* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: September 12, 2023 + (1) RFA(COMM) 167/2023, CM APPL. 40831/2023 BRIJ MOHAN SARNA ..... Appellant Through: Mr. Uttam Dutt, Adv. with Mr. Amitabh Krishn, Mr. Rajeev Singh, Mr. Kumar Bhashkar and Ms. Sonakshi Singh, Advs.

versus SUSHMA CHAWLA ..... Respondent Through: Mr. Amulya Dhingra, Mr. Diwakar Singh and Mr. Abhishek Dev, Advs.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO, J. (ORAL)

1. This appeal has been filled by the appellant challenging the judgment / decree dated May 8, 2023, whereby the learned District Judge (Commercial Court)-02, West Tis Hazari Courts, Delhi (‘Commercial Court’, in short), while disposing of the application under Order XIII A of the Civil Procedure Code, 1908 (‘CPC’, for short) by rendering a summary judgment has granted the possession of the suit premises in favour of the respondent herein and a preliminary decree of possession has been passed.

2. Mr. Uttam Dutt, learned counsel for the appellant has made the following submissions while contesting the impugned judgment /

decree;-

(i) The Commercial Court failed to appreciate that the suit property bearing Room No.4, Building No.31, Raja Garden, New Delhi- 110015, measuring 264 sq.ft.(32.6 ft x 8.10 inches approx.) (‘suit property’, for short) is a residential property and is not being used exclusively for the purpose of trade or commerce.

(ii) The Commercial Court failed to appreciate that the rent receipts filed by the respondent/plaintiff, clearly shows that the suit property is a residential room No.4 which was being let out to the father of the appellant, exclusively for residential purpose which was later inherited by the appellant along with other legal heirs of Late Gobind Ram Sarna, who were never made a party to the suit.

(iii) The Commercial Court failed to appreciate that the sale deed produced by the respondent / plaintiff itself, reflects that the suit property is a residential property and the father of appellant was residing in the said property since 1973. Hence, in that sense, the dispute is not a commercial dispute for the Commercial Court to entertain the same.

(iv) The Commercial Court failed to appreciate the objections taken by the appellant / defendant in his written statement regarding the jurisdiction of the Commercial Court to entertain the suit as the rent of the suit property is ₹2,438/- per month, which is less than ₹3,500/- hence, the appellant has the protection under Delhi Rent Control Act, 1958, and as such the Commercial Court could not have entertained and the suit was liable to be rejected under Section 50 of the Delhi Rent Control Act.

(v) The Commercial Court failed to appreciate that in 2017, the defendant and the plaintiff along with her son came to an understanding that the previous rent was paid to them along with interest @13% compounded annually. As the appellant requested for repairs in the rented room, the respondent asked the appellant to bear the expenses of the repairs which was agreed to by the appellant. Accordingly, ₹10,000/- (₹2,216/- towards the rent and ₹7,784/- towards the repair) per month were being extorted by the respondent / plaintiff. The appellant paid ₹10,000/- per month for two years and thereafter, stopped paying rent as no repairs which were promised were carried out. Despite the above said oral agreement / understanding, the respondent by inducing the appellant has shown ₹10,000/- towards rent. Hence, there is a triable issue which requires trial and can only be proved by adducing evidence and as such the present suit filed by the respondent is not covered under the ambit of Order XIII-A of the CPC and as such the impugned judgment / decree is liable to be set aside.

(vi) The Commercial Court in passing the impugned order has also overlooked the rent agreement dated June 22, 1982 and the rent receipt. The Commercial Court failed to appreciate that the respondent / plaintiff