M/S. Bpl Travels Ltd. vs Sh.Davinder Vacher & Anr.
2011 Latest Caselaw 4227 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RFA No.450/2011

%                                                       30th August, 2011

M/S. BPL TRAVELS LTD.                                        ...... Appellant
                             Through:      Mr. Abdul Sattar, Adv.

                             VERSUS

SH.DAVINDER VACHER & ANR.                                 ...... Respondents
                   Through:                Mr. Rakesh Agarwal, Adv



CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

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


VALMIKI J. MEHTA, J (ORAL)

Caveat No.785/2011

                Counsel appears for the caveator. Caveat stands discharged.

+ RFA No.450/2011

1.              The challenge by means of this Regular First Appeal is to the

impugned judgment and decree dated 7.5.2011 which has decreed the

suit     of    the   respondents/plaintiffs/landlords    against    the    appellant/

company/defendant/tenant for possession and mesne profits.

2.              The facts of the case are that the appellant/company took on

rent     the    premises    being   Flat   no.710,   Indraprakash    Building,   21,

Barakhamba Road, New Delhi admeasuring 595 square feet from the


RFA No.450/2011                                                           Page 1 of 5
 respondents vide lease deed dated 16.12.2005 w.e.f. 1.1.2006 at monthly

rent of Rs.22,000/- per month. Since the appellant/tenant failed to pay

the rent w.e.f. 1.4.2007, the respondents/plaintiffs served a legal notice

terminating the tenancy dated 7.10.2007 w.e.f. 31.10.2007. Since the

appellant/company/tenant failed to vacate the premises, the subject suit

for possession and mesne profits came to be filed.

3.         In a suit for possession and mesne profits what is required to

be seen is that there is a relationship of landlord and tenant between the

parties. The rate of rent is more than Rs.3,500/- per month and therefore

the premises are outside the protection of Delhi Rent Control Act, 1958

and the notice under Section 106 of Transfer of Property Act, 1882 has

been served terminating the tenancy.

4.         So far as the relationship of landlord and tenant is concerned,

the same is not disputed. So far as the rate of rent is concerned whereas

the appellant stated the rate of rent @ Rs.11,000/- per month, the

respondents stated that the rent is Rs.22,000/- per month. This monthly

rent @ Rs.11,000/- per month of the premises also in excess of Rs.3,500/-

per month and thus the premises would be outside the protection of the

Delhi Rent Control Act, 1958. So far as the service of notice is concerned,

the Trial Court has noted that the notice was served at the residential

addresses of the Directors of the appellant/company and therefore the

tenancy has been validly terminated. In any case I have had an occasion

to consider the aspect of the requirement of service of notice under

Section 106 of the Transfer of Property Act, 1882 in the case of M/s.

Jeevan Diesels & Electricals Ltd. vs. M/s. Jasbir Singh Chaddha

RFA No.450/2011                                                Page 2 of 5
 (HUF) & Anr. RFA 179/2011 decided on 25.3.2011. In the judgment of

M/s. Jeevan Diesels & Electricals Ltd. (supra) I have held that the

service of summons in the suit can be taken as a service of notice under

Section 106 of the Transfer of Property Act, 1882 read with Order 7 Rule 7

CPC.   I have also held that a copy of the notice terminating tenancy is

served as a document upon the defendant and again due to which it can

be said that the notice terminating tenancy has been served upon the

tenant again read with Order 7 Rule 7 CPC. I have also referred to the

intendment of the legislature in enacting Act 3 of 2003 bringing about the

amendment in Section 106 of the Transfer of Property Act, 1882 to do

away with the technical defences of inadequacies in service of notice of

terminating tenancy as long as a period of 15 days expires prior to filing of

the suit. An SLP against the said judgment being SLP No.15740/2011 has

been dismissed by the Supreme Court on 7.7.2011.

5.          Accordingly, I do not find any fault with the impugned

judgment and decree for possession inasmuch as there is a relationship of

landlord and tenant, rate of rent is more than Rs.3,500/- per month, and

the notice terminating tenancy has been validly served or in any case as

per the judgment in the case of M/s. Jeevan Diesels & Electricals Ltd.

(supra), the suit has been validly filed.

6.          The only issue is with respect to grant of arrears of rent as to

whether the same should be at the rate of Rs.22,000/- per month or

Rs.11,000/- per month. The Trial Court has referred to various aspects to

hold that the rate of rent is Rs.22,000/- per month and not Rs.11,000/- per

month.   In para 19, the Trial Court has referred to the fact that the

RFA No.450/2011                                                  Page 3 of 5
 defendant/appellant    has    not    disputed   the   cheque    dated    7.2.2006

exhibited as Ex.PW-1/8 was in fact given towards rent at the rate of

Rs.22,000/- per month. In fact the DW1 in his cross-examination admitted

that a cheque no. 230482 for Rs.22,000/- in December, 2005 was given

towards the rent for January, 2006. The Trial Court has also noted that

the appellant being a company would have been maintaining regular

accounts, however, no statement of accounts was filed on behalf of the

appellant/defendant either with respect to the fact of payment of rent or

as to the rate of rent. Not only that the appellant did not file its statement

of accounts, further no balance sheet or Income Tax Returns were filed

because otherwise the same would have been demonstrated that the rate

of rent was Rs.22,000/- per month and thus an adverse inference has

been rightly drawn against the appellant-company. I may only note that

though the appellant/tenant/company has for its convenience denied the

signatures on the lease deed dated 16.12.2005, of course, the same was

denial for the sake of convenience and the lease deed dated 16.12.2005

clearly mentions the rate of rent as Rs.22,000/- per month. In fact, in my

opinion, the Trial Court has been more than liberal to the appellant

because no increase in the rent has been granted though ordinarily taking

judicial notice of increase of rates of rent higher mesne profits than the

admitted rent is normally granted by the Courts.

7.          The    facts     of     the   present     case     show     that   the

respondents/landlords have been greatly harassed by the appellant/

company/tenant for a number of years by not only not paying the rent but

also by refusing to vacate by obdurately and malafidely denying

RFA No.450/2011                                                       Page 4 of 5
 possession by raising false defences to the suit.      I therefore find that

present is a fit case in terms of the Para 37 of the judgment in Salem

Advocate Bar Association Vs. Union of India (2005)6SCC 344 that

actual costs should be awarded to the respondent. I am also entitled to

impose actual costs by virtue of Chapter VI Section I Rule 15 of Volumes 5

of the Punjab High Court Rules & Orders (as applicable to Delhi).

Accordingly, the respondents should file an affidavit in this Court showing

actual expenses towards the present appeal being the payment made to

their lawyers and which affidavit will be supported by the certificate of the

lawyers of having received the necessary fees with respect to this appeal.

Such affidavit be filed within a period of 4 weeks from today. The fees

which have been paid to the lawyers as stated in this affidavit shall be the

costs which shall be payable by the appellant to the respondents for this

appeal.   With the aforesaid observations, the appeal stands dismissed

with costs.




AUGUST 30, 2011                                  VALMIKI J. MEHTA, J.

ak