Gurvinder Singh Dhingra vs K.K.Bindal
2011 Latest Caselaw 4085 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                       Judgment Pronounced on: 23.08.2011

+ CS(OS) 2314/2010

GURVINDER SINGH DHINGRA                ..... Plaintiff
              Through: Mr Rakesh Aggarwal, Adv.

                                 versus

K.K. BINDAL                                       .... 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 recovery of possession, rent and

mesne profit. The plaintiff is alleged to be the owner of

property bearing No. E-6, Maharani Bagh, New Delhi, rear

portion of which comprising one drawing room and dinning

room, one kitchen, one study room, one bathroom on the

ground floor, four bedrooms with three attached bathrooms

and one separate bathroom on the first floor, and bedroom

with attached bathroom on the second floor with the

terrace, one garage and one servant quarter above the

garage, lawn in the rear with separate drive way was let out

to the defendant for a period of two years commencing from

1st May, 2009, on a monthly rent of Rs 2,25,000/- vide lease

deed dated 23rd April, 2009. The defendant was also

required to pay electricity and water charges in addition to

the agreed rent and hand over the original bills after

payment. It is alleged that since the defendant defaulted in

payment of rent as well as electricity and water charges, his

tenancy was terminated vide legal notice dated 28th July,

2010. It is alleged that now a sum of Rs 10,50,000/- is due

to the plaintiff towards arrears of rent for the period from 1 st

May, 2010 to 31st October, 2010, after adjusting the amount

of Rs 3,00,000/-, received for this period. The plaintiff has

claimed the aforesaid amount along with Rs 46,550/- as

interest on it @ of 12% per annum. The plaintiff has also

claimed mesne profit/damages for use and occupation at

the rate of Rs 10,000/- per day, in terms of the stipulation

contained in the lease deed in this regard.

2. Since the written statement was not filed by the

defendant, his right to file the written statement was closed

and his defence was struck off vide order dated 1 st June,

2010. The plaintiff was, however, directed to file affidavit by

way of evidence in order to satisfy the Court with respect to

the merits of this case.

3. In his affidavit by way of evidence, the plaintiff has

supported, on oath, the case setup in the plaint and has

stated that the suit premises was let out to the defendant @

Rs 2,25,000/- exclusive of electricity and water charges and

the defendant had continuously defaulted in payment of

rent. According to him, a sum of Rs 10,50,000/- was due to

the plaintiff on the date of filing of this suit. He has stated

that a sum of Rs 6,75,000/- was due from the defendant

towards rent for the period from 1st May, 2010 to 31st July,

2010, out of which Rs 3,00,000/- was paid to him, leaving a

balance amount of Rs 3,75,000/- for the aforesaid period.

According to him, thereafter, the defendant defaulted in

payment of rent for the period from 1st August, 2010 to 31st

August, 2010 and a sum of Rs 6,75,000/- is due from him

for that period. Thus, according to the plaintiff, a total sum

of Rs 10,50,000/- was due to him from the defendant

towards arrears of rent from the period ending 31 st October,

2010. He has further stated that the defendant made

payment of Rs 15,00,000/- to him during pendency of the

suit.

4. Ex.PW-1/1 is the registered lease deed, whereby

the suit property was let out by the plaintiff to the defendant

at the rent of Rs 2,25,000/- per annum. I see no reason to

disbelieve the unrebutted deposition of the plaintiff with

respect to arrears of payment due to him. His testimony

would show that a sum of Rs 10,50,000/- was due to him

from the defendant as arrears of rent for the period ending

31st October, 2010.

5. Ex.PW-1/14 is the notice dated 28th July, 2010

sent by the plaintiff to the defendant through his counsel

Shri Rakesh Aggarwal. The notice was sent vide Certificate

of Posting Ex.PW-1/16 and postal receipt, Ex.PW-1/15. Ex.

PW-1/17 is the envelope in which the notice was sent to the

defendant by registered post. A perusal of the endorsement

made on the envelope would show that the notice was

refused by the defendant. Refusal amounts to a valid service

of notice and, thereby, the plaintiff duly served the notice

Ex.PW-1/14 on the defendant. The notice was also sent

under Certificate of Posting. There is a presumption under

Section 114 (f) of the Evidence Act that the notice was

delivered to the addressee in the ordinary course of

business of the Postal Department. 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 Exh. PW-1/16.

A presumption with respect to the notice sent

under certificate of posting was raised by Punjab & Haryana

High Court in Amrit Lal Sharma v. Narainder Sharotri 2000

(1) PLJR 806 (P&H) and by Andhra Pradesh High Court in

M.A.Ghani v. P. Rama Reddy 2003 (3) Andh LT 120 (AP).

Vide this notice, the tenancy was terminated on

the expiry of 31st October, 2010. In view of the provisions

contained n Section 106 of Transfer of Property Act, a lease

of immovable property for a purpose other than agricultural

or manufacturing purpose is terminable by fifteen days'

notice on the part of either the lessor or lessee. Since the

suit premises was let out to the defendant for residential

purpose, as is evident from the lease deed itself, the tenancy

could have been terminated by giving fifteen days' notice.

The notice by registered post was sent on 28th July, 2010.

In ordinary course, it must have been tendered to the

defendant within two-three days thereafter.

6. Assuming that the notice was refused on 31 st July,

2010, the defendant got at almost three months to vacate

the tenancy premises. The notice sent under Certificate of

Posting on 28th July, 2010 also would in the normal course

have been delivered to the defendant within two-three days,

i.e., by 31st July, 2010. The tenancy, therefore, was validly

terminated. In any case, the tenancy being for a period of

two years, it also expired by efflux of time on 30th April,

2011.

7. Clause 3 of the lease deed provided that in case the

lessee did not vacate and hand over the possession of the

demise property to the lessor on the expiry of its term, he

shall be liable to pay damages @ Rs 10,000/- per day for

use and occupation of the premises. The lease deed,

however, does not stipulate payment of mesne

profit/damages @ Rs 10,000/- per day, for a period prior to

expiry of the term of the lease deed. It does not stipulate

that in the event of determination of the tenancy before

expiry of its term, the lessee would be required to pay

damages to the lessor @ Rs 10,000/- per day, for use and

occupation of the tenancy premises. Thus, the plaintiff is

entitled to recover damages for use and occupation @ Rs

10,000/- per day only w.e.f. 1st May, 2011. As regards the

period from 1st November, 2010 to 30th April, 2011, the

plaintiff has not led any evidence to prove what the market

rate of the suit premises was during the aforesaid period.

Hence, for the period from 1st November, 2010 to 30 th April,

2011, the plaintiff is entitled to recover damages for use and

occupation only @ Rs 2,25,000/- per month.

8. Since the tenancy of the defendant was validly

terminated w.e.f. 31st October, 2010, and in any case, it has

also expired by efflux of time on 30th April, 2011, the

plaintiff is also entitled to recover the possession of the suit

premises from the defendant.

9. Though the plaintiff has also claimed interest @

12% per annum, there is no agreement between the parties

for payment of interest. However, interest can be awarded to

the plaintiff in terms of Section 3 of Interests Act, 1978,

which to the extent it is relevant, provides that in any

proceedings for the recovery of any debt or damages or in

any proceedings in which a claim for interest in respect of

any debt or damages already paid is made, the court may, if

it thinks fit, allow interest to the person entitled to the debt

or damages or to the person making such claim, as the case

may be, at a rate not exceeding the current rate of interest,

if the proceedings relate to a debt payable by virtue of a

written instrument at a certain time, then, from the date

when the debt is payable to the date of institution of the

proceedings;

In the facts and circumstances of the case, I award

interest to the plaintiff @ 6% per annum. The amount of

interest @ 6% per annum comes to Rs 23,275/-.

                               ORDER

            In    view   of   above   discussion,   a   decree      for

possession of the suit premises comprising one drawing

room and dining room, one kitchen, one study room, one

bathroom on the ground floor, four bedrooms with three

attached bathrooms and one separate bathroom on the first

floor, and bedroom with attached bathroom on the second

floor with the terrace, one garage and one servant quarter

above the garage, lawn in the rear with separate drive way,

of property No. E-6, Maharani Bagh, New Delhi, recovery of

Rs 10,73,27511/- towards arrears of rent for the period

ending 31st October, 2010, and interest up to filing of the

suit, recovery of damages for use and occupation/mesne

profit @ Rs 2,25,000/- per month for the period from 1st

November, 2010 to 30th April, 2011 and @ Rs 10,000/- per

day for the period from 1st May, 2011 till recovery of

possession of the suit premises of the plaintiff is hereby

passed in favour of the plaintiff and against the defendant.

The plaintiff will also be entitled to proportionate costs of

the suit. The plaintiff will get pendente lite and future

interest @ 6% per annum. The plaintiff will pay the deficient

Court fee in respect of damages for use and occupation

within two weeks from the date of this judgment.

(V.K. JAIN) JUDGE AUGUST 23, 2011 bg