Harinder Dewan vs Ravi Dewan
2015 Latest Caselaw 6862 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                        Pronounced on: 11.9.2015

+ CS(OS) 1586/2005

HARINDER DEWAN                                                   ..... Plaintiff
            Through:                    Ms. Arpita Rai, Adv.

                                          versus

RAVI DEWAN                                                      ..... Defendant
                       Through:         Mr. Daljinder Singh, Adv.


CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

IA No.4537/2012

1. This application seeks the following reliefs:

"(1) The Defendant to file documents in support of the affidavit filed by him in compliance of order dated 10.10.2012.

(2) The plaintiff be allowed to shift in her share of the propert5r, i.e., H No.67O, Ajit Singh. Nagar, Mohali Phase-II Punjab and be direct to deal independently.

(3) Plaintiff be allowed to seek police help if the defendant obstructs her from entering the

I.A. 4537/2012 in CS(OS) 1586/2005 pg. 1 properties, i.e., C-550, Basement floor, Defence Colony New Delhi and H No.670, Ajit Singh Nagar, Mohali Phase-II Punjab.

(4) Defendant be also directed to pay to the Plaintiff her share of the rental month regularly directly in her bank account."

2. In the suit, the following preliminary decree was passed which recorded on 10.10.2011 that :

"However, in his cross examination, the defendant, Shri Ravi Dewan, who is present in the court has admitted that he had purchased the aforesaid property for the benefit of the plaintiff and she is entitled to 50% of the rental income from the aforesaid property after excluding the expenses incurred on the property. The defendant states that he has no objection to pay half of the rental income from H.No.670, Ajit singh Nagar Mohali Phase-II, Punjab to the plaintiff after deducting the expenditure incurred by him on its upkeep and maintenance. Since the defendant is willing to give half of the rental income from the aforesaid house to the plaintiff after deducting the expenditure incurred in its upkeep and maintenance with respect to rental income derived by the defendant with effect from 1st August, 2003."

3. The Plaintiff submits that the Defendant has failed to make any payments to her with respect to her share of the rental income apropos the suit property, i.e., H. No. 670, Ajit Singh Nagar Mohali

I.A. 4537/2012 in CS(OS) 1586/2005 pg. 2 Phase-II, Punjab. The Plaintiff further submits that the Defendant has showcased very low rental income and very high expenditure for the upkeep and maintenance of the suit property.

4. Contrary to paying the Plaintiff for her share of the rental income, the Defendant has demanded a sum of Rs. 3,21,885/- from the Plaintiff towards the expenditure for the maintenance of the property. The Defendant has filed an affidavit disclosing the accounts with respect to the aforesaid property, which were disputed by the Plaintiff.

5. On 4th March 2013, this Court had appointed a Local Commissioner to look into the aforesaid accounts and determine the sum payable to the Plaintiff, as directed in the preliminary decree.The Local Commissioner in his report stated that the Defendant had failed to produce any actual books of accounts with respect to the maintenance and expenses incurred apropos the aforesaid property. Furthermore, the Defendant's income tax returns had no mention of the maintenance and expenses incurred with regard to the aforesaid property. On 9th May 2013, the Defendant had submitted that he was receiving payments of rent by way of cash and not by cheque. However, no corroborative evidence was made available to the Local Commissioner to show that the expenditure claimed by the Defendant was indeed true. Moreover, the Local Commissioner was of the opinion that the expenditures furnished towards electricity supply are not genuine, since the amount of electricity utilized every month cannot be fixed at Rs. 5000/- due to the fact that there is

I.A. 4537/2012 in CS(OS) 1586/2005 pg. 3 always a variation in the consumption of electricity in any household.

6. The Local Commissioner further disbelieved the bills bearing no. 33 dated 10th August 2007, and no. 40 dated 2nd August 2007, by one Mr. Wazid, a contractor, on the ground that the lease deed produced by the Defendant mentioned that the onus of whitewashing the ground floor, including its interiors, would fall upon the tenants. Additionally, Clause 9 of the said lease deed stated that the tenants should undertake the cost of all minor repair work. In the circumstances, the Local Commissioner concluded as under:

"20. That as stated earlier in the absence of books of account containing day to day entries kept in the regular course of business and absence of income tax returns corroborating the expenditure and income from Mohali property there is no corroborative evidence of the expenditure claimed by the defendant or of the income received by way of rent."

7. Similarly, the Local Commissioner had disallowed the claim of the Defendant towards expenses for the caretaker, sweeper, gardener, electrician, plumber etc. and for electricity and water charges to the extent of Rs. 2,75,600/-. In the aforesaid circumstances, this Court would thus conclude that the expenses claimed by the Defendant could not be allowed due to want of corroborative evidence. Moreover, it is highly unlikely that the services of independent contractors such as plumbers and electricians are undertaken every month regularly. Their services are required only in exigencies of

I.A. 4537/2012 in CS(OS) 1586/2005 pg. 4 repair apropos the day to day functioning of the house, and they are not employed on a monthly payroll, as the Defendant has sought to contend.

8. The Defendant had, through his affidavit dated 7th December 2011, stated that the ground floor of the suit property was let out to the tenant on 1st November 2004 through a registered lease deed dated 13th November 2004, and the rent payments received till 30th November 2011 were to the tune of Rs. 11,02,230/-. He further stated that the money expended on the maintenance and upkeep of the Mohali property was to the tune of Rs 17,46,000/- during the same period. Therefore, by computation, a maintenance amount of Rs. 3,21,885/- has been demanded from the Plaintiff instead of any money being paid to her.

9. The learned counsel for the Plaintiff has referred to electricity bills from January 2004 till October 2011, which according to him totals to a sum of Rs. 5,00,000/- for 100 months, of which 50% was claimed to be paid by the defendant even though he was not residing in the suit property. This Court is of the view that no prudent landlord would agree to be burdened by costs of electricity, especially when he is not residing in or occupying the property, which has been let out to his tenants. There is no proof of such an agreement or document between the Defendant and his tenant whereby they are to split the cost of electricity.

10.At this stage, the learned counsel for the Defendant submits that he is ready and willing to allow the Plaintiff to bring in a tenant on the condition that that tenant will pay a higher amount of rent than the

I.A. 4537/2012 in CS(OS) 1586/2005 pg. 5 current tenant. However, the Plaintiff shall have freedom to bring in such prospective tenant only in the presence of counsel for the parties.

11.A receiver was appointed, who filed a report, which stated that the Defendant has not filed any statements from October 2011 to October 2012. As per the documents filed on 24 th November 2014, the rent paid to the Defendant from 1st September 2012 to 30th October 2013 is Rs. 3,73,274/-. Therefore, the total amount received by the Defendant from 1st August 2003 to 31st October 2013 would be Rs. 14,72,504/-, excluding the period of 13 months from October 2011 to October 2012. However, the Defendant has admitted to a receipt of Rs. 1,57,760/- per month from 1st November 2011 to 30th October 2012, which totals up to a sum of Rs. 16,31,264/- till date.

12.At this stage, the learned counsel for the Plaintiff does not press for any relief other than the relief of maintenance. She states that she will move the appropriate court for the relief of partition.

13.It is natural for an owner of a property to keep his property in a proper and habitable condition so as to attract prospective tenants. For this reason, the owner would incur costs for maintenance and upkeep of his property. However, in the present case, it is evident from the local commissioner's report that the Defendant has furnished untenable bills and thus shown inflated expenses to have been incurred by him, so as to reduce his liability to pay the Plaintiff her share of the rent money. Indeed, the Defendant has gone so far as to demand monies to be paid to him by the plaintiff. In view of the above, the Court is of the view that the bills presented by the

I.A. 4537/2012 in CS(OS) 1586/2005 pg. 6 defendant are unreliable and fictitious, and had been presented to the learned Local Commissioner only to circumvent the liability to share the rental income as per this Court's order dated 10 th October, 2011. The consequent proceedings pursued by the defendant are frivolous and contumacious for which costs of Rs. 50,000/- is imposed upon the defendant. It is also ordered that the Defendant shall pay 50% of the rent monies computed hereinabove, i.e., Rs. 8,15,632/- as per the preliminary decree dated 10.10.2011.

14.The application stands disposed off in the above terms.

September 11, 2015                                  NAJMI WAZIRI, J.
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I.A. 4537/2012 in CS(OS) 1586/2005                                 pg. 7