Delhi High Court
M/S Shakun & Co (Service) Pvt Ltd & Anr vs Ashok Duggal on 31 July, 2026
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 30 th April, 2026
Pronounced on: 31st July, 2026
+ RSA 134/2017 , CM APPL. 17781/2017 (stay)
RSA 135/2017, CM APPL. 17784/2017 (stay)
1. M/S SHAKUN & COMPANY
(Services) Private Ltd.
112-113, Gagan Deep Building
12, Rajendra Place,
New Delhi 110008 .....Appellant No.1
2. PRADEEP MEHRA
Director
M/s Shakun & Company
(Services) Private Ltd.
F-109, Rajouri Garden,
New Delhi. ....Appellant No.2
Through: Appearance not given
versus
SH. ASHOK DUGGAL
S/o Sh. R.N. Duggal
R/o B-742, Ansal Designer Villa,
Sushant Lok-1,
Gurgaon .....Respondent
Through: Ms. Amrit Kaur Oberoi and
Ms. Prashansa Srivastava, Advocates.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 1 of 20
ARORA
Signing Date:31.07.2026
17:54:37
1. The aforesaid two Regular Second Appeals bearing RSA No.
134/2017 and RSA No. 135/2017, are decided together as they emanate
from the common Judgment and Decree dated 07.04.2017 wherein the
learned District Judge in the First Appeal, has upheld the Judgment of the
learned Civil Judge dated 09.10.2013 and 10.10.2013 respectively
decreeing the Suit of the Plaintiff, for Recovery of Rent and Damages.
2. The Plaintiff/Respondent, Mr. Ashok Duggal had filed two Civil Suits
bearing No. 506/2012 (originally Suit No. 13/2001) for Recovery of
Possession of Basement of House No. B-2, Gagandeep Building, Rajendra
Place, New Delhi, and Suit No. 508/12/01 (originally Suit No. 9/2001) for
Recovery of Possession of Flat bearing No. 610, 6th Floor, Gagandeep
Building, Rajendra Place, New Delhi (hereinafter referred to as ‘the Suit
Properties’) and for Recovery of Damages and Arrears of Rent.
3. The Plaintiff, Sh. Ashok Duggal had stated in his Suits for Recovery
of Possession that Basement bearing No. B-2, Gagandeep Building,
Rajendra Place, New Delhi, admeasuring 580 square feet and the said Flat
bearing No. 610, 6th Floor, admeasuring 370 square feet, were jointly
owned by him i.e. Sh. Ashok Duggal and Sh. Pradeep Mehra, his brother-in-
law, in equal share. Sh. Pradeep Mehra was a Director in the Defendant
Company.
4. The Plaintiff and his brother-in-law, Sh. Pradeep Mehra (Defendant
No. 2) leased out the Basement and the Flat shown in red in the Site Plan, to
the Defendant No. 1/M/s Shakun & Co. (Services) P. Ltd., w.e.f.
01.01.1985 on a rent of Rs.10,400/- per month and Rs.9,400/- per month,
respectively. The Plaintiff and his brother-in-law, Sh. Pradeep Mehra were
entitled to 50% of the rent i.e. Rs.5,200/- per month each for the Basement
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 2 of 20
ARORA
Signing Date:31.07.2026
17:54:37
and Rs.4,700/- per month each, for the Flat. The Defendant Company
continued to be a tenant in the suit premises and was in the arrears of rent @
Rs.5,200/- towards the Plaintiff for the Basement and @Rs.4,700/- for the
Flat, for the period 01.04.1999 to 31.12.2000, totalling to Rs.1,09,200/- for
the Basement and Rs.98,700/- for the Flat, and the interest @18% p.a., was
payable on the arrears of rent.
5. The Plaintiff further explained that though the tenancy had been
created for month to month, but the rent was being paid annually, as per the
mutual understanding. The Plaintiff terminated the tenancy of the
Defendants vide Legal Notice dated 26.05.2000 and asked the Defendants,
to vacate the Suit premises on or before 30.06.2000.
6. The Plaintiff, Sh. Ashok Duggal further explained that there were
disputes in the family between the Plaintiff and other Directors of the
Defendant No. 1 Company, including the winding up Petition, which is
pending in this Court. The Plaintiff further submitted that despite service of
Notice dated 26.05.2000, the Defendants had failed to vacate the Suit
Premises. The Plaintiff is entitled to the Mesne Profits/Damages @65/- per
square feet from 01.07.2000 i.e. Rs.15,000/- per month for his 50% share of
the Basement and Rs.12,000/- per month for his 50% share of the Flat.
7. Hence, the Plaintiff, Sh. Ashok Duggal filed the Suits for Recovery of
Possession, Arrears of Rent of Rs.1,09,200/- for the Basement and
Rs.98,700/- for the Flat and also for Damages w.e.f. 01.07.2000.
8. The Defendant No. 1/ M/s Shakun & Co. (Services) P. Ltd., filed the
Written Statement in both the Suits wherein it took the preliminary
objections that the Plaint did not disclose any cause of action against the
Defendants and was liable to be rejected under Order VII Rule 11 CPC. It
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 3 of 20
ARORA
Signing Date:31.07.2026
17:54:37
was explained that in the year 1975-1976, Sh. Pradeep Mehra, one of the
main promoters of the Defendant Company, started the business of printing,
re-printing, publication, distribution and circulation of books, notifications,
circulars, press notes and policy notes etc., under his sole Proprietorship
firm “Shakun & Company”.
9. Subsequently, in order to organise and formalize the business, Sh.
Pradeep Mehra along with his sister, Mrs. Alka Duggal (since deceased)
wife of the Plaintiff, got the Private Limited Company incorporated under
the name and style of “Shakun and Company (Services) Private Limited” i.e
the Defendant No. 1. Since its incorporation in 1980, the Defendant
Company has been carrying on the business under its name over last 20
years. The Defendant Company has achieved enviable goodwill and success
in its business because of the high value-oriented service.
10. On 16.02.1983, Mrs. Alka Duggal resigned from the Directorship of
the Defendant No. 1 Company. Subsequently, on the same day and on
01.09.1992, the Plaintiff and his daughter respectively, were inducted as
Non-Shareholding Directors, in the Defendant No. 1 Company.
11. Initially, after induction of the Plaintiff, the business went on
smoothly, but after the demise of Mrs. Alka Duggal on 30.04.1999, the
Plaintiff started behaving abnormally and in a manner detrimental to the
interest of the Defendant Company. He, for the reasons best known to him,
started inducing and luring the employees of the Defendant Company, to
rebel against the management. With the intervention of other family
members and relatives, the Plaintiff agreed not to indulge in such activities,
which were detrimental to the interest of the Defendant Company.
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 4 of 20
ARORA
Signing Date:31.07.2026
17:54:37
12. The Plaintiff being the Director of the Defendant Company, had
access to every trade related privileged information of the Defendant
Company. He covertly started misusing it for his personal interest and
benefit. All the data-base, list of clients/subscribers of the Defendant
Company, were being accessed and used for the personal gains by the
Plaintiff. The illegal and dishonest acts of the Plaintiff, which came to the
knowledge of the Defendants in the first week of February, 2000, when the
Defendants received one brochure of M/s Shakun Exim Corporation from
one of its subscribers, informing the Defendants of existence of a Firm
purported to be engaged in the same business as that of the Defendant. The
Brochure contained the name of the Plaintiff and his daughter, as its issuer.
13. The Plaintiff and his daughter, had launched the said Firm with the
same business objectives, while continuing as a Director of the Defendant
No. 1 Company. Moreover, some of the employees of the Defendants, also
suddenly stopped reporting for duty as they were lured and snatched by the
Firm of the Plaintiff.
14. The Defendants also discovered that the Accounts, which were being
handled by the Plaintiff, at the time of renewal of subscription in the month
of December, 1999, had only requested for renewal of subscription from the
subscribers of the Defendants, for three months; and in the month of
February, 2000, he requested for renewal of subscription for financial year
2000-2001 under the name of his Firm. The Defendants immediately
circulated a Caution Notice to all the subscribers, making them aware of the
confusion being created by the Firm of the Plaintiff.
15. The Defendants also served a Legal Notice dated 11.02.2000 and
29.02.2000, amongst others to the Plaintiff, calling upon him to refrain from
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 5 of 20
ARORA
Signing Date:31.07.2026
17:54:37
doing any business same or similar to that of the Defendants, under the
name and style of “Shakun” for whose usage, the Defendants had an
absolute prior right.
16. Despite such Notices, Plaintiff did not refrain himself from such
activities. The Defendants thus, filed Suit No. 749/2000 for Permanent
Injunction for restraining the Plaintiff from Passing Off and Rendition of
Accounts of Profits etc. in this Court, which is pending adjudication.
17. Furthermore, in view of the anti-Company activities of the Plaintiff,
an Extra-ordinary General Meeting of the Defendants, was held on
10.04.2000 and the Resolution for removal of the Plaintiff and his
daughter as Directors of the Defendants, was carried out unanimously.
Accordingly, Form No.32 for removal of the Plaintiff and his daughter, was
duly filed with Registrar of Companies, on 11.04.2000.
18. It was claimed that the Plaintiff and his daughter, not only took away
three cars and cell phone of the Company that had been given to them for
personal use, but also failed to return the various articles of the Company
including the three cars and the mobile phone of total value Rs.4,06,837.04,
which were in their possession.
19. The Defendants admitted that the suit properties were owned by the
Plaintiff and Sh. Pradeep Mehra, Defendant No.2 and had been given on
perpetual lease to the Defendant Company in January, 1985. It was further
admitted that at present, the monthly rent was Rs.10,400/- for the Basement
and Rs.9,400/- for the Flat. It was also admitted that as per the Agreement,
the rental was to be divided equally between the Plaintiff and Sh. Pradeep
Mehra.
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 6 of 20
ARORA
Signing Date:31.07.2026
17:54:37
20. The Defendants submitted that since induction of the Plaintiff as
Director of the Defendant Company, the 50% of monthly rent was credited
equally in the Account of Sh. Pradeep Mehra and the Plaintiff respectively,
maintained by the Defendants Company, and the amount so credited in their
Account, was being withdrawn by them respectively. It was stated that the
same practice of payment of rent was being followed by the Defendant No.
1 Company.
21. The Defendants claimed that in view of illegal and unauthorised
possession of the articles and non-refund of the money despite repeated
requests, the share of the Plaintiff towards the rental of the suit premises,
was not being disbursed to him and was being adjusted towards the value of
the articles. After debiting the book value of the articles in his account, the
Defendants credited the Plaintiff’s share of the rent till March, 31, 2001.
However, the Plaintiff still owes and is liable to pay Rs.67,424.26 to the
Defendant Company.
22. The Defendant No.1 further claimed that it has a right to raise its
counter-claim for recovery of the articles or the value thereof. The
Defendants submitted that pursuant to the satisfaction of the aforesaid
outstanding amount, the Defendant shall recommence paying the rent to the
Plaintiff.
23. The Defendants further asserted that the Suit is bad for non-joinder of
Sh. Pradeep Mehra, who is admittedly the co-owner of the suit property. It is
further submitted that the Plaintiff is not entitled to any individual or
unilateral action in regard to the lease, without the consent of Sh. Pradeep
Mehra. Without determination of the rights of the Plaintiff and Sh. Pradeep
Mehra in the suit property, the Suit for Possession is not maintainable.
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 7 of 20
ARORA
Signing Date:31.07.2026
17:54:37
24. It was further asserted that the Suit was pre-mature and not
maintainable. Even otherwise, the Basement is a single room with single
entrance and the Flat is a single room along with attached toilet with single
entrance and both are incapable of being vacated partially or more
particularly, 50% of the area.
25. Furthermore, an Application under Section 443 of the Companies Act,
1956 and Order XXXIX Rules 1 and 2 CPC, has been filed by the Plaintiff
claiming arrears of rent aside from various other reliefs, which is pending
adjudication. In view of the said litigation, the present Suit should be stayed
under Section 10 as the subject matter of this Suit and the Company Suit, are
the same.
26. On merits, a similar defence was taken by the Defendants and it was
submitted that the Suit was liable to be dismissed.
27. Defendant No.2 Pradeep Mehra was impleaded on 01.12.2006, in
view of the objection taken by Defendant No. 1 in the Written Statement
regarding non-joinder of a necessary party, namely Shri Pradeep Mehra,
who was admittedly a co-owner of the suit property.
28. Counter-Claim bearing No. 09/2001 was filed by the Defendant
Company wherein the Defendants asserted that the Plaintiff, who was the
Ex-Director of the Defendant Company, had indulged in various illegal acts
against the Company including passing of his business under the name and
style of M/s Shakun Exim Corporation for which Suit No. 749/2000, had
already been filed. It was claimed that on account of the illegal and
unauthorised activities of the Plaintiff and retention of the Property of the
Company, the prayer was made that the Mandatory Injunction be granted
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 8 of 20
ARORA
Signing Date:31.07.2026
17:54:37
against the Plaintiff, Sh. Ashok Duggal for directing him to return the
assets, properties of the Defendants.
29. The same Counter-Claim bearing No. 09/2001 was filed by the
Defendant in both the Suits, which was dismissed vide Order dated
17.01.2005. This Court gave one opportunity to the Defendant but it failed
to take steps and the Order dated 17.01.2005, was affirmed by this Court.
30. Vide Order dated 20.03.2004, the learned Civil Judge allowed the
Application under Order 39 Rules 10 CPC filed by the Plaintiff in the
Basement Suit and directed the Defendants, to pay rent/occupation charges
@Rs.5,200/- per month from 01.01.2001 to 29.02.2004, and to continue to
pay the rent on the monthly basis.
31. From the pleadings, the Issues were framed vide Order dated
17.08.2001, which were finally amended and framed on 20.08.2009 in the
Basement Suit as under:-
i. Whether the defendant has vacated the suit premises as
alleged by the defendant on 30.06.2004 and handed over the
possession to plaintiff? OPD
ii. Whether the plaintiff is entitled to recover the arrears of
rent/damages in light of issue No. 1? OPP
iii. Whether the plaintiff is entitled to the arrears of the rent of
Rs.1,09,200/- along with interest with respect to the suit
property for the period 01.04.1999 to 31.12.2000 from the
defendant? If so, then at what rate? OPP
iv. Whether the plaintiff is entitled to damages for use and
occupation of the suit property w.e.f. 01.07.2000 from the
defendant? OPPSignature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 9 of 20
ARORA
Signing Date:31.07.2026
17:54:37
v. Whether the present suit is not maintainable in view of the
preliminary objections taken in the written statement?
vi. Relief.
32. In the Flat Suit, similar Issues were framed on 20.08.2009, the only
difference being that the arrears of rent claimed were Rs.98,700/- @
Rs.4,700/- per month for the same period i.e. 01.04.1999 to 31.12.2000.
33. The Plaintiff examined himself as PW-1 and tendered his evidence by
way of affidavit Ex. PW-1/A. He relied upon the Property Agreement in
respect of the Suit Property as Ex. PW-1/1 (OSR), the Site Plan as Ex. PW-
1/2, the Legal Notice dated 26.05.2000 terminating the tenancy as Ex. PW-
1/3 and the A.D. Card evidencing its service as Ex. PW-1/4. PW-1 was
extensively cross-examined on 07.04.2011 and 13.05.2011, whereafter the
Plaintiff’s Evidence was closed on 13.05.2011
34. The Defendants examined Shri Pradeep Mehra, Managing Director of
Defendant No.1 and Defendant No.2, as DW-1, who tendered his evidence
by way of affidavit Ex. DW-1/A. He relied upon the certified extract of the
Board Resolution dated 22.04.2000 as Ex. DW-1/1; the brochure of M/s
Shakun Exim Corporation as Ex. DW-1/2; the legal notices dated
11.02.2000 and 29.02.2000 as Ex. DW-1/3 and Ex. DW-1/4 respectively;
the notice dated 12.06.2004 along with the UPC receipt as Ex. DW-1/5
(Colly.); the order dated 26.10.2004 passed by the High Court as Ex. DW-
1/6; the order dated 06.12.2005 passed by the High Court as Ex. DW-1/7;
the order dated 13.04.2006 passed by the Supreme Court as Ex. DW-1/8; the
order dated 30.03.2007 passed by the High Court as Ex. DW-1/9; the letter
dated 30.07.2004 addressed to the Estate Manager as Ex. DW-1/10; the
certificate dated 20.09.2011 issued by the Estate Manager as Ex. DW-1/11;
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 10 of 20
ARORA
Signing Date:31.07.2026
17:54:37
and the Credit Circulation issued by BSES Rajdhani as Ex. DW-1/12. DW-1
was duly cross-examined.
35. The learned Civil Judge vide Judgment dated 09.10.2013 in the
Basement Suit and 10.10.2013 in the Flat Suit, on appreciation of evidence
concluded that the possession of the suit premises was not received by the
Plaintiff, which continued to be in possession of the Defendants. It was held
that the Plaintiff is entitled to the possession of the suit premises. It was
further held that the Plaintiff was entitled to the arrears of rent as
monthly damages amounting to Rs.1,09,200/- for the Basement (from
01.04.1999 to 31.12.2000) and Rs.98,700/- for the Flat (from 01.04.1999
to 31.12.2000) and the same was granted along with the interest @10%
p.a.
36. The Suit of the Plaintiff was thus decreed for Possession, Arrears of
Rent of Rs.1,09,200/- for the Basement and Rs.98,700/- for the Flat along
with simple interest @10% p.a. for the period from 01.04.1999 to
31.12.2000 and the damages @ Rs.5,200/- per month for the Basement and
@ Rs.4,700/- per month for the Flat along with the interest @10% p.a., from
01.01.2001 till the delivery of the possession, vide Judgment dated
09.10.2013 and 10.10.2013 respectively.
37. Aggrieved by the said Judgment, the Defendant Company, as well as,
Sh. Pradeep Mehra, had preferred First Regular Appeal bearing RCA No.
60761/2016.
38. The learned District Judge reappreciated the evidence and concluded
that the learned Civil Judge had rightly appreciated the evidence and rightly
decreed the Suit of the Plaintiff, Sh. Ashok Duggal. No merit was found in
the Appeal, which was dismissed.
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 11 of 20
ARORA
Signing Date:31.07.2026
17:54:37
39. Aggrieved by the dismissal of the First Regular Appeal, the present
Second Appeals have been preferred by the Defendants/Appellants.
40. The Appellants stated that the following substantial questions of law,
arise in the present Second Appeals, which are as under:-
i. Whether the Suit for Mesne Profits and an enquiry under Order XX
Rule 12 CPC is maintainable when no relief of possession is sought
by the Plaintiff?
ii. Whether the surrender of the possession to one co-owner can be
deemed to be a valid surrender?
41. The grounds of challenge are that the two Courts were not justified in
holding that vacation of tenanted premises, can be done only through
delivery of key and lock to the Respondent/landlord. It was not being
appreciated that admittedly, there was no written Lease Agreement between
the Appellant Company and the Respondent, mentioning how the vacation
of the suit premises, was to be effected. Therefore, it was not mandatory for
the tenant to deliver the possession by way of hand over the lock and key.
The vacation and consequent handing over of the tenanted premises, can be
deemed while effecting a notice of vacation thereof on the part of the tenant,
which aspect has been overlooked by the two Courts.
42. Moreover, the Appellant No. 1 vide its Notice dated 12.06.2004, had
intimated that it is vacating the tenanted premises on 30.06.2004 and
handed over the lock and key of the premises to the Respondent and the
Appellant No. 2, Sh. Pradeep Mehra, both being the co-owners of the suit
premises. The Respondent, however, did not turn up to take possession or
the lock and key thereof, and thus, the possession was handed over to Sh.
Pradeep Mehra, the co-owner.
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 12 of 20
ARORA
Signing Date:31.07.2026
17:54:37
43. The Appellate Court erroneously arrived at a conclusion that handing
over of the Possession to the Defendant No. 2 being a co-owner, remained in
the realm of oral assertions and overlooked that there was no basis to
differentiate in this regard as the Defendant No. 2 was the co-owner of the
suit property.
44. It is submitted that the learned Appellate Court noted that even if it
was accepted as gospel truth that the possession was handed over to one co-
owner of the suit property, who happens to be the Director of the tenant
Company, then merely because of the uncordial terms between the parties,
it cannot be said that the possession handed over to Sh. Pradeep Mehra, shall
not be deemed to be a surrender of possession to both the co-owners. The
Company is an independent and a distinct legal entity.
45. The testimony of DW-1 on behalf of the Defendant Company, that
they have already vacated the premises and handed over the possession to
the Defendant No. 2, has not been appreciated in the correct perspective as
the Appellant Company was fully justified to hand over the possession to
one co-owner.
46. Furthermore, in lieu of the specific stand of Appellant No. 1 Company
that they have already vacated the Suit premises, an additional issue was
framed in this regard, which further fortifies the categorical admission by
the Respondent in his cross-examination.
47. The Plaintiff has placed reliance on P.C. Agarwala vs. Payment of
Wages Inspector, M.P., (2005) 8 SCC 104; Electronics Corpn. of India Ltd.
vs. Secy. Revenue Deptt., Govt. of A.P., (1999) 4 SCC 458; Heavy Engg.
Mazdoor Union vs. State of Bihar, (1969) 1 SCC 765; Tata Engineering and
Locomotive Co. Ltd. vs. State of Bihar, AIR 1965 SC 40 and Bacha F.
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 13 of 20
ARORA
Signing Date:31.07.2026
17:54:37
Guzdar vs. CIT, (1955) 1 SCR 876; Mukesh Hans vs. Uma Bhasin, 2010
SCC Online Del 2776; V.K.Uppal vs. M/s Akshay International Pvt. Ltd.,
2010 SCC Online Del 538; Sangeeta Jewels vs. Ajay Kumar Jain, 2008 SCC
Online Del 181, Steel Authority of India vs. Century Tubes, 2005 SCC
Online Del 164 and Rama Association (P) Ltd. vs. Delhi Development
Authority, 1991 SCC Online Del 467.
48. It is further submitted that the two Courts have completely ignored the
fact that the suit property was an unpartitioned property owned by the
Plaintiff, as well as, the Defendant No. 2, Sh. Pradeep Mehra and because
the Respondent failed to come forth to take the possession, it was validly
handed over to Sh. Pradeep Mehra.
49. The Company being an independent legal entity, could not have been
held obligated to hand over the possession to the Plaintiff, for which reliance
is placed on N. Padmamma vs. S. Ramakrishna Reddy, (2015) 1 SCC 417;
Jai Singh vs. Gurmej Singh, (2009) 15 SCC 747; Md. Mohammad All vs.
Jagadish Kalita, (2004) 1 SCC 271; Vidya Devi vs. Prem Prakash, (1995) 4
SCC 496 and Raj Rani vs. Kailash Chand, (1977) 3 SCC 468 and Ram
Gopal Bhagwan Das vs. Parmeshri Das, AIR 1924 Lah 474.
50. It is further contended that once Notice for vacating the tenanted
premises was served, it was the responsibility of the landlord/owner to take
possession of the tenanted premises when it was vacated by the tenant.
Despite due service of Notice dated 12.06.2004 to the Respondent and the
Appellant, who are the co-owners of the Property, the suit premises were
vacated and possession handed over to the Appellant No. 2.
51. Furthermore, the Appellant Company in order to corroborate the
vacating of the premises on 30.06.2004, had obtained the Certificate from
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 14 of 20
ARORA
Signing Date:31.07.2026
17:54:37
Estate Manager of Gagan Deep Flat Owners Association on 20.09.2011. He
also applied and received credit circulation for meter installed in the suit
premises. An Application for bringing these documents on record, was filed
but the same was dismissed vide Order dated 22.02.2012.
52. The Company thereafter, was left with no option but to vacate the
premises on 30.06.2004, for which it moved an Application seeking
permission to summon Business Manager, BSES Rajdhani or any with the
records relating to the Letter dated 02.08.2004 along with the Receipt dated
03.08.2004 for Suit. It was, therefore, wrongly observed by the Court that
there was a delay of 8 years in summoning the records, which became
relevant only after 27.08.2008. The Application for examination of these
officials of BSES, has been wrongly dismissed, by the learned Trial Court. It
is, therefore, submitted that the impugned Judgment is liable to be set-aside.
53. Written Submissions were filed by the Appellant essentially claiming
the same grounds, as have been stated in the Appeal.
54. Written Submissions have been filed on behalf of the Respondents.
Submissions heard and record perused.
55. The Substantial Question of Law framed on 02.04.2026, are as
under:
(i) Whether the Suit for Mesne Profits and an
enquiry under Order XX Rule 12 CPC is
maintainable when no relief of possession is
sought by the Plaintiff?
(ii) Whether the surrender of the possession to one
co-owner can be deemed to be a valid
surrender?
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 15 of 20
ARORA
Signing Date:31.07.2026
17:54:37
56. It is an admitted case of the parties that Ashok Duggal and his
brother-in-law Pradeep Mehra (brother of the wife of Ashok Duggal) were
the joint owners of the suit property, which had been let out to M/s Shakun
& Company, the Defendant on a monthly rent of Rs.10,400/- per month for
the Basement and Rs.9,400/- per month, for the Flat. It was an
arrangement between Ashok Duggal and Pradeep Mehra that they would
share the rent equally and the amount of Rs.5,200/- for the Basement and
Rs.4,700/- for the Flat for being credited in the account of the two owners
every month.
57. Another significant aspect is that Ashok Duggal and Pradeep Mehra
the owners of the property, also were the Directors of M/s Shakun and
Company, to whom the property had been let out.
58. It has been proved that the Company held an extraordinary General
Meeting on 10.04.2000 and by a Board Resolution, Ashok Duggal and his
daughter were removed from the post of Directors of the Company. This
was also corroborated by Form 32 that was submitted with the Registrar of
Companies on 11.04.2000. Thus, since 11.04.2000 Ashok Duggal was not a
Director of M/s Shakun & Company.
59. However, this aspect is insignificant as this case does not pertain to
the inter-se disputes between the Directors of a Company, but is a
simpliciter dispute between the owners and the tenant, wherein there is no
confusion and whether Ashok Duggal continued to be a Director or not, the
fact remained that Shakun & Company which is a legal entity, was a tenant
of Ashok Duggal and Pradeep Mehra.
60. The only aspect which has been challenged is that according to the
tenant Company, they had issued the Notice dated 12.06.2004 to Ashok
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 16 of 20
ARORA
Signing Date:31.07.2026
17:54:37
Duggal as well as to Pradeep Mehra, both being the co-owners of the Suit
property, informing them that they are vacating the property on 30.06.2004
and the lock and key of the premises shall be handed over to them.
However, according to the Appellant, Ashok Duggal did not turn up for
taking the possession and thus, it was handed over to Pradeep Mehra. Since
the Company has validly vacated the suit premises on 30.06.2004, it is no
longer liable in any manner in regard to the handing over of the Possession
to Ashok Duggal.
61. The question which arises is whether the handing over of the
Possession to Pradeep Mehra one of the co-owners, is sufficient to
conclude that the Company had validly vacated the premises on
30.06.2004.
62. Ashok Duggal had denied being served with the Notice dated
12.06.2004. The onus was on the tenant Company to prove that the Notice
was duly served upon Ashok Duggal. The tenant Company had claimed that
the Notice was served through UPC receipt Ex.DW1/5. The learned District
Judge in the impugned Judgment considered in detail whether the Notice
was duly served. It was noted that there was firstly, no explanation as to
why the Notice was not sent through the registered post, but only through
UPC.
63. The Supreme Court in the case of State of Maharashtra vs. Rashid B.
Mulani (2006) 1 SCC 407 has observed that a Certificate of posting
obtained by a sender is not comparable to a receipt for sending a
communication by a registered post. When a letter is sent by registered post,
a receipt with serial number is issued and a record is maintained by the post
office. However, when merely a certificate of posting is sought, no record is
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 17 of 20
ARORA
Signing Date:31.07.2026
17:54:37
maintained in the post office either about the receipt of the letter or the
certificate issued. In the absence of such a record, a certificate of posting is
very little assistance, where the dispatch of such communication is disputed
or denied.
64. Therefore, though the Defendant had claimed to have served two
Notices, but in the light of they being disputed by the Plaintiff, mere service
by UPC, had not been deemed to be valid service on the Plaintiff, Ashok
Duggal, to accept the vacant possession of the suit premises. The two
Courts have rightly held that there was no situation for the Plaintiff to have
gone to the suit premises on 30.06.2004 to accept the possession of the suit
property.
65. The second question which arises is whether handing over of the
possession to Pradeep Mehra, the co-owner, can be considered as valid
surrender of the tenanted premises.
66. The first most conspicuous fact which stares at the face of the record
is that Pradeep Mehra was the Director of M/s Shakun & Company, the
tenant. The second fact which is glaringly evident from the record, is Ashok
Duggal and Pradeep Mehra had developed differences in running the
Company. Thirdly, it is the case of the Defendants themselves that Mr.
Ashok Duggal who was also a Director of the Company, was removed vide
Resolution dated 10.04.2000.
67. In such a situation it is evident that the alleged handing over of the
possession to Pradeep Mehra was essentially as a Director of Defendant
Company. Pradeep Mehra admitted in his deposition that the premises are
lying locked and the keys of the premises are in his possession. It is difficult
to accept that there was a valid surrender of the tenancy to Pradeep Mehra
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 18 of 20
ARORA
Signing Date:31.07.2026
17:54:37
68. There was nothing which prevented Pradeep Mehra from handing
over the joint key of the premises or to do any such act which would have
manifested that the tenancy was surrendered to both the co-owners and that
both were having an access to the tenanted premises. While it may not be
necessary for the tenant to hand over the Suit property to both the co-
owners, but in the peculiar facts and circumstances of this case, it cannot be
said that there was any valid delivery of the tenanted premises to Pradeep
Mehra, who also happened to be the Director of M/s Shakun & Company
which was the tenant. Rather, it is evident that the alleged surrender of
possession of tenanted premises was stage managed by ostensibly giving the
keys to Pradeep Mehra, the Director of the tenant Company and then to
claim a valid surrender.
69. The learned District Judge rightly observed that even during the
pendency of the proceedings, despite the specific plea of Plaintiff that he
was still ready to take the possession of the tenanted premises and despite
framing of an Issue in this respect, no efforts were made on behalf of the
Defendants to hand over the possession of the suit property to the Plaintiff.
70. Though the Defendant No.1 had claimed that they had served due
Notice, but it has already been observed that there was no valid service of
the Notice of handing over of the possession. Moreover, the Defendant
Company handed over the keys to itself through its Director Pradeep Mehra.
Considering the acrimony and that the Plaintiff having ceased to be the
Director as his Directorship having been terminated vide the Resolution of
the Company dated 10.04.2000, it cannot be said that there was any valid
surrender of the property to the Plaintiff.
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 19 of 20
ARORA
Signing Date:31.07.2026
17:54:37
71. Learned ADJ has further rightly noted that while the Defendant
Company claimed that they had handed over the possession to Defendant
No.2 Pradeep Mehra being the co-owner, but there was no basis or
document from where the status of Defendant No.2 as a co-owner or a
Director of the Company could be differentiated.
72. Considering the non-cordial terms between the parties, the surrender
of possession by the tenant to one co-owner who also happened to be the
Director of the Company, has rightly not been held to be a valid surrender
of tenancy and the Defendant Company has been rightly held to be in un-
authorized occupation of the suit premises, for which the Plaintiff was
entitled to user and occupation charges.
73. The learned ADJ has rightly upheld the Judgment of the learned Civil
Judge dated 09.10.2013 and 10.10.2013 decreeing the suit for possession
and directing the Defendant Company to give arrears of rent of
Rs.1,09,200/- for the Basement and Rs.98,700/- for the Flat along with
Simple Interest @ 10% per annum to the Plaintiff Ashok Duggal for the
period from 01.04.1999 to 31.12.2000. Also, the Damages @ Rs.5,200/- per
month for the Basement and Rs.4,700/- per month for the Flat along with
interest @ 10% per annum from 01.01.2001 till the delivery of possession
has also been rightly granted.
74. The Suit has been rightly decreed in favour of the Plaintiff.
75. There is no merit in the present Appeals, which are hereby dismissed.
(NEENA BANSAL KRISHNA)
JUDGE
JULY 31, 2026
RS/VA
Signature Not Verified
Signed By:VIKAS RSA 134/2017 & RSA 135/2017 Page 20 of 20
ARORA
Signing Date:31.07.2026
17:54:37
