Final Order 10

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. BRIJESH KUMAR GARG,
DISTRICT JUDGE (COMMERCIAL COURT)-01 :
SHAHDARA, KARKARDOOMA COURTS: DELHI
CS (Comm.) No. 284/24
CNR No. DLSH01-003304-2024
SHRI MOHIT WADHAWAN
S/o Shri Jugal Kishore Wadhawan,
R/o C-4/6, Krishna Nagar,
Delhi-110 051.
Aged About 35 years
Mobile No. 9711223322
......Plaintiff
Versus
SHRI GOPAL KRISHAN SHARMA
S/o Shri Manohar Lal Sharma,
R/o 174, Gopal Park,
Chander Nagar, Delhi-110 051.
Also At :
First Floor Portion in
Property No. C-4/6,
(Block No.C-4, Plot No.6),
Krishna Nagar,
Delhi-110 051.
Mobile No. 7838467090
......Defendant
Date of Filing : 14.05.2024
Date of final arguments : 27.09.2024
Date of Judgment : 22.10.2024
JUDGMENT
1. The present commercial suit for recovery of possession
and arrears of rent, worth Rs.4,41,885/-, alongwith pendentelite
and future interest, has been filed, on behalf of the plaintiff,
CS(Comm.) 284/2024 page 1 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
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wherein, it is stated that the plaintiff is the owner of the
immovable property bearing No. C-4/6, Block-C, Plot No.6,
Krishna Nagar, Delhi-51. Whereas, the defendant was his tenant
in respect of the first floor portion of the said property, as shown
in red colour in the site plan annexed with the plaint.
2. It is further stated in the plaint that the tenanted premises
was let out to the defendant, by virtue of a registered lease deed
dated 17.08.2021, and as per the said registered lease deed, the
tenanted premises also involve 1/4th area in the stilt parking at
the ground floor portion of the aforesaid property. But, the
possession of the same was handed over back to the plaintiff, by
the defendant, on 01.08.2022, and therefore, the tenanted
premises does not include the stilt parking area.
3. It is further stated in the plaint that the lease deed dated
17.08.2021, was executed for a period of three years w.e.f.
01.08.2021 till 31.07.2024, at a monthly rent of Rs.80,000/-, and
the same was let-out for the commercial purposes only, i.e., for
running a gym (fitness centre).
4. It is further stated in the plaint that after passage of about
one year, from the date of execution of the lease deed between
the parties, the defendant approached the plaintiff and showed his
financial difficulty and requested the plaintiff to reduce the rent
to Rs.55,000/- per month, w.e.f. 01.08.2022 and also handed over
the vacant physical possession of the 1/4th area of the stilt
parking to the plaintiff. The defendant agreed that the tenanted
premises shall comprise of only the first floor portion of the
aforesaid property, at reduced rate of rent of Rs.55,000/- per
CS(Comm.) 284/2024 page 2 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
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month w.e.f. 01.08.2022. It was also agreed that the rate of rent
shall be increased by 10% after the lapse of two years of tenancy.
5. It is further stated in the plaint that the rate of rent was
increased by 10% w.e.f. 01.08.2023 at Rs.60,000/- per month.
But, the defendant agreed to enhance the rent w.e.f. 01.11.2023
only.
6. It is further stated in the plaint that the plaintiff used to
issue rent receipts, as and when he received the rent from the
defendant. It is further stated that the defendant had defaulted in
paying the rent w.e.f. October 2023, besides other arrears and
stopped paying rent w.e.f. October, 2023.
7. It is further stated in the plaint that despite oral requests of
the plaintiff, the defendant had failed to pay the rent w.e.f.
01.10.2023, and therefore, a legal notice dated 09.02.2024 was
served upon the defendant, whereby, the tenancy of the defendant
was terminated, due to non payment of rent and arrears of rent
w.e.f. October, 2023. The defendant was also directed to
handover the vacant physical possession of the tenanted
premises, to the plaintiff, within 15 days from the date of legal
notice.
8. It is further stated in the plaint that the defendant sent a
false and frivolous reply to the legal notice, on 17.02.2024. It is
further stated that the tenancy of the defendant was terminated by
virtue of the legal notice dated 09.02.2024, and therefore, the
plaintiff is entitled for a decree of possession, in respect of the
tenanted premises, and hence, the present suit.
CS(Comm.) 284/2024 page 3 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
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9. It is further stated in the plaint that the defendant is in
arrears of rent w.e.f. October, 2023, till issuance of the notice,
and accordingly, the plaintiff is entitled to recover an amount of
Rs.4,41,885/- from the defendant.
10. It is further stated in the plaint that after termination of his
tenancy, vide legal notice dated 09.02.2024, the defendant is in
illegal and unauthorized occupation of the tenanted premises,
w.e.f. 10.04.2024, and therefore, the defendant is also liable to
pay the use and occupation charges @ Rs.60,000/- per month
w.e.f. 10.04.2024 till the vacation of the tenanted premises. It is
further stated that vide legal notice dated 09.02.2024, the plaintiff
had claimed the use and occupation charges @Rs.5,000/- per
day. But, he is not claiming the said amount and at present, he
was claiming the use and occupation charges only @ Rs.60,000/-
per month.
11. It is the further stated in the plaint that the plaintiff has also
filed an application before the District Legal Services Authority,
East District, Karkardooma Courts, Delhi, for pre-litigation
mediation, as per the Commercial Courts Act. But, the defendant
failed to appear before the said authority, and therefore, a Non-
Starter Report was issued to the plaintiff, on 02.05.2024. It has
been prayed that a decree for recovery of possession of the
tenanted premises, alongwith money decree for recovery of
arrears of rent worth Rs.4,41,885/- and recovery of use and
occupation charges @ Rs.60,000/- per month w.e.f. 10.04.2024,
alongwith costs of the suit be passed in favour of the plaintiff and
against the defendant.
CS(Comm.) 284/2024 page 4 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
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12. After filing of the present suit, the summons of the suit for
settlement of issues were duly served upon the defendant, on
29.06.2024, and thereafter, the defendant appeared before the
court, for the first time, on 03.07.2024, and filed his written
statement, wherein, it was stated that the plaintiff has not
approached the court with clean hands and has suppressed the
material facts from the court. It is further stated that the plaintiff
has filed the present suit with malafide intention to extort money
illegally, from the defendant. However, he has admitted the
execution of the registered lease deed dated 17.08.2021. But, has
stated that there were no arrears of rent against the defendant. It
is further stated that the defendant has been paying the rent
regularly, since the inception of the tenancy, month by month,
without and delay and default, and therefore, there is no question
of clearing any arrears of rent
13. It is further stated in the written statement that the plaintiff
has no legal right, title or authority to terminate the tenancy of
the defendant, without any default on his part. It has been prayed
that the plaintiff is not entitled to get any relief from this court, as
claimed in the present suit, and therefore, the suit of the plaintiff
may be dismissed with heavy costs.
14. Despite opportunity, no replication to the written statement
of the defendant, was filed on behalf of the plaintiff, and on
12.08.2024, first case management hearing was conducted and
from the pleadings of the parties, the following issues were
framed, as under:
CS(Comm.) 284/2024 page 5 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
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1. Whether the plaintiff is entitled for recovery of a sum of
Rs.4,41,885/-, from the defendant, as claimed in the plaint?
OPP
2. Whether the plaintiff is entitled for recovery of use and
occupational charges @Rs.60,000/- p.m. w.e.f.
10.04.2024, as claimed in the plaint? OPP
3. Relief.
15. It is relevant to mention here that on 03.07.2024, when the
written statement was filed on behalf of the defendant, it was
reported by the Ld. Counsels for the parties that the matter stands
amicably settled between the parties, qua the claim of the
plaintiff regarding possession of the tenanted premises. On
03.07.2024, the statements of the parties were also recorded in
this regard and in view of the statements of the parties regarding
the settlement qua the claim of possession of the tenanted
premises, a compromise decree for possession of the tenanted
premises was passed by the court on 03.07.2024. In pursuance to
the compromise decree, the defendant had handed over the
physical vacant possession of the tenanted premises to the
plaintiff on 12.08.2024.
16. During case management hearing on 12.08.2024, a Local
Commissioner was also appointed to record the evidence of the
parties and to submit the complete report, with record of
evidence. The Ld. Local Commissioner submitted her report
with record of evidence on 06.09.2024. During the trial, the
plaintiff has examined himself as PW-1. Whereas, despite ample
opportunities, no evidence was led by the defendant.
17. After completion of trial, final arguments were addressed
CS(Comm.) 284/2024 page 6 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
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by Sh. Vikram Baweja, Advocate, for the plaintiff and Sh. Jatin
Malhotra, Advocate, for the defendant, on 27.09.2024.
18. During the course of arguments, the Ld. Counsel for the
plaintiff has stated that after handing over the possession of the
suit/tenanted premises by the defendant, to the plaintiff, on
12.08.2024, the prayer of the plaintiff regarding a decree for
possession in respect of the tenanted premises stands satisfied,
and therefore, on 12.08.2024, no issue in this regard was framed
by the court. He has argued that the execution of the registered
lease deed dated 17.08.2021 is an admitted fact and execution of
the registered lease deed dated 17.08.2021 has not been denied
by the defendant. He has further argued that during his evidence,
the plaintiff has proved his case and during the trial, the
defendant has not led any evidence regarding payments of rent to
the plaintiff, and therefore, the suit of the plaintiff may be
decreed in favour of the plaintiff and against the defendant. The
Ld. Counsel for the plaintiff has also filed a written synopsis/
arguments, on behalf of the plaintiff.
19. On the other hand, the Ld. Counsel for the defendant has
argued that the defendant was paying the rent to the plaintiff,
regularly, on each and every month. But, he has admitted that
the defendant has failed to lead any evidence during the trial, in
this regard and no rent receipt has been placed on record by him.
The Ld. Counsel for the defendant has failed to file any written
arguments, despite opportunity.
20. I have carefully perused the case file and I have also given
my considered thoughts to the arguments addressed by the Ld.
CS(Comm.) 284/2024 page 7 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
-- 7 of 14 --
Counsels for the parties. I have also perused the written
arguments filed by the Ld. Counsel for the plaintiff. My findings
on the various issues are as under:
Issue No. 1
Whether the plaintiff is entitled for recovery of a sum of
Rs.4,41,885/-, from the defendant, as claimed in the plaint?
OPP
21. The burden to prove this issue lies on the plaintiff. In
support of his contentions, the plaintiff has examined himself, as
PW-1, and has filed his affidavit Ex.PW1/1A, wherein, he has
reproduced the entire contents of the plaint. The plaintiff has
reiterated that he was the owner/landlord of the suit property and
he letout the suit premises to the defendant, vide registered lease
deed dated 17.08.2021. A copy of the registered lease deed has
been placed on record as Ex.D-2. The site plan of the suit
premises has been placed on record as Ex.D-1. The execution of
this registered lease deed is not in dispute and was not denied by
the defendant, during the trial.
22. It is relevant to mention here that on 03.07.2024, it was
reported by the parties and their Ld. Counsels that the parties had
arrived at an amicable settlement, regarding the possession of the
tenanted premises, and accordingly, on the statements of the
parties and in view of the settlement, a compromise decree was
passed in favour of the plaintiff and against the defendant,
regarding the possession of the tenanted premises, vide order
dated 03.07.2024. In compliance of the compromise decree
CS(Comm.) 284/2024 page 8 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
-- 8 of 14 --
dated 03.07.2024, the defendant handed over the vacant physical
possession of the suit premises to the plaintiff on 12.08.2024.
23. Perusal of the record further shows that in his affidavit
Ex.PW1/1A, the plaintiff has further stated that on the request of
the defendant, the rate of rent was reduced from Rs.80,000/- per
month to Rs.55,000/- per month w.e.f. 01.08.2022. It is further
stated that the rate of rent was increased by 10%, after the lapse
of two years of the tenancy period, i.e., w.e.f. 01.08.2023, and
accordingly, the rate of rent was enhanced to Rs.60,000/- per
month w.e.f. 01.08.2023.
24. Perusal of the record further shows that in his affidavit
Ex.PW1/1A, it is further stated by the plaintiff that the defendant
had continously defaulted in paying the rent w.e.f. October,
2023, besides certain other arrears. Therefore, as per Clause-20
of the lease agreement, the plaintiff was entitled to terminate the
tenancy of the defendant, in respect of the tenanted premises.
25. In his affidavit Ex.PW1/1A, the plaintiff has further stated
that the defendant has failed to pay the rent w.e.f. 01.10.2023 and
was enjoying the rented premises without paying the rent.
Therefore, a legal notice dated 09.02.2024, was served upon the
defendant, whereby, tenancy of the defendant was terminated for
non payment of rent, and accordingly, the defendant was directed
to pay the arrears of rent w.e.f. October, 2023 and to hand over
the vacant physical possession of the suit premises. But, the
defendant sent a false and frivolous reply to the said legal notice,
on 17.02.2024. A copy of the legal notice dated 09.02.2024 has
been filed on record as Ex.PW1/2 and the reply dated 17.02.2024
CS(Comm.) 284/2024 page 9 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
-- 9 of 14 --
has been filed on record as Ex.PW1/3. A copy of the last rent
receipt dated 03.07.2024 has been proved on record as
Ex.PW1/1.
26. In the affidavit Ex.PW1/1A, it is further stated that the
tenancy of the defendant was legally terminated vide notice dated
09.02.2024, and therefore, the defendant was liable to pay the use
and occupation charges for his illegal and unauthorized
occupation of the tenanted premises @Rs.60,000/- per month
w.e.f. 10.04.2024, till the vacant possession of the suit premises
was handed over by the defendant to the plaintiff. It is further
stated that the plaintiff was therefore entitled to claim a total
amount of Rs.4,41,885/- along with use and occupation charges
@Rs.60,000/- per month we.f 10.04.2024 to 12.08.2024.
27. During the trial, the plaintiff was also subjected to cross-
examination on behalf of the defendant. During his cross-
examination, the plaintiff has denied the suggestion that the rate
of rent of the suit premises was Rs.55,000/- per month, from the
day one of the tenancy. He has denied the suggestion that the
defendant made timely payment of rent, in cash, and was not in
arrears of rent.
28. From the deposition of PW1, it is clear that the defendant
has admitted the execution of the registered lease deed dated
17.08.2021, which was executed between the parties, in respect
of the suit premises, for a period of three years w.e.f. 01.08.2021
to 31.07.2024 at a monthly rent of Rs.80,000/- per month. As per
the registered lease deed Ex.D-2, the rent was fixed at
Rs.80,000/- per month w.e.f. 01.08.2021 to 31.07.2023 and was
CS(Comm.) 284/2024 page 10 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
-- 10 of 14 --
agreed to have been increased @10% of the lease amount after
two years. Accordingly, the rate of rent was fixed at Rs.88,000
per month w.e.f. 01.08.2023 to 31.07.2024.
29. From the testimony of the plaintiff, it is also clear that the
defendant had himself handed over the possession of the stilt
parking to the plaintiff on 01.08.2022, and accordingly, the rent
of the tenanted premises was reduced/refixed at Rs.55,000/- per
month w.e.f. 01.08.2022 and the same was increased to
Rs.60,000/- per month w.e.f. 01.08.2023.
30. During the trial, the defendant has handed over the
possession of the suit premises to the plaintiff on 12.08.2024 and
has taken a defence that he was not in arrears of any rent, as he
used to make the timely payment of rent to the plaintiff, on
month to month basis. But, in support of his contentions, the
defendant has failed to examine any witness, including himself,
to prove his defence and to rebut the contentions of the plaintiff.
No rent receipt has been filed on record, by the defendant, for the
period w.e.f. 01.10.2023, till 12.08.2024. On the other hand,
during his examination, the plaintiff has filed the rent receipt
dated 03.07.2023 regarding payment of rent @Rs.55,000/- per
month for the month of May, 2023. This rent receipt has been
proved on record as Ex.PW1/1. Perusal of this rent receipt shows
that on 03.07.2023, the defendant was in arrears of rent of
Rs.86,000/-.
31. During the trial, the defendant has also taken a defence that
this rent receipt Ex.PW1/1 was not bearing his signatures. But,
perusal of his signatures on this rent receipt Ex.PW1/1 shows that
CS(Comm.) 284/2024 page 11 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
-- 11 of 14 --
the said signatures are very similar to his admitted signatures on
the registered lease deed Ex.D-2. No evidence has been led by
the defendant to establish on record that this rent receipt
Ex.PW1/1 was a forged and fabricated document.
32. During the trial, the defendant has also failed to leade any
evidence despite ample opportunities and has even failed to file
his affidavit, in evidence. Therefore, the defendant has failed to
establish any defence, in rebuttal, to the contentions of the
plaintiff. Accordingly, this issue is decided in favour of the
plaintiff and against the defendant.
Issue No.2
Whether the plaintiff is entitled for recovery of use and
occupational charges @Rs.60,000/- p.m. w.e.f.
10.04.2024, as claimed in the plaint? OPP
33. The burden to prove this issue also lies on the plaintiff. In
in his affidavit Ex.PW1/1A, the plaintiff has categorically stated
that the tenancy of the defendant was terminated vide legal notice
dated 09.02.2024, Ex.PW1/2. The said legal notice was replied
by the defendant on 17.02.2024 vide reply Ex.PW1/3. In the
legal notice, the plaintiff has again claimed the damages for
illegal and unauthorized use and occupation of the suit premises
@Rs.5,000/- per day, w.e.f. the month of October, 2023. Vide
legal notice Ex.PW1/2, the defendant was asked to vacate the suit
premises and handover the vacant physical possession of the suit
premises to the plaintiff within 15 days of the said notice,
CS(Comm.) 284/2024 page 12 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
-- 12 of 14 --
alongwith the arrears of rent and damages.
34. The defendant had vacated the suit premises only on
12.08.2024, in compliance to the compromise decree dated
03.07.2024. Therefore, this court is of the considered opinion
that after termination of his tenancy vide legal notice dated
09.02.2024, Ex.PW1/2, the defendant has remained in
unauthorized use and occupation of the suit premises w.e.f.
25.02.2024, for which the plaintiff is entitled to recover the use
and occupation charges from him.
35. In his affidavit Ex.PW1/1A, it is reiterated by the plaintiff
that the defendant was liable to pay use and occupation charges,
equivalent to the rent of the tenanted premises, @Rs.60,000/- per
month, till the vacation of the tenanted premises. It is an admitted
fact that the defendant has vacated the suit premises only on
12.08.2024, in compliance of the compromise decree, dated
03.07.2024. Therefore, this issue is accordingly decided in
favour of the plaintiff and against the defendant.
Relief
36. In view of my findings on the various issues, as discussed
above, the suit of the plaintiff is decreed for a sum of Rs.4,41,885/-,
towards arrears of rent, and a further amount of Rs.60,000/- per
month w.e.f. 25.04.2024 to 12.08.2024. The costs of the suit are
also awarded in favour of the plaintiff and against the defendant.
CS(Comm.) 284/2024 page 13 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
-- 13 of 14 --
The plaintiff is directed to file the deficient court fee within a
period of two weeks from today, and only thereafter, the decree
sheet be prepared.
It is ordered accordingly.
File be consigned to record room after due compliance.
Announced in the open Court
on this 22nd Day of October, 2024
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara Distt, KKD, Delhi
NR
CS(Comm.) 284/2024 page 14 of 14 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
-- 14 of 14 --