Mr. Amit Sharma vs Mr. Mohit Gupta
2009 Latest Caselaw 3274 Del

.*         HIGH COURT OF DELHI : NEW DELHI

+          I.A. No.512/2009 in C.S. [OS] No.1674/2007

                                  Reserved on: 7th August, 2009

%                                 Decided on:    20th August, 2009

Mr. Amit Sharma                                       ...Plaintiff
                       Through : Mr. Lalit Bhardwaj, Adv. with
                                 Mr. Pradeep Kumar Arya, Adv.

                       Versus

Mr. Mohit Gupta                                        ....Defendant
                       Through : Mr. Sandip Sethi, Sr. Adv. with
                                 Mr. Rajesh Gupta, Adv. with
                                 Mr. Harpreet Singh and
                                 Mr. Sumit R. Sharma, Advs.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   No

2. To be referred to Reporter or not?                                Yes

3. Whether the judgment should be reported                           Yes
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I shall dispose of the application filed by the

Plaintiff being I.A. No.512/09 praying for issuance of an order directing

the defendant to pay user charges of the premises in question.

2. The brief facts are that the Plaintiff filed a suit for recovery

of possession, damages and interest in respect of property bearing No.D-

16, Defence Colony, New Delhi. The said premises in question were let

out for residential purposes to the defendant for the period from 20 th

January 2004 for two years ending on 17th July 2006 vide lease deed

dated 20th July 2004 which was duly executed/registered in accordance

with law. The defendant agreed to pay Rs.60,000/- per month as rent to

the father of the plaintiff for the said premises. The defendant agreed to

handover the possession of the premises on expiry of the lease period. It

is contended in the plaint that a separate agreement was executed on 20 th

July 2004 between the sister of the plaintiff and the defendant for use of

fittings, fixtures, furniture and services a the time of taking over the said

premises and for which the defendant agreed to pay Rs.40,000/- per

month as hire charges. The said hire agreement was agreed to remain in

force as long as the lease deed dated 20 th July 2004 continued to be

effective. It is not denied that the defendant mostly paid the above said

amount through cheque.

3. The father of the plaintiff, namely, Sh. Prakash Chand

Sharma who was the lessor of the lease deed dated 20 th July 2004

expired on 1st January 2007 leaving behind only two legal heirs i.e. the

plaintiff Amit Sharma (son) and Ms. Komal Sharma (Daughter). Ms.

Komal Sharma executed a relinquishment deed dated 5 th May 2007 in

favour of the plaintiff relinquishing her rights in the property in favour

of the plaintiff. Thus, the plaintiff is the successor of late Sh. Prakash

Chand Sharma.

4. On expiry of the lease deed dated 20 th July 2004 the

defendant failed to vacate the premises in question and hand over the

possession of the same to Late Sh. Prakash Chand Sharma who issued a

notice dated 1st November, 2006, calling upon him to handover the

possession of the premises in question. Despite notice dated 1 st

November 2006 the defendant failed to vacate or handover the peaceful

physical possession of the premises in question and after expiry of the

period of lease deed, the defendant had also not paid any agreed amount.

On 16th November 2007 the MCD informed the plaintiff that the

property stood mutated in his name. It is also a matter of fact that the

sister of the defendant Ms. Radhika was found to have committed some

commercial activities on the first floor of the said premises, therefore,

the said premises were sealed by the MCD and de-sealed on some

undertaking being given to the MCD.

5. After the death of his father, the plaintiff requested the

defendant to vacate the premises and clear the outstanding amount but

the defendant failed to comply with the said request. The plaintiff again

on 4th May 2007 requested the defendant to vacate the premises and pay

the penalty as per agreement i.e. at the rate of Rs.7,000/- per day. The

said request was again repeated in the month of July 2007. The total

penalty and charges from 20th July 2006 till the filing of the suit are

Rs.27,65,000/- @ Rs.7,000/- per day.

6. The contention of the plaintiff is that on expiry of the lease

deed dated 20th July, 2004, the defendant has no right or authority under

the law to retain the possession, since the defendant has failed to

handover the possession after notice dated 1st November 2006 was

issued by the father of the plaintiff and, therefore, the plaintiff is entitled

to a decree of possession of the premises in question as well as the

damages claimed along with interest @ 15% p.a. till the realization of

the same.

7. In the present application, it is stated that the current market

user charges of the premises in question would not be less than Rs. 3 lac

per month. Likewise the current hire charges for fittings, fixtures and

furniture is not less than Rs. 1 lac per month, therefore, it is prayed in

the application that the defendant be directed to pay Rs. 4 lac per month

or any other suitable amount as user charges of the premises in question

to the plaintiff on month to month basis till the disposal of the suit.

8. The application is opposed by the defendant on the ground

that no cause of action has arisen in favour of the plaintiff for filing the

instant application nor the plaintiff is entitled to any amount claimed in

the application. The suit property has been let out by the father of the

plaintiff to the defendant in terms of oral agreement as per the details

mentioned in the counter claim by the defendant in the written

statement. It is stated that in terms of agreement to sell dated 30 th

October, 2006 the defendant has made a payment of Rs.25 lac in cash to

the predecessor-in-interest i.e. the father of the plaintiff. The defendant

is ready and willing to perform his part of the obligations under the said

agreement to sell including payment of balance sale consideration. The

defendant has referred Para 7 of the written statement in this regard.

The relevant portion of Para 7 of the written statement is reproduced

hereunder:-

"7. Contents of paragraph 7 of the plaint are wrong and denied. It is correct that on expiry of lease on 20.07.2004 the defendant did not hand over vacant possession of the premises to Late Sh. Prakash Chand Sharma. It is denied that Late Sh. Prakash Chand Sharma has ever sent any communication to the defendant for taking back possession of the suit premises. The alleged communication dated

01.11.2006 is fabricated and forged letter and has never been sent to the defendant. It is denied that after expiry of lease any amount was payable to Late Sh. Prakash Chand Sharma. In reply to contents of paragraph 7 the defendant pleads as under :

(i) Late Sh. Prakash Chand Sharma, had in fact expressed his desire and intention to sell it to defendant, and had been requesting the defendant to wait for his visit to Delhi. Around end of October, 2006 Late Sh. Prakash Chand Sharma visited Delhi, and came to the suit property on 29.10.2006 to meet the defendant and his father. He implored upon the defendant and his father to purchase the same.

(ii) During the talks that proceeded, the defendant offered to purchase the property. Late Sh. Prakach Chand Sharma desired to discuss the issue next day and wanted time before he could finalize on the issue. Late Sh. Prakash Chand Sharma himself came to the suit premises on the next day, i.e. 30.10.2006 and expressed his willingness to sell the suit property to the defendant incase some good offer is made.

(iii) Defendant immediately offered to purchase the suit property at market price minus a reasonable concession that Late Sh. Prakash Chand Sharma would think it appropriate, accordingly Late Sh. Prakash Chand Sharama agreed to sell the suit property to the defendant at Rs.6,15,00,000/-. All terms of the sale were discussed and settled between the parties. It was settled and agreed that Rs.25,00,000/- would be paid forthwith and balance sale consideration of Rs.5,90,00,000/- would be paid to Late Sh. Prakash Chand Sharma on or before 31.3.2007, by which date the sale deed was decided to be executed. On the same day, i.e. 30.10.2006 earnest amount of Rs.25,00,000/- was paid by the defendant to Late Sh. Prakash Chand Sharma in cash.

(iv) The parties agreed that on receiving the sale consideration Late Sh. Prakash Chand Sharma shall execute direct sale deed in favour of the defendant and/or his nominee. It was also decided that since Late Sh. Prakash Chand Sharma would be leaving Delhi in day or two, the parties would be bound by the oral commitments, which would be deemed to be an agreement to sell. It was decided that oral undertakings would be reduced in writing, and would be kept ready by defendant for signatures of Late Sh. Prakash Chand Sharma, when he comes back from his trip/commitments.

Late Sh. Prakash Chand Sharma having agreed to sell the suit property under oral agreement to sell, and to acknowledge which he accepted the earnest sale consideration from the defendant, therefore, he was left with no right to claim the possession back from the defendant. Therefore, Late Sh.

Prakash Chand Sharma had no recoverable claim against the defendant after expiry of lease deed."

9. In the counter claim, the defendant has prayed for a decree

against the plaintiff for specific performance thereby directing the

plaintiff to perform his obligations under the agreement to sell dated 30th

October, 2006 and to register the sale deed in favour of the defendant in

respect of the property bearing No.D-16, Defence Colony, New Delhi or

in the alternative pass a decree for recovery of damages along with

interest @ 18% p.a. from the date of filing of the counter claim till

realization in favour of the defendant.

10. In reply to the counter claim, the plaintiff has denied the

averments made in the written statement and there is specific denial that

the lease agreement was superseded by the agreement to sell and/or

commitment of late Sh. Prakash Chand Sharma to sell the said property

to the defendant. It is stated that the father of the plaintiff never agreed

to sell the suit property to the defendant nor any communication has

been received from the defendant after expiry of lease deed or on the

date of filing of the suit. No agreement to sell was executed, therefore,

the plaintiff is not bound to perform the said agreement. The plaintiff

has also denied that the plaintiff has accepted any part consideration and

has refused to execute the sale deed as prayed by the defendant in the

counter claim.

11. In support of his contention the plaintiff has filed the

following original documents:-

i) Death Certificate of Sh. Prakash Chand Sharma.

ii) Original lease deed dated 20th July 2004.

iii) Hire agreement for fittings, fixtures dated 20 th July

2004.

          iv)    Copy of notice dated 1st November 2006.

          v)     Relinquishment deed in favour of the plaintiff by his

                 sister dated 5th May 2007.

          vi)    Letter dated 16th May 2007 issued by MCD for mutation

                 of the said property.

12. On the other hand, the defendant has not filed any documents

in support of their contention. Learned counsel for the defendant has

argued that in view of the defence taken by the defendant in Para 7 of

the written statement as well as filing of the counter claim in support of

the said defence, the defendant is not supposed to handover the vacant

possession of the premises after the expiry of the lease deed as by virtue

of oral agreement, the property in question has been sold by the father of

the plaintiff to the defendant and in terms of the agreement to sell dated

30th October, 2006 the defendant has already made a payment of Rs.25

lac to the father of the plaintiff as part consideration and the defendant is

still ready and willing to perform his obligation under the said

agreement, therefore, the question of paying the user charges does not

arise.

13. Mr. Sandeep Sethi, the learned senior counsel for the

defendant has also referred to Paras 4, 5 and 7 of the judgment reported

in Harish Ram Chandani vs. Manu Ram Chandani and others, 91

(2001) DLT 480 in support of his submission.

14. It is not disputed by the defendant that the lease deed was

executed on 20th July 2004 by the parties. The defendant has also not

disputed the user charges of Rs.60,000/- plus hire charges of

Rs.40,000/- for furniture and fixtures as per agreement dated 20th July

2004. The defendant has also not disputed that the lease period expired

on 19th July 2006. The defendant has also not denied the fact that after

the expiry of the said period, the defendant has not paid any amount i.e.

usage and occupation charges to the plaintiff. During the course of the

admission/denial, the defendant has also admitted the lease deed as

Ex.P-1 and Hire agreement for fittings and fixtures as Ex.P-2. The

contention of the plaintiff is that the defendant can not deny ownership

of the plaintiff, as, the defendant himself in the counter claim has

sought the relief for execution of the sale deed from the plaintiff.

15. As regards the judgment referred by the learned counsel for

the defendant is concerned, the facts in the case of Harish Ram

Chandani (supra) were not similar with the facts of the present case. In

the said case, the plaintiff has not denied the factum of receipt of three

cheques of Rs.2,80,000/- each given by defendant No.1 to the plaintiff.

Under these circumstances, the court was of the view that the defence of

the defendant that the plaintiff had agreed to sell the suit property to the

defendant No.1 for which the plaintiff has received the complete sale

consideration although there was no agreement to sell in writing was

accepted by the court in view of the prima facie evidence available on

record. The court has also believed the credence of the story put forth

by the defendant and, therefore, the court did not grant the relief to the

plaintiff under the provisions of Order XXXIX Rule 10 CPC by coming

to the conclusion that the said defence is not sham and frivolous. It was

also recorded by the court in the order referred by the defendant, that

even the stamps taken for the sale deed of the value of Rs.24,200/- each

were purchased. In these circumstances, the application was dismissed

by the court. However, in the present case there is not an iota of

evidence on record in support of the defence raised by the defendant.

16. It is pertinent to mention that the lease expired on 19 th July

2006. After the expiry of lease period, notice was served by the father

of the plaintiff on 1st November 2006 wherein the defendant was called

upon to handover vacant possession of the suit property. The father of

the plaintiff expired on 1st January 2007. The written statement was

filed on 25th March 2008. According to Para 7of the written statement,

there was an oral agreement between the defendant and father of the

plaintiff and the defendant has made payment of Rs.25 lac to the father

of the plaintiff. In case any agreement is executed on 30 th October 2006

and payment was also made on the same date, there ought to have been

some evidence on record to show that the defendant issued any

communication/letter/or receipt of amount allegedly paid by the

defendant to the plaintiff or his predecessor-in-interest i.e. the father of

the plaintiff till the date of filing of the present suit.

Where a party come forward to seek a decree for specific

performance of contract of sale of immovable property on the basis of

an oral agreement alone, heavy burden lies on the party to prove that

there was consensus ad idem between the parties for a concluded oral

agreement for sale of immovable property. Whether there was such a

concluded oral contract or not would be a question of fact to be

determined in the facts and circumstances of each individual case. It has

to be established by the defendant in the present case. It is the admitted

fact that there is no written agreement or receipt as alleged by the

defendant and not a single document whatsoever has been filed by the

defendant in support of his contention raised in para 7 of the written

statement.

17. Prima facie, the contention of the defendant about the

purchase of the property from the plaintiff's father does not appear to be

convincing, the said defence has to be examined at the time of trial.

Thus the story put forth by the defendant cannot be accepted. The fact

remains that the defendant has not paid any usage and occupation

charges as well as the hire charges after the expiry of the lease period

i.e. 19th July, 2006. Hence this court is of the view that at this stage it is

a fit case where the court should exercise its discretion in favour of the

plaintiff by allowing the application being I.A. No.512/09. The

defendant is liable to pay atleast the admitted usage, occupation and hire

charges as mentioned in the two agreements.

18. Considering the matter in totality at this stage, I am of the

prima facie view that the application of the plaintiff be allowed. The

defendant will pay to the plaintiffs directly the arrears of usage and

occupation charges @ Rs.1,00,000/- p.m. from the date of expiry of

lease deed within four weeks from today and thereupon the defendant

shall keep on paying the admitted usage and occupation charges

regularly as per the terms of the lease deed so arrived at between the

parties. Needless to say that all the amount paid pursuant to the orders

of this court shall be subject to final outcome of the present suit. The

claim of the plaintiff regarding the usage and occupation charges shall

also be considered at final stage. The application stands disposed of

accordingly.

C.S. [OS] No.1674/2007

List this matter before the Court on 5th October, 2009 for

framing of issues.

                                            MANMOHAN SINGH, J
AUGUST         20, 2009
SD