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2012 DIGILAW 613 (DEL)

Satish Kumar v. Ess Aay Fashion India Pvt. Ltd.

2012-02-16

G.S.SISTANI

body2012
JUDGMENT G.S. SISTANI, J. 1. Plaintiffs have filed the present suit for possession, recovery of arrears of rent, mesne profit, damages and interest. Defendants were served with the summons in the suit, as is evident from the order of the Joint Registrar dated 27th August, 2011. None had chosen to appear on behalf of the defendants neither any written statement was filed. Defendants were accordingly proceed ex parte on 3rd January, 2012. Plaintiffs were directed to file ex parte evidence. The plaintiffs have filed the evidence of both the plaintiffs. Both PW1 and PW2 have deposed on the lines of the plaint. 2. As per the plaint, the plaintiff No.1 is completely blind and both the CS (OS) 18632011 2 plaintiffs are entirely dependent on rent received from the suit property, namely, shop bearing No.73 and 36 Central Market, Lajpat Nagar-II, New Delhi comprising of basement and ground floor, comprising of first floor and second floor with terrace respectively (hereinafter referred to as “suit property”). Plaintiffs are stated to be joint owners of the suit property. Counsel for the plaintiffs submits that although the building is one yet separate numbers have been given. 3. The defendants approached the plaintiffs for taking the suit property on lease and accordingly a lease deed dated 12th May, 2008 Ex.PW1/2) was executed between the parties for a period of three years to be extended for another two terms of three years each on various terms mentioned in the lease deed. Monthly rent of the suit property was fixed at Rs.2,75,000/-. At the time of signing of the lease, the defendants also handed over post dated cheques to the plaintiffs towards future rent. However, the post dated cheque for the month of March, 2010 was dishonoured on account of payment being stopped. Similarly, post dated cheque towards half rent for the month of February and March 2010 was also dishonoured on account of payment having been stopped. 4. The defendants defaulted in making the payment of the rent for the period January to August, 2010, which led to the filing of a civil suit, which suit stands decreed on 11th March, 2011. Decree dated 02.04.2011 is Ex.PW-1/5. The plaintiffs thereafter terminated the lease of the suit premises by issuing a legal notice dated 11th April, 2011 and also claimed arrears of rent along with interest, service tax, electricity and water charges etc. Decree dated 02.04.2011 is Ex.PW-1/5. The plaintiffs thereafter terminated the lease of the suit premises by issuing a legal notice dated 11th April, 2011 and also claimed arrears of rent along with interest, service tax, electricity and water charges etc. Copy of the legal notice has been placed on record and is marked as Ex.PW1/7. Postal receipts have been collectively marked as Ex.PW-1/8. 5. In the affidavit by way of evidence, it has been deposed that the defendants have not paid arrears of rent from September, 2010 till 11th May, 2011. As per the evidence, the following amounts are due from the defendants separately :- BALANCE RENT FROM SEPTEMBER, 2010 TO MAY, 2011 IN FAVOUR OF DEPONENT Month September,2010 1,37,500/- ActualRent (50% share) Rateof TDS 10% RentPayable 1,23,750/- RentReceived Not Paid RentReceived 1,23,750/- November,2010 October,2010 December,2010 1,37,500/- 1,37,500/-1,37,500/- 10% 10% 10% 1,23,750/-1,23,750/-1,23,750/- Not Paid Not Paid Not Paid 1,23,750/-1,23,750/-1,23,750/- February,2011 January,2011 March, April, May, TOTAL ARREARS OF RENT 1,37,500/-1,37,500/-1,37,500/-1,37,500/-1,37,500/- 10% 10% 10% 10% 10% Rs. Eleven Lakhs Thirteen Thousand Seven Hundred Fifty Only 1,23,750/-1,23,750/-1,23,750/-1,23,750/-1,23,750/- Not Paid Not Paid Not Paid Not Paid Not Paid 1,23,750/-1,23,750/-1,23,750/-1,23,750/-1,23,750/-11,13,750/- BALANCE RENT FROM SEPTEMBER, 2010 TO MAY, 2011 IN FAVOUR OF PLAINTIFF NO.2 TILAK RAJ Month ActualRent (50% share) Rateof TDS RentPayable RentReceived BalanceAmount of Rent September,2010 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/- October,2010 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/- November,2010 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/- December,2010 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/- January,2011 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/- February,2011 1,37,500/- 10% 1,23,750/- Not Paid 1,23,750/- April, 2010 1,37,500/-10% 1,23,750/-Not Paid May, 2010 1,37,500/-10% 1,23,750/-Not Paid TOTAL ARREARS OF RENT Rs. Eleven Lakhs Thirteen Thousand Seven Hundred Fifty Only 1,23,750/-1,23,750/-11,13,750/- 6. Counsel for the plaintiffs submits that as far as the prayer for mesne profit is concerned, the plaintiffs shall be satisfied if mesne profit are awarded at the rate of last paid rent by the defendants. It is also submitted that the plaintiffs are entitled to interest at the rate of 25% p.a. in terms of agreement between the parties. However, the counsel for the plaintiffs submits that the plaintiffs shall be satisfied if interest at the rate of 12@ is granted on the arrears of rent. 7. I have heard the learned counsel for the plaintiffs and carefully perused the affidavit by way of evidence. However, the counsel for the plaintiffs submits that the plaintiffs shall be satisfied if interest at the rate of 12@ is granted on the arrears of rent. 7. I have heard the learned counsel for the plaintiffs and carefully perused the affidavit by way of evidence. I have also perused the lease deed (Ex.PW-1/2), which has been placed on record, the legal notice terminating the tenancy of the defendants (Ex.PW-1/7) and the postal receipts (Ex.PW-1/8) evidencing the legal notice having been posted to the defendants. The plaintiffs have been able to establish that they are the owners of the suit property, which was given on lease to the defendants in terms of the lease deed dated 12th May, 2008, Ex.PW-1/2. As per the lease the rate of rent was fixed at Rs.2,75,000/-to be paid to the plaintiffs jointly. Copy of the legal notice, Ex.PW1/7, established the fact that the tenancy stood terminated. Postal receipts have also been placed on record. The evidence of the plaintiffs has gone un-rebutted. Accordingly, the present suit is decreed for possession in favour of the plaintiffs & against the defendants with respect to the suit property, namely, shop bearing No.73 and 36 Central Market, Lajpat Nagar-II, New Delhi comprising of basement and ground floor, comprising of first floor & second floor with terrace respectively. Plaintiffs shall be entitled to arrears of rent amounting to Rs.22,27,500/-with interest at the rate of 12% p.a. from the date amount is due till realization. The plaintiffs would also be entitled to future mesne profit at the same rate till the date of handing over possession. The prayer with regard to mesne profit at the rate of Rs.50,000/-per day has been given up. The suit is decreed with costs. Let decree sheet be drawn up accordingly.