Sh. Vikas Gupta vs Sh. Ravi Raj Sabhrawal
2012 Latest Caselaw 1946 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.140 /2012
%                                                      21st March, 2012

SH. VIKAS GUPTA                               ..... Appellant
              Through:              Mr. S.N. Gupta, Advocate.

                      versus

SH. RAVI RAJ SABHRAWAL                            ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal (RFA)

filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial Court dated 3.12.2011 decreeing the suit of

the respondent/plaintiff/landlord for possession and mesne profits. The

mesne profits which have been awarded are only at the agreed rate of rent

between the parties.

2. In the city of New Delhi, those tenanted premises whose rents

are above ` 3,500/- per month are not governed by the Delhi Rent Control

Act, 1958. The monthly tenancy of such premises can be terminated by

serving of a legal notice under Section 106 of Transfer of Property Act,

1882.

3. The facts of the case are that the appellant/defendant took on

lease from the respondent/plaintiff under a lease deed dated 21.3.2000 the

suit premises admeasuring 250 sq. yds. forming part of plot No.8, Gali

No.4, Friends Colony, Industrial Area, G.T. Road, Shahdara, Delhi-32.

The lease was for a period of 11 months and the rent was fixed at `

16,500/- per month. It was pleaded that the appellant/defendant did not

make payment of rent from 1.5.2006 and because of which arrears

accumulated to ` 3,79,500/-. The respondent/plaintiff sent a legal notice

dated 27.9.2007 terminating the tenancy, however, the appellant/defendant

neither paid the arrears of rent nor vacated the premises, resulting in filing

of the subject suit.

4. The appellant/defendant claimed that rate of rent was not `

16,500/- per month but was only ` 5,000/- per month. It was pleaded that

the tenancy commenced under the lease deed executed on 25.9.1997,

however, after the original period of 11 months it was extended orally. It

was pleaded that the rent had been paid regularly upto September, 2007 and

whereafter the appellant/defendant was forced to deposit the rent in a

petition under Section 31 of the Punjab Relief of Indebtedness Act, 1934

and under which statute a tenant can deposit rent against a landlord. It was

pleaded that the suit be dismissed.

5. After completion of pleadings, the trial Court framed the

following issues:-

"1. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD

2. Whether the plaintiff is entitled to the recovery of possession of the factory shed in question? OPP

3. Whether the plaintiff is entitled to recover arrears of rent of ` 3,79,500/- for the period w.e.f. 01.05.2006 to 31.03.2008? OPP

4. Whether the plaintiff is entitled to recover damages/mesne profits? If so, at what rate and for which period? OPP

5. Relief."

6. The respondent/plaintiff proved on record the site plan as

Ex.PW1/1, lease deed as Ex.PW1/2, legal notice terminating tenancy dated

27.9.2007 as Ex.PW1/3 and reply dated 5.10.2007 given to the legal notice

as Ex.PW1/4.

7. With regard to entitlement to recovery of possession, the

relevant issue framed by the trial Court was issue No.2. With regard to this

issue, the trial Court held that the premises were outside the protection of

Delhi Rent Control Act, 1958 even if the rent is assumed to be only `

5,000/- per month as pleaded by the appellant/defendant and therefore the

tenancy was validly terminated by serving of a notice under Section 106 of

the Transfer of the Property Act, 1882. The trial Court hence decreed the

suit for possession. Though the lease deed, Ex.PW1/2 may not be a

registered document, however, the same was only for a period of 11

months and therefore it was not required to be registered.

8. With regard to issue No.3 and the rate of rent, the trial Court

observed that the rent which was stated in this lease deed was admittedly `

16,500/- per month, and therefore, the trial Court arrived at a finding, and

with which I agree, that the rate of rent was ` 16,500/- per month and not `

5,000/- per month. The trial Court has also held that rent which was

payable at ` 16,500/- per month was in arrears inasmuch as the case of the

appellant/defendant was that payments were made through cheques or

through bank draft, however, the appellant/defendant, though could have,

did not place on record its bank statement to show that in fact payment of

rent was made as claimed. Accordingly, the trial Court directed the

payment of arrears of rent from 1.5.2006 till 31.3.2008 and thereafter

mesne profits at the admitted rate of rent of ` 16,500/- per month. I do not

find any illegality and perversity in the impugned judgment inasmuch as

the lease deed admittedly entered into between the parties was for a period

of 11 months, and which lease deed Ex.PW1/2 mentioned the rate of rent at

` 16,500/- per month. The appellant/defendant claimed payment of arrears

of rent by means of cheques or bank drafts, but, did not file its bank

statement and hence the trial Court disbelieved the stand of the

appellant/defendant. Since admittedly there is no registered lease deed

between the parties, the tenancy was a monthly tenancy and consequently

on service of a notice under Section 106 of Transfer of Property Act, 1882,

the monthly tenancy was terminated and the appellant/defendant was bound

to hand over actual physical vacant possession to the landlord.

9. This matter was argued yesterday and it was put up for today

as the counsel for the appellant was to take instructions as to whether the

appellant wanting a reasonable time to vacate the premises. Counsel for

the appellant states that he has no instructions from the appellant. In any

case the appellant has already stayed in the suit premises almost for five

years after termination of tenancy and hence the appellant has already used

the process of law to prolong his unauthorized occupation of the tenanted

premises.

10. In view of the above, there is no merit in the appeal which

therefore is dismissed.

VALMIKI J. MEHTA, J MARCH 21, 2012 Ne