Order 5

Order Details: COPY OF ORDER
Pdf Text: CS 32/23
S M GUPTA DNA ANR (Senior Citizen) Vs. KUMAR NEERAJ
M SHANDILYA
06.10.2023 at 2.03 PM
Present: plaintiffs alongwith Sh. Suresh Aggarwal, Ld.
Advocate.
None for the defendant.
Replication alongwith applications under Order XII
Rule 6 of CPC and application under Order XXXIX Rule 10 read
with Order XV(A) of CPC filed on 18.09.2023 are taken on
record. It is stated that copy has already been supplied.
Be awaited for the defendant.
To be recalled after 10 minutes.
(Vijeta Singh Rawat)
Additional District Judge01
PHC/New Delhi/06.10.2023
At 2.16 PM
Present: plaintiffs alongwith Sh. Suresh Aggarwal, Ld.
Advocate.
Defendant alongwith Sh. Chander Bhushan Tiwari,
Ld. Advocate.
Fresh Vakalatnama has been filed on behalf of the
defendant. Taken on record.
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Adjournment is sought on behalf of the defendant
stating that he has engaged the counsel recently. Heard.
The Court is not inclined to adjourn the matter,
keeping the view the conduct of the defendant which is dilatory
as already observed vide order dated 04.10.2023 which is as
under:
‘...CS 32/23
S M GUPTA DNA ANR (Senior Citizen) Vs. KUMAR
NEERAJ M SHANDILYA
04.10.2023 at 10.39 AM
Present: plaintiff in person alongwith Sh. V.K. Mehto,
Ld. Proxy counsel for counsel for the plaintiffs.
None for the defendant.
Be awaited.
To be recalled at 11.10 AM.
(Vijeta Singh Rawat)
Additional District Judge01
PHC/New Delhi/04.10.2023
At 11.11 AM
Present: plaintiff in person.
None for the defendant.
Be awaited for the defendant.
To be recalled at 11.30 AM.
(Vijeta Singh Rawat)
Additional District Judge01
PHC/New Delhi/04.10.2023
At 11.27 AM
At this stage, Ms. Aashi Gupta, Ld. Proxy
counsel for counsel for the defendant has appeared. She has
been directed to inform the main counsel to join through VC.
(Vijeta Singh Rawat)
Additional District Judge01
PHC/New Delhi/04.10.2023
CS 32/23
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At 11.40 AM
Present: plaintiff in person alongwith Sh. V.K. Mehto,
Ld. Proxy counsel for counsel for the plaintiffs.
Ms. Aashi Gupta, Ld. Proxy counsel for counsel
for the defendant.
It is submitted on behalf of the defendant that Ld.
Counsel Sh. Akhilesh Kumar tried to join the VC but could not.
Heard.
The matter pertains to senior citizens aged about
73 years who is present in the Court and therefore, the Court is
not inclined to adjourn the matter.
Again, it is submitted on behalf of the defendant
that Ld. Counsel could not be contacted as his mobile phone is
switched off. Heard.
It is further stated on query that the defendant is
also not reachable. Heard.
Perusal of record shows that suit was filed in
January 2023. Service was effected upon the defendant on
04.02.2023. But the written statement only came to be filed on
27.04.2023 and as the plaintiffs did not oppose the application,
the delay was condoned on 15.07.2023 subject to cost.
The cost has been paid today to the plaintiff in
Court.
At request on behalf of the defendant, subject to
cost of Rs.10,000/ to be paid to the plaintiff by the defendant,
matter be listed on 06.10.2023 at 2.00 PM for arguments on
Order XII Rule 6 CPC (being suomoto initiated by the Court).
(Vijeta Singh Rawat)
Additional District Judge01
PHC/New Delhi/04.10.2023’
Cost imposed on last date of hearing which also has not been
paid.
Plaintiffs has been heard on Order XII Rule 6 CPC.
The record has been perused.
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At this stage, while deciding on Order XII Rule 6
CPC, the Court is required to consider whether the following
ingredients are being made out by way of admissions:
a) there exists relationship of landlord and tenant between the
parties;
b) notice of termination under Section 106 of The Transfer of
Property Act, 1882 was duly served;
c) the rate of rent exceeds Rs.3500/- when notice under
Section 106 of The Transfer of property Act was served.
Reliance is placed upon Sushil Ansal vs. Charanjit Singh Sole
Proprietor, Charmis Enterprise, CM(M) 952/2013 & C.M.
No.14389/2013 decided by the Delhi High Court on
22.11.2013.
Reverting to the facts of the present case, it is stated
that plaintiffs had let out Flat no.4460, Ground Floor, Sector B,
Pocket 5 & 6, Vasant Kunj, (hereinafter, referred to as the
‘demised premises’) vide registered lease dated 26.07.2016 w.ef.
01.08.2016 till 31.07.2019 at a monthly rent of Rs.19,000/
excluding all other charges with a condition of Rs.12,000/
enhancement per year. Additionally, fitting and fixtures were to
be paid for @Rs.9,000/ per month vide another agreement. It is
the case of the plaintiffs that on expiry of the lease period
aforementioned, despite an outstanding of Rs.1,40,400/, a new
lease deed dated 26.07.2019 was executed on assurance of the
defendant that he would clear the dues. A separate agreement for
fitting and fixture @Rs.9,000/ per month was also executed.
The tenure of lease was from 01.08.2019 till 31.07.2022.
However, only the amount mentioned in paragraph no.13 of the
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plaintiffs tantamounting to Rs.7,80,000/ has been paid by the
defendant (and not regularly) and the outstanding towards rent,
fitting and fixtures as on 30.03.2022 was Rs.3,11,600/. The
defendant also did not clear the outstanding of Rs.1,40,400/, as
well. Thus, a sum of Rs.4,52,000/ has been due from the
defendant for which legal notice dated 28.03.2022 and again on
26.06.2022 was served upon the defendant. According to the
plaint, the dues for the month of April to July @Rs.34,000/ per
month also tantamount to Rs.1,37,600/. On receipt of legal
notices, the defendant issued cheques as under:
a) Cheque no.000056 dated 25.08.2022, amounting to
Rs.1,55,000/ drawn on Bank of Baroda, Parliament Branch,
New Delhi.
b) Cheque no.000057 dated 27.08.2022, amounting to
Rs.1,60,000/ drawn on Bank of Baroda, Parliament Branch,
New Delhi.
c) Cheque no.000058 dated 29.08.2022, amounting to
Rs.1,65,000/ drawn on Bank of Baroda, Parliament Branch,
New Delhi,
which have also been dishonoured on 31.08.2022. It is stated
that the tenancy expired by efflux of time and also, by way of
termination notice dated 05.07.2022 which is duly served.
Accordingly, the present suit for possession, arrears of rent and
mesne profit to be filed.
By way of the written statement, it is not denied that
defendant was inducted into the suit property as a tenant vide rent
agreement 26.07.2019, however, the only defence raised is that
the tenancy agreement was oral w.e.f. July 2022 and the payment
was to be made in cash. It is denied that there is any outstanding
towards the plaintiffs of Rs.1,40,400/. It is stated that the
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second registered lease deed dated 26.07.2019 was only executed
on plaintiffs’ receiving the total outstanding. It is also denied
that the defendant has an obligation to pay Rs.7,80,000/ to the
plaintiffs towards rentals. As regards legal notice dated
28.03.2022, receipt of the same is acknowledged. However, it is
denied that legal notice dated 26.06.2022 was also served. It is
stated that the defendant settled the matter with the plaintiffs on
receipt of legal notice dated 28.03.2023. It is stated that the
plaintiffs have concocted a story for ejectment of the defendant
only because they wish to sell the property. As regards
dishonour of cheques, a plea has been taken that the plaintiffs
have misused the security cheques. It is stated that pursuant to
oral agreement on expiry of lease agreement on 31.07.2022, the
defendant has been paying rent regularly by way of cash.
The Court has considered the material on record.
As is apparent from the written statement, landlord
tenant relationship is admitted be it through written or oral
agreement. The execution of lease dated 26.07.2019 is also
admitted. As per the same, the agreed monthly rent was
Rs.22,500/ excluding all other charges and Rs.1,200/ rent will
be increased after completion of every one years. The second
agreement for fitting and fixture dated 01.08.2019 is also not
disputed. Even though, it is pleaded that pursuant to expiry of
lease agreement dated 26.07.2019, the defendant had entered
into an oral agreement with the plaintiffs, he has not mentioned
the rate of rent. However, the same would not be less than what
is mentioned in the lease agreement dated 26.07.2019 and is
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therefore, safely sufficient to bring the present dispute out of the
purview of Delhi Rent Control Act. All that now remains to be
considered is whether there has been a due termination of
tenancy. In this regard, even though, plaintiffs have averred that
the tenancy expired by efflux of time (qua which a defence of
oral agreement thereafter, has been set up), the plaintiffs also
issued legal notice dated 05.07.2022 which they state was duly
srved upon the defendant. In response thereof, the defendant has
merely stated that it is a matter of record and has not denied the
service of legal notice upon him. In defence of oral tenancy also
would not benefit the defendant because it would merely create a
month to month tenancy terminable by 15 days notice and filing
of the present suit and issuance of summons thereafter, is
sufficient compliance for termination of lease. Reliance is placed
upon Sushil Ansal vs. Charanjit Singh Sole Proprietor,
Charmis Enterprises (Supra) where following Nopany
Investments P. Ltd. v. Santosh Singh HUF (2008) 2SCC 728, it
has been held as under:
‘… filing of the eviction suit under general law itself
was notice to quit upon the respondents...’
Thus, qua the relief of possession, the suit is hereby,
decreed.
It is submitted on behalf of the plaintiffs that as
regards arrears of rent, at least since the defendant has also not
paid since the filing of the suit till today, he be also directed to at
least pay the damages at the rate of admitted rent of Rs.34,400/
till possession is handed over.
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On query, Ld. Counsel for the plaintiffs states that
mesne profit may be assessed at the rate of last admitted rent
which is Rs.34,400/. A separate statement to that effect has been
recorded.
The Court has inquired from the defendant whether
he has paid the rent/ mesne profit since the filing of the suit till
date. It has been stated by him that since the filing of the suit, he
has not made any payments to the plaintiffs. Accordingly, the
Court also deems it fit to pass a decree for recovery of mesne
profits, as well, at the rate of admitted rent w.e.f. 15 days since
service of summons i.e. 04.02.2023 till possession is handed over
@Rs.34,400/, as per the agreements dated 26.07.2019, second
agreement for fitting and fixtures dated 01.08.2019 and statement
of Ld. Counsel for the plaintiffs recorded today.
Preliminary decree sheet be prepared, accordingly
on filing of appropriate Court fees. An application under Order
XII Rule 6 of CPC is dismissed as infructuous.
However, as regards, arrears of rent and mesne
profits since termination till filing of suit is a matter of trial in
that regard parties are directed to file affidavit of admission and
denial of documents. Matter be listed for admission and denial of
documents and framing of issues on 10.11.2023.
Admission and denial of documents be conducted by
way of affidavit and same be exchanged by the next date of
hearing.
(Vijeta Singh Rawat)
Additional District Judge01
PHC/New Delhi/06.10.2023
CS 32/23
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