate the tenancy premises. He, therefore, was given requisite time in terms of Section 106(1) of the Transfer of Property Act. In any case sub-Section 3 of Section 106 of Transfer of Property Act provides that a notice issued consequent to sub-Section (1) shall not be invalid merely because the period mentioned therein falls short of the period specified in sub-Section (1), where a suit is instituted after expiry of the period mentioned in sub-Section (1). Since the suit has been filed on 5th April 2010, the notice whereby the tenancy of the defendant was terminated was a valid notice in terms of Section 106 of the Transfer of Property Act.
10. Ex.PW-1/19 is the certificate of posting whereby the notice was sent to the defendant. There is a statutory presumption under Section 114(f) of the Indian Evidence Act CS(OS)No.727/2010 Page 6 of 9 of service of notice sent and statutory presumption raised in this Section remained unrebutted. In V.S. Krishnan v. Westfort Hi-Tech Hospital Ltd. (2008) 3 SCC 363, Supreme Court drew the presumption of service sent under certificate of posting for the purpose of Section 53(2) of the Companies Act, 1956. In Samittri Devi & Anr. v. Sampuran Singh & Anr. (2011) 3 SCC 556, Supreme Court observed that it will depend upon the facts of each case as to whether a presumption of service of a notice sent under postal certificate should be drawn and that such a presumption is expected to be drawn when the facts so justify, even in the case of a letter sent under postal certificate. In the case before this Court, the defendant has not filed Written Statement controverting the averments made in the plaint. Hence, I find no reason for not raising a statutory presumption of service of the notice sent under certificate of posting Ex. PW-1/19. Moreover, the report of the Notary Pubic Ex.PW-1/21 would show that the notice was also affixed at A-7, NDSE, Part II, New Delhi where the defendant was residing at the relevant time. The notice has thus been also served by affixation as well. The tenancy of the defendant therefore stood validly terminated, by the end CS(OS)No.727/2010 Page 7 of 9 of March, 2010.
11. As the tenancy of the defendant has been terminated, the plaintiff has become entitled to possession of the tenancy premises. The plaintiff is also entitled to recover a sum of Rs.32,25,000/- towards arrears of rent for the period from 1st January 2009 to 31st March 2010. The plaintiff became entitled to amount equivalent to six months' rent in terms of Clause IV (3) of the Lease Deed which comes to Rs.12,90,000/-. After adjusting security amount of Rs.6,45,000/-. The plaintiff is entitled to recover a sum of Rs.6,40,000/- from the defendant, in terms of the aforesaid Clause of the Lease Deed.
12. On account of termination of the tenancy, the possession of the defendant became unauthorized w.e.f. 1 st April 2010. Though the plaintiff has claimed mesne profit/damages for the use and occupation @ Rs.3,50,000/- per month w.e.f. the date of filing of suit, no evidence has been led by it to prove that there was any increase in the rent prevailing in the locality and that the prevailing rent w.e.f. 1st April 2010 was Rs.3,50,000/- or a sum higher than Rs.2,15,000/- per month which was the rent agreed between the parties. I, therefore, hold that the plaintiff is CS(OS)No.727/2010 Page 8 of 9 entitled to recover damages for use and occupation of the aforesaid premises only @ Rs.2,15,000/- per month.
13. For the reasons given in the preceding paragraphs, a decree for possession of the premises shown in red colour in two site plans annexed to the plaint (which forms part of the Lease Deed Ex.PW-1/3), and for recovery of Rs.38,70,000/- with costs as well as pendente lite and future interest on the amount of Rs.38,70,000/- @ 6% per annum is passed in favour of the plaintiff and against the defendant. A decree for recovery of mesne profit/damages for use and occupation @ Rs.2,15,000/- per month w.e.f the date of filing of the suit till the defendant hands over the possession of the suit premises to the plaintiff is also hereby passed in favour of the plaintiff and against the defendant. The plaintiff is granted six weeks' time to pay prescribed Court fee on the amount of the damages for use and occupation which have become payable till date.
Decree sheet be drawn accordingly.
The suit and pending IAs stand disposed of.
(V.K. JAIN) JUDGE SEPTEMBER 20, 2011 Ag CS(OS)No.727/2010 Page 9 of 9