* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.140 /2012
% 21st March, 2012
SH. VIKAS GUPTA ..... Appellant
Through: Mr. S.N. Gupta, Advocate.
versus
SH. RAVI RAJ SABHRAWAL ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 3.12.2011 decreeing the suit of the respondent/plaintiff/landlord for possession and mesne profits. The mesne profits which have been awarded are only at the agreed rate of rent between the parties.
2. In the city of New Delhi, those tenanted premises whose rents are above ` 3,500/- per month are not governed by the Delhi Rent Control Act, 1958. The monthly tenancy of such premises can be terminated by serving of a legal notice under Section 106 of Transfer of Property Act, RFA No.140/2012 Page 1 of 5 1882.
3. The facts of the case are that the appellant/defendant took on lease from the respondent/plaintiff under a lease deed dated 21.3.2000 the suit premises admeasuring 250 sq. yds. forming part of plot No.8, Gali No.4, Friends Colony, Industrial Area, G.T. Road, Shahdara, Delhi-32. The lease was for a period of 11 months and the rent was fixed at ` 16,500/- per month. It was pleaded that the appellant/defendant did not make payment of rent from 1.5.2006 and because of which arrears accumulated to ` 3,79,500/-. The respondent/plaintiff sent a legal notice dated 27.9.2007 terminating the tenancy, however, the appellant/defendant neither paid the arrears of rent nor vacated the premises, resulting in filing of the subject suit.
4. The appellant/defendant claimed that rate of rent was not ` 16,500/- per month but was only ` 5,000/- per month. It was pleaded that the tenancy commenced under the lease deed executed on 25.9.1997, however, after the original period of 11 months it was extended orally. It was pleaded that the rent had been paid regularly upto September, 2007 and whereafter the appellant/defendant was forced to deposit the rent in a petition under Section 31 of the Punjab Relief of Indebtedness Act, 1934 and under which statute a tenant can deposit rent against a landlord. It was RFA No.140/2012 Page 2 of 5 pleaded that the suit be dismissed.
5. After completion of pleadings, the trial Court framed the following issues:-
"1. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD
2. Whether the plaintiff is entitled to the recovery of possession of the factory shed in question? OPP
3. Whether the plaintiff is entitled to recover arrears of rent of ` 3,79,500/- for the period w.e.f. 01.05.2006 to 31.03.2008? OPP
4. Whether the plaintiff is entitled to recover damages/mesne profits? If so, at what rate and for which period? OPP
5. Relief."
6. The respondent/plaintiff proved on record the site plan as Ex.PW1/1, lease deed as Ex.PW1/2, legal notice terminating tenancy dated 27.9.2007 as Ex.PW1/3 and reply dated 5.10.2007 given to the legal notice as Ex.PW1/4.
7. With regard to entitlement to recovery of possession, the relevant issue framed by the trial Court was issue No.2. With regard to this issue, the trial Court held that the premises were outside the protection of Delhi Rent Control Act, 1958 even if the rent is assumed to be only ` 5,000/- per month as pleaded by the appellant/defendant and therefore the tenancy was validly terminated by serving of a notice under Section 106 of the Transfer of the Property Act, 1882. The trial Court hence decreed the suit for possession. Though the lease deed, Ex.PW1/2 may not be a RFA No.140/2012 Page 3 of 5 registered document, however, the same was only for a period of 11 months and therefore it was not required to be registered.
8. With regard to issue No.3 and the rate of rent, the trial Court observed that the rent which was stated in this lease deed was admittedly ` 16,500/- per month, and therefore, the trial Court arrived at a finding, and with which I agree, that the rate of rent was ` 16,500/- per month and not ` 5,000/- per month. The trial Court has also held that rent which was payable at ` 16,500/- per month was in arrears inasmuch as the case of the appellant/defendant was that payments were made through cheques or through bank draft, however, the appellant/defendant, though could have, did not place on record its bank statement to show that in fact payment of rent was made as claimed. Accordingly, the trial Court directed the payment of arrears of rent from 1.5.2006 till 31.3.2008 and thereafter mesne profits at the admitted rate of rent of ` 16,500/- per month. I do not find any illegality and perversity in the impugned judgment inasmuch as the lease deed admittedly entered into between the parties was for a period of 11 months, and which lease deed Ex.PW1/2 mentioned the rate of rent at ` 16,500/- per month. The appellant/defendant claimed payment of arrears of rent by means of cheques or bank drafts, but, did not file its bank statement and hence the trial Court disbelieved the stand of the RFA No.140/2012 Page 4 of 5 appellant/defendant. Since admittedly there is no registered lease deed between the parties, the tenancy was a monthly tenancy and consequently on service of a notice under Section 106 of Transfer of Property Act, 1882, the monthly tenancy was terminated and the appellant/defendant was bound to hand over actual physical vacant possession to the landlord.
9. This matter was argued yesterday and it was put up for today as the counsel for the appellant was to take instructions as to whether the appellant wanting a reasonable time to vacate the premises. Counsel for the appellant states that he has no instructions from the appellant. In any case the appellant has already stayed in the suit premises almost for five years after termination of tenancy and hence the appellant has already used the process of law to prolong his unauthorized occupation of the tenanted premises.
10. In view of the above, there is no merit in the appeal which therefore is dismissed.
VALMIKI J. MEHTA, J MARCH 21, 2012 Ne RFA No.140/2012 Page 5 of 5