Delhi High Court
Satish Kumar & Anr vs M/S Ess Aay Fashion India Pvt Ltd on 16 February, 2012
Author: G. S. Sistani
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1863/2011
% Judgment dated 16.02.2012
SATISH KUMAR & ANR ..... Plaintiffs
Through Mr.Neeraj Dev Gaur, Advocate
For the plaintiffs.
Mr.Utsav Trivedi, Advocate
Fro the intervenor.
versus
M/S ESS AAY FASHION INDIA PVT LTD
& ANR ..... Defendant
Through None
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (ORAL)
1. Plaintiffs have filed the present suit for possession, recovery of arrears of
rent, mesne profit, damages and interest. Defendants were served with the
summons in the suit, as is evident from the order of the Joint Registrar dated
27th August, 2011. None had chosen to appear on behalf of the defendants
neither any written statement was filed. Defendants were accordingly
proceed ex parte on 3rd January, 2012. Plaintiffs were directed to file ex
parte evidence. The plaintiffs have filed the evidence of both the plaintiffs.
Both PW1 and PW2 have deposed on the lines of the plaint.
2. As per the plaint, the plaintiff No.1 is completely blind and both the
plaintiffs are entirely dependent on rent received from the suit property,
namely, shop bearing No.73 and 36 Central Market, Lajpat Nagar-II, New
Delhi comprising of basement and ground floor, comprising of first floor
and second floor with terrace respectively (hereinafter referred to as
"suit property"). Plaintiffs are stated to be joint owners of the suit
property. Counsel for the plaintiffs submits that although the building is
one yet separate numbers have been given.
3. The defendants approached the plaintiffs for taking the suit property on
lease and accordingly a lease deed dated 12th May, 2008 (Ex.PW1/2) was
executed between the parties for a period of three years to be extended for
another two terms of three years each on various terms mentioned in the
lease deed. Monthly rent of the suit property was fixed at Rs.2,75,000/-.
At the time of signing of the lease, the defendants also handed over post
dated cheques to the plaintiffs towards future rent. However, the post
dated cheque for the month of March, 2010 was dishonoured on account
of payment being stopped. Similarly, post dated cheque towards half rent
for the month of February and March 2010 was also dishonoured on
account of payment having been stopped.
4. The defendants defaulted in making the payment of the rent for the period
January to August, 2010 , which led to the filing of a civil suit, which suit
stands decreed on 11th March, 2011. Decree dated 02.04.2011 is Ex.PW-
1/5. The plaintiffs thereafter terminated the lease of the suit premises by
issuing a legal notice dated 11th April, 2011 and also claimed arrears of
rent along with interest, service tax, electricity and water charges etc.
Copy of the legal notice has been placed on record and is marked as
Ex.PW1/7. Postal receipts have been collectively marked as Ex.PW-1/8.
5. In the affidavit by way of evidence, it has been deposed that the
defendants have not paid arrears of rent from September, 2010 till 11th
May, 2011. As per the evidence, the following amounts are due from the
defendants separately :-
BALANCE RENT FROM SEPTEMBER, 2010 TO MAY, 2011 IN
FAVOUR OF DEPONENT
Month Actual Rate Rent Rent Balance
Rent of Payable Received Amount of
TDS Rent
(50%
share)
September, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
October, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
November, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
December, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
January, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
February, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
March, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
April, 2011 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
May, 2011 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
TOTAL ARREARS OF RENT 11,13,750/-
Rs. Eleven Lakhs Thirteen Thousand Seven Hundred Fifty Only
BALANCE RENT FROM SEPTEMBER, 2010 TO MAY, 2011 IN
FAVOUR OF PLAINTIFF NO.2 TILAK RAJ
Month Actual Rate Rent Rent Balance
Rent of Payable Received Amount of
TDS Rent
(50%
share)
September, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
October, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
November, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
December, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
January, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
February, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
March, 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
April, 2011 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
May, 2011 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/-
TOTAL ARREARS OF RENT 11,13,750/-
Rs. Eleven Lakhs Thirteen Thousand Seven Hundred Fifty Only
6. Counsel for the plaintiffs submits that as far as the prayer for mesne profit
is concerned, the plaintiffs shall be satisfied if mesne profit are awarded at
the rate of last paid rent by the defendants. It is also submitted that the
plaintiffs are entitled to interest at the rate of 25% p.a. in terms of
agreement between the parties. However, the counsel for the plaintiffs
submits that the plaintiffs shall be satisfied if interest at the rate of [email protected] is
granted on the arrears of rent.
7. I have heard the learned counsel for the plaintiffs and carefully perused
the affidavit by way of evidence. I have also perused the lease deed
(Ex.PW-1/2), which has been placed on record, the legal notice
terminating the tenancy of the defendants (Ex.PW-1/7) and the postal
receipts (Ex.PW-1/8) evidencing the legal notice having been posted to
the defendants. The plaintiffs have been able to establish that they are the
owners of the suit property, which was given on lease to the defendants in
terms of the lease deed dated 12th May, 2008, Ex.PW-1/2. As per the lease
the rate of rent was fixed at Rs.2,75,000/- to be paid to the plaintiffs
jointly. Copy of the legal notice, Ex.PW1/7, established the fact that the
tenancy stood terminated. Postal receipts have also been placed on record.
The evidence of the plaintiffs has gone unrebutted. Accordingly, the
present suit is decreed for possession in favour of the plaintiffs and
against the defendants with respect to the suit property, namely, shop
bearing No.73 and 36 Central Market, Lajpat Nagar-II, New Delhi
comprising of basement and ground floor, comprising of first floor and
second floor with terrace respectively. Plaintiffs shall be entitled to arrears
of rent amounting to Rs.22,27,500/- with interest at the rate of 12% p.a.
from the date amount is due till realization. The plaintiffs would also be
entitled to future mesne profit at the same rate till the date of handing over
possession. The prayer with regard to mesne profit at the rate of
Rs.50,000/- per day has been given up. The suit is decreed with costs.
Let decree sheet be drawn up accordingly.
G.S.SISTANI, J
FEBRUARY 16, 2012
sjs
