(1.) THIS is a suit for recovery of possession, rent and mesne profit. The plaintiff is alleged to be the owner of property bearing No. E-6, Maharani Bagh, New Delhi, rear portion of which comprising one drawing room and dinning room, one kitchen, one study room, one bathroom on the ground floor, four bedrooms with three attached bathrooms and one separate bathroom on the first floor, and bedroom with attached bathroom on the second floor with the terrace, one garage and one servant quarter above the garage, lawn in the rear with separate drive way was let out to the defendant for a period of two years commencing from 1st May, 2009, on a monthly rent of Rs 2,25,000/- vide lease deed dated 23rd April, 2009. The defendant was also required to pay electricity and water charges in addition to the agreed rent and hand over the original bills after payment. It is alleged that since the defendant defaulted in payment of rent as well as electricity and water charges, his tenancy was terminated vide legal notice dated 28th July, 2010. It is alleged that now a sum of Rs 10,50,000/- is due to the plaintiff towards arrears of rent for the period from 1 st May, 2010 to 31st October, 2010, after adjusting the amount of Rs 3,00,000/-, received for this period. The plaintiff has claimed the aforesaid amount along with Rs 46,550/- as interest on it @ of 12% per annum. The plaintiff has also claimed mesne profit/damages for use and occupation at the rate of Rs 10,000/- per day, in terms of the stipulation contained in the lease deed in this regard.
(2.) SINCE the written statement was not filed by the defendant, his right to file the written statement was closed and his defence was struck off vide order dated 1 st June, 2010. The plaintiff was, however, directed to file affidavit by way of evidence in order to satisfy the Court with respect to the merits of this case.
(3.) EX.PW-1/14 is the notice dated 28th July, 2010 sent by the plaintiff to the defendant through his counsel Shri Rakesh Aggarwal. The notice was sent vide Certificate of Posting EX.PW-1/16 and postal receipt, EX.PW-1/15. EX. PW-1/17 is the envelope in which the notice was sent to the defendant by registered post. A perusal of the endorsement made on the envelope would show that the notice was refused by the defendant. Refusal amounts to a valid service of notice and, thereby, the plaintiff duly served the notice EX.PW-1/14 on the defendant. The notice was also sent under Certificate of Posting. There is a presumption under Section 114 (f) of the Evidence Act that the notice was delivered to the addressee in the ordinary course of business of the Postal Department. In V.S.Krishnan v. Westfort Hi-Tech Hospital Ltd. (2008) 3 SCC 363, Supreme Court drew the presumption of service sent under certificate of posting for the purpose of Section 53(2) of the Companies Act, 1956. In Samittri Devi and Anr. v. Sampuran Singh and Anr. (2011) 3 SCC 556, Supreme Court observed that it will depend upon the facts of each case as to whether a presumption of service of a notice sent under postal certificate should be drawn and that such a presumption is expected to be drawn when the facts so justify, even in the case of a letter sent under postal certificate. In the case before this Court, the defendant has not filed Written Statement controverting the averments made in the plaint. Hence, I find no reason for not raising a statutory presumption of service of the notice sent under certificate of posting EXh. PW-1/16. A presumption with respect to the notice sent under certificate of posting was raised by Punjab and Haryana High Court in Amrit Lal Sharma v. Narainder Sharotri 2000 (1) PLJR 806 (PandH) and by Andhra Pradesh High Court in M.A.Ghani v. P. Rama Reddy 2003 (3) Andh LT 120 (AP). Vide this notice, the tenancy was terminated on the expiry of 31st October, 2010. In view of the provisions contained n Section 106 of Transfer of Property Act, a lease of immovable property for a purpose other than agricultural or manufacturing purpose is terminable by fifteen days' notice on the part of either the lessor or lessee. Since the suit premises was let out to the defendant for residential purpose, as is evident from the lease deed itself, the tenancy could have been terminated by giving fifteen days' notice. The notice by registered post was sent on 28th July, 2010. In ordinary course, it must have been tendered to the defendant within two-three days thereafter.