Neeraj Madan & Ors vs Expo Thermocontrols Pvt Ltd
2016 Latest Caselaw 1935 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                                 R.F.A. No.352/2008

                                           Decided on : 10th March, 2016

NEERAJ MADAN & ORS                                    ...... Appellants
            Through:                Mr. Suresh C. Gupta & Mr. Birendra K.
                                    Mishra, Advocates.

                         Versus

EXPO THERMOCONTROLS PVT LTD             ...... Respondent
            Through: Mr. Syed Mehdi Imam & Mr. Rachit
                     Mittal, Advocates.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular first appeal filed by the appellant against the judgment and decree dated 4.4.2008 by virtue of which the suit for possession and damages filed by the respondent/plaintiff was decreed.

2. Briefly stated the facts of the case are that the respondent company had filed a suit for possession through its Director in respect of a portion of premises bearing No.9206, Gali Zameerwali, Nawabganj, Delhi. It was alleged in the plaint that the aforesaid property was purchased in the name of the company vide sale deed dated 3.4.1992 which was duly got registered with the Sub-Registrar's office. The Directors of the respondent company were known to the defendant Vikramjit Madan and because of this acquaintance, he was permitted to occupy a portion of the aforesaid premises which is more particularly shown in red in the site

plan attached to the plaint. Since the defendant did not vacate the premises despite repeated request, consequently the respondent company asked the defendant to vacate the premises and also as an abundant caution issued a notice under Section 106 of the Transfer of Property Act requiring him to vacate. Since the defendant did not oblige by vacating the premises the respondent/plaintiff filed a suit for possession bearing No.63/2005 and also claimed damages @ Rs.7,500/- per month. The defendant contested the suit and filed his written statement claiming himself to be the tenant under the respondent/plaintiff on a monthly rent of Rs.500/-. It was also alleged by him that he had paid a sum of Rs.5 lacs by way of pagri to the respondent/plaintiff for which no receipt was either issued for the pagri or even for the rent. It was, therefore, alleged by the defendant that as he was a tenant and he was protected by Section 50 of the Delhi Rent Control Act, 1958.

3. On the pleadings of the parties, following issues were framed :-

"1. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP

2. Whether the plaintiff is entitled to a decree of damages? If so, at what rate and for what period? OPP

3. Whether the suit has not been instituted by a duly authorized person? OPD

4. Whether the suit is without cause of action? OPD

5. Whether the suit is barred by Section 50 of Delhi Rent Control Act? OPD

6. Whether the suit has not been valued properly for the purpose of court fees? OPD

7. Relief."

4. The respondent/plaintiff in respect of its case examined Director Mahesh Chand Gupta and thereafter one V.K. Gupta from the Union Bank of India as PW-1 and PW-2. As against this, the defendant, Vikramjit Madan, had died at the beginning of the trial itself because of which one of the legal heirs known as Neeraj Madan was substituted in place of all the legal heirs of the deceased appellant/defendant. Neeraj Madan is the only witness who testified in his own favour. Vide impugned order, all the five issues were decided by the learned ADJ against the appellant/defendant.

5. Feeling aggrieved by the judgment and the decree of possession, the appellant preferred the present appeal.

6. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent. The first contention of the learned counsel for the appellant has been that the suit which has been filed by the respondent/plaintiff is not instituted and filed by a duly authorized person. In this regard, it has been contended that Order 29 CPC gives method in which a suit can be filed by a company. It has to be done by a Principal Officer or the Company Secretary. It was also contended that the person so authorized, who institutes the suit, must be duly authorized by the Board of Directors and the resolution deserves to be placed on record. It was urged by the learned counsel that in the instant case, the so-called resolution which has been placed on record by the

respondent/plaintiff is signed by Mahesh Chand Gupta in the capacity of a Director authorizing him alone to institute, pursue and engage a counsel in the matter. It has been stated that this is not sufficient to establish that the suit has been validly instituted. In order to support his submission, the learned counsel for the appellants has relied upon the judgment of Delhi High Court in Rajghria Paper Mills Ltd. vs. The General Manager, Indian; AIR 2000 Delhi 239 and M/s. Nibro Limited vs. National Insurance Company Ltd.; AIR 1991 Delhi 25.

7. I have gone through both these judgments. These judgments are not helpful in any manner whatsoever to the appellants. The reason for this is that one of the issue which was framed was "whether the suit has been instituted by a duly authorized person? OPD".

8. The onus of proof of this issue was essentially on the appellant/defendant himself and the learned ADJ has noted that not even a single witness has been examined by the appellant/defendant in order to discharge his initial onus. In the absence of that, it cannot be said that the appellant should be permitted to succeed on this ground that the suit has not been validly instituted. On the contrary, the respondent/plaintiff has examined Mahesh Chand Gupta as the witness. He has testified clearly that he was duly authorized by the Board of Directors by passing a resolution to institute and pursue the suit. Copy of the Resolution is exhibit PW 1/1. He has been cross-examined also but even in the cross- examination, no suggestion has been given by the appellant/defendant that the suit has not been validly instituted. Further, in Rajghria's case (supra), the opposite party had come to the High Court on the ground of suit not having been instituted by a duly authorized person. In the said

case, the Board Resolution was not placed on record. As against this, in the present case, resolution of the Board of Directors has been placed on record and even the witness himself has testified.

9. So far as the other issue of the quantum of damages and the appellants' predecessor-in-interest being a tenant and the consequent bar of jurisdiction under Section 50 of the Delhi Rent Control Act is concerned, I feel, on this score also, the appellant/defendant does not have any case. The factum of the appellants' predecessor-in-interest being a tenant on the monthly rent of Rs.500/- was a fact which was especially within the knowledge of a party, who was inducted as a tenant as there was no written agreement. But this aspect has not been proved by the appellant/defendant. On the contrary, he has taken the plea that a sum of Rs.5 lacs was given by way of pagri to the landlord but no documentary proof was produced. The learned trial court has rightly disbelieved this aspect of the matter by contending that admittedly the predecessor-in-interest of the appellant was an income-tax payee and was filing his income-tax return. Therefore, this amount of Rs.5 lacs would have been reflected in the income-tax return. Moreover, he was a business man and it was observed by the court that no business man would give a sum of Rs.5 lacs by way of cash without obtaining a proper receipt for the same. As regards a sum of Rs.500/- being paid as rental is concerned, the court did not believe the said version also of the witness by observing that this is only a ploy to bring the case within the mischief of tenant under the Delhi Rent Control Act.

10. I do not find that there was any illegality, infirmity or any error apparent on the face of the record which would persuade the undersigned

to hold a different view. The appellant has not given even the suggestion to the witnesses explaining as to what his case was. Therefore, this aspect clearly goes against the appellant/defendant. As regards the quantum of damages, it may be pertinent here to mention that the respondent/plaintiff had claimed damages @ Rs.7,500/- per month. The Director of the respondent/plaintiff has testified that the amount of damages/mesne profits which the premises of a like nature would fetch is to the tune of Rs.7,500/- per month and accordingly he has claimed damages @ Rs.7,500/- per month.

11. The learned trial judge has rightly observed that as no documentary evidence has been adduced by the respondent/plaintiff to establish that the premises of a like nature would fetch a sum of Rs.7,500/- per month, therefore, he has taken a very conservative view of the entire matter and held that only a sum of Rs.2,000/- would be good enough to meet the ends of justice to be paid by way of damages. I do not find any infirmity in this figure of Rs.2,000/- which has been fixed by the learned trial judge by way of damages. The learned counsel for the appellant/defendant has contended that this sum of Rs.2,000/- is also excessive and the actual rentals which the premises in question would have fetched was much lesser than the one which was fixed by the court. It was also contended by the learned counsel that no cogent evidence has been produced by the respondent/plaintiff in this regard.

12. I am also tempted to refer to the judgment passed in case titled M/s. Roy & Co. and Another vs. Smt. Nani Bala Dey & Others; AIR 1979 Calcutta 50 which has been relied upon by the appellant to contend that the appellant/defendant has to stand on his own feet and he cannot take

advantage of the deficiencies in the case of the respondent/plaintiff. I have gone through the said judgment. There is no dispute about the fact that the case of the respondent/plaintiff has to be established by the appellant/defendant himself. But at the same time, one who asserts must prove. Since, in the instant case, the appellant/defendant was contending that he was a tenant in respect of the suit premises, therefore, essentially onus was on the appellant to establish that the rent of the premises was less than Rs.2,000/- which he has failed to do so.

13. I have carefully considered the submissions made by the learned counsel for the appellant/defendant and have gone through the impugned judgment. I find myself unable to agree with the line of argument given by the counsel for the appellant. On the contrary, I feel that the analysis of evidence which has been produced by the parties has been correctly done by the learned trial court wherein it has been observed that the appellant has failed to establish that the damages of the premises in question ought to be at the lesser rate than a sum of Rs.2,000/- which has been fixed by the court.

14. For the reasons mentioned above, I feel that the appeal filed by the appellants is without any merit and the same is dismissed.

V.K. SHALI, J.

MARCH 10, 2016 'AA'