Sardar Vallabhbhai Patel Smarak ... vs Samarth Nangia
2011 Latest Caselaw 4629 Del

         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

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

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

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:-

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/-.

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

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

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

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