* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 16th September, 2014
+ CS (OS) NO. 2026/2013
SHYAM SUNDER & ANR. ..... Plaintiffs
Through: Mr. Sanjeev Sindhwani, Senior
Advocate with Mr. Sanjay Dua, Adv.
& Mr. Uday Joshi, Adv.
Versus
RAKAVI HOSPITALITY & ORS. ..... Defendants
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
G.P. MITTAL,J. (Oral)
IA No.3092/2014 (O.XII Rule 6 CPC) in CS (OS) NO. 2026/2013
1. Reply to the application has not been filed by the Defendants despite opportunity being granted to them.
2. This suit for possession, recovery of rent, mesne profits, permanent and mandatory injunction was filed by the Plaintiffs against the Defendants with the averments that Defendant no.1, which is a partnership firm of Defendants no.2 and 3, was inducted as a tenant in the second floor of the property bearing no.N-11, Market Greater Kailash-I, New Delhi-110048, measuring 1765 sq.ft. w.e.f. 01.05.2012 CS (OS) No2026/2013 Page 1 of 6 by a registered Lease Deed dated 23.04.2012. Initially, the rate of rent was Rs.5,75,000/- per month but there was periodic increase in the rent and hence, the rate payable w.e.f. 01.11.2013 was Rs.6 lacs per month. It is averred that Defendant no.1 defaulted in payment of rent. Cheques issued by Defendant no.1 towards rent for months of February, 2013 to May, 2013 were dishonoured as a result of which a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act) was filed in the court of Metropolitan Magistrate concerned.
3. On repeated insistence, Defendant no.1 issued two pay orders dated 27.05.2013 and 03.07.2013 for Rs.2,91,000/- each and consequently, the complaint under Section 138 of the N.I. Act was withdrawn. However, Defendant no.1 failed to pay rent even for subsequent period. Therefore, the Plaintiff by a legal notice dated 22.08.2013 terminated Defendant no.1's tenancy w.e.f. 30.09.2013.
4. In the written statement filed by the Defendants, the execution of the Lease Deed and the rate of rent have not been disputed. However, in para 3 of the written statement, the Defendants have stated that only one or two cheques tendered by the Defendants were dishonoured and the Defendants immediately sent cash in lieu of those cheques. CS (OS) No2026/2013 Page 2 of 6
5. Service of the legal notice terminating the tenancy has not been disputed. Rather, the Defendants have given a reply dated 30.09.2013 to the notice whereby the relationship of landlord and tenant and the rate of rent have not been disputed. At the same time, it has been stated that the notice served by the Plaintiffs contains only the half facts. It has been stated that it was orally agreed between the parties that the rent payable by Defendant no.1 to the Plaintiffs will be flexible.
6. As per Order VIII R.3 CPC, the Defendant is under an obligation to deal with each averment of the plaint to which he does not admit. Evasive denial is no denial in law. For the purpose of decree of possession, the Plaintiff has only to prove termination of tenancy in terms of the lease, service of notice dated 22.08.2013 is admitted but the Defendants have vaguely stated that one or two cheques were dishonoured and the amount was sent in cash. They have not stated as to how many cheques were dishonoured and how much amount was paid in cash and when. Thus, the earlier said averment shall be deemed to be admitted.
7. In view of these admissions, the Plaintiffs have become entitled to judgment under Order XII Rule 6, CPC.
CS (OS) No2026/2013 Page 3 of 6
8. I accordingly pass a decree of possession in favour of the Plaintiffs and against the Defendants in terms of para 20(a) of the plaint.
9. The application stands disposed of.
IA No.7253/2014 (O.15-A CPC)
1. Reply to the application has not been filed by the Defendants despite opportunity being granted to them.
2. By an order dated 13.02.2014 passed in IA No.16859/2013 under Order 15-A, CPC the Defendants were directed to pay the admitted rent at the rate of Rs.5,75,000/- per month from March, 2013 till February, 2014 within four weeks. The Defendants were further directed to deposit monthly rent at the earlier stated rate on or before 7th of each calendar month.
3. The order dated 13.02.2014 requiring the Defendants to pay arrears of rent and then to pay future rent month by month has not been complied with. An application for striking out the defence of the Defendants has been moved. The Defendants have failed to file any reply to the application or give any justification for non compliance of the order dated 13.02.2014. The defence of the Defendants is therefore, ordered to be struck off.
CS (OS) No2026/2013 Page 4 of 6
4. The Learned counsel for the Plaintiffs states that the Plaintiffs restrict their claim to the mesne profits to the agreed rate of rent.
5. As per the Lease Deed Ex.P-3, the tenancy was created between the parties at the rate of Rs.5,75,000/- per month plus service tax w.e.f. 01.07.2012, Rs.6 lacs per month plus service tax w.e.f. 01.11.2013, Rs.7,20,000/- plus service tax w.e.f. 01.05.2015 and Rs.8,64,000/- plus service tax w.e.f. 01.05.2018.
6. The suit of the Plaintiffs is accordingly decreed for recovery of rent/mesne profits at the rate of Rs.5,75,000/- plus service tax per month from 01.03.2013 till 31.10.2013; at the rate of Rs.6 lacs plus service tax from 01.11.2013 till 30.04.2015 as stated in the Lease Deed. If the possession of the premises is not delivered by 30.04.2015, the Plaintiff shall be entitled to recover mesne profits at the agreed future rent as stated in para 5 earlier.
7. The Plaintiffs shall also be entitled to interest @ 7% per annum on the arrears of rent i.e. the rent not paid monthly in terms of the lease.
8. The Plaintiffs shall be liable to pay the court fee under Order XX Rule 12 CPC on the amount being quantified on the recovery of the rent/mese profits.
CS (OS) No2026/2013 Page 5 of 6
9. The suit of the Plaintiffs for grant of permanent injunction in terms of para 20(b) of the plaint is also decreed.
10. The Plaintiffs will be entitled to costs of the suit.
(G.P. MITTAL) JUDGE SEPTEMBER 16, 2014 vk CS (OS) No2026/2013 Page 6 of 6