Delhi High Court
Rajesh Behl & Ors. vs M/S Ess Aay Fashion India Pvt. Ltd. on 14 February, 2012
Author: Manmohan Singh
.* HIGH COURT OF DELHI: NEW DELHI
% Order decided on: 14.02.2012
+ CS(OS) No.2585/2011
RAJESH BEHL & ORS ..... Plaintiffs
Through Mr. Preet Pal Singh, Adv. with
Ms. Priyam Mehta, Adv.
versus
M/S ESS AAY FASHION INDIA PVT LTD ..... Defendant
Through Defendant already ex-parte.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.(Oral)
1. The plaintiffs have filed the instant suit for ejectment, recovery of
arrears of rent and tax deducted at source amounting to Rs.31,99,835/- along
with future interest @15% per annum from the date of filing of the suit till
realization of the amount of mense profits.
2. It is averred in the plaint that plaintiffs are the joint owners of a shop
bearing private No. „A‟ in the property No.F-141, Rajouri Garden, New
Delhi comprising of Ground Floor, 1st Floor and Second Floor. Vide
registered lease deed dated 04.09.2008 the defendant took the said shop
bearing private No. „A‟ for a monthly rental of Rs.2,00,000/- besides water,
electricity and other charges. The defendant paid the said monthly rent till
CS(OS) No.2585/2011 Page No.1 of 4
09.06.2010. For the month ending on 09.07.2010 the defendant only paid
Rs.1,60,000/- and for the month ending on 09.08.2010 the defendant only
paid Rs.40,000/-. With effect from 10.08.2010, the defendant stopped
paying the rent and is in arrears of rent from 10.08.2010 to 10.06.2011.
Further, the plaintiffs came to know that the defendant has neither deposited
tax deducted at source on rent with the Government nor paid it to the
plaintiffs for depositing it with the Government.
3. It is further stated that as per clause 8, the non-payment of rent
amounts to the breach of Rent Agreement dated 04.09.2008 therefore, by
way of notice dated 28.06.2011 the plaintiffs terminated the tenancy of
defendant in the said shop „A‟ from the end of 15 clear days of the receipt of
the said notice which was sent under registered A.D. post. But, despite
service of the said notice dated 28.06.2011, the defendant did not send any
reply to the same.
4. Further, it is stated by the plaintiffs that after the termination of
tenancy by them, the defendant is not entitled to remain in possession of the
said shop „A‟. Thus, the defendant is in wrongful possession of the said shop
„A‟ and the plaintiffs being the owners have the right to obtain possession of
the said shop „A‟ from the defendant and, therefore, the plaintiffs have filed
the present suit.
5. The suit was listed before the court for the first time on 17.10.2011
when the summons were issued to the defendant. However, despite service
no one appeared on behalf of the defendant therefore, vide order dated
04.11.2011 the defendant was proceeded ex-parte. The plaintiff filed
evidence by way of affidavit Ex.PW-1/A of plaintiff No.1 i.e. Shri Rajesh
Behl, who proved the following documents:
CS(OS) No.2585/2011 Page No.2 of 4
(i) Ex.PW-1/1- Power of Attorney dated 04.09.2008 executed by
plaintiffs No. 2 to 5 in favour of plaintiff No.1.
(ii) Ex.PW-1/2- Certified copy of the site plan of the suit property.
(iii) Ex.PW-1/3-Certified copy of the registered Lease Deed dated
04.09.2008.
(iv) Ex.PW-1/4- Notice of the plaintiffs dated 28.06.2011.
(v) Ex.PW-1/5- The original postal receipts of the notice dated
28.06.2011.
(vi) Ex.PW-1/6- Acknowledgment card.
(vii) Ex.PW-1/7- returned envelope with the Acknowledgement Card.
6. I have heard the learned counsel for the plaintiffs and have also gone
through the affidavit Ex.PW-1/A in ex parte evidence as well as the
documents placed on the record. The defendant did not file the written
statement. The evidence filed by the plaintiffs has gone unrebutted as no
cross-examination of PW-1 Shri Rajesh Behl, was carried out. Therefore,
the statements made by the plaintiffs are accepted as correct deposition.
7. Under these circumstances, the suit of the plaintiffs is decreed in
terms of paras (i) and (ii) of the prayer clause which read as under:
"(i) pass a decree of ejectment for the recovery of
possession in favour of the plaintiff against the defendant
of the one shop bearing private No. „A‟ in property
No.F-141, Rajouri Garden, New Delhi-110027
comprising of Ground Floor, 1st Floor and 2nd Floor with
carpet area of 800 square feet on each floor and shown in
RED in the site plan annexed herewith;
(ii) pass a decree for recovery of the sum of
Rs.31,99,835/- (Rupees twenty two Lac only) as arrears
of rental amounting to Rs.24,40,000/- (Rupees twenty
four lacs fourty thousand only) till the expiry of 15 days
of the receipt of the notice dated 28.06.2011 plus the sum
CS(OS) No.2585/2011 Page No.3 of 4
of Rs.7,59,835/- towards the TDS deducted, in favour of
the plaintiff and against the defendant."
8. As regards the occupation charges of the suit property from the date of
termination of the tenancy, the learned counsel for the plaintiffs is agreeable
that the same be paid by the defendant at the rate of rental of Rs.2 lac per
month. For other reliefs, the plaintiffs have reserved their right to file a suit
for recovery of the same.
9. As far as the pendentelite and future interest is concerned as claimed
by the plaintiff in para (iii) of the prayer clause @15% per annum from the
date of filing of the suit till the realization of the same, I am of the view that
the said claim of the plaintiffs is on the higher side and the plaintiffs shall
only be entitled to the same @ 9% per annum. The plaintiffs are also
entitled for the cost. Ordered accordingly. A decree be drawn accordingly.
The additional Court fee, if any is due, be paid by the plaintiffs within two
weeks from today. The defendant is directed to handover the vacant and
peaceful possession of the suit property to the plaintiffs on or before
24.03.2012, otherwise, the plaintiffs would be at liberty to take the
appropriate proceedings in accordance with law.
10. All pending applications, if any, also stand disposed of.
MANMOHAN SINGH, J.
FEBRUARY 14, 2012
