* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 2591/2015
% 31st August, 2015
DURGA SOFTELCOM PVT LTD ..... Plaintiff
Through: Mr. Sandeep Sethi, Sr. Adv. with Mr.
Samar Singh Kachwava and Mr.
Raghavendra Mohan Bajaj, Adv.
Mr. Kabeer Sablok, Director.
versus
ARICENT TECHNOLOGIES (HOLDINGS) LTD. & ORS.
..... Defendants
Through
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
I.A.No.18101/2015 (Exemption)
1.
Exemption allowed subject to just exceptions.
I.A stands disposed of.
I.A.No. 18102/2015 (U/s 80(2) CPC) CS(OS) No. 2591/2015 Page 1 of 12
2. This application is disposed of as infructuous inasmuch as, only the reliefs (C) and (D) in the suit are prayed, and others reliefs sought are allowed to be withdrawn with liberty to file a suit for the same in the appropriate court of territorial jurisdiction. Defendant nos. 2 to 7 in the suit are deleted as urged on behalf of the plaintiff. Amended memo of parties be filed within one week from today.
I.A stands disposed of.
I.A.No.18100/2015 (U/S 149 CPC)
3. Counsel for the plaintiff states that the amount towards court fees has been deposited in the treasury and plaintiff through his advocate undertakes that the court fees will be positively deposited within a period of one week from today. Plaintiff will be bound by the undertaking given to the Court.
I.A stands disposed of.
I.A.No.18099/2015 (U/o 11 Rule 2 CPC)
4. In this application plaintiff prays that for the relief with respect to claim of damages which the plaintiff may have to file in view of the cause of action alleged by the plaintiff of loss being caused to it on account of alleged CS(OS) No. 2591/2015 Page 2 of 12 illegal vacation of the suit premises by the defendant may be permitted to be filed in a subsequent suit. Since what will be the damages, are not known today ie cannot be quantified as on date, the application is allowed with the liberty to file a suit with respect to the claim for damages. I.A stands disposed of.
CS(OS) No. 2591/2015 & I.A.No.18098/2015 (U/o 39 Rules 1 & 2 CPC)
5. In the suit the following reliefs are prayed:-
"A. Pass a Decree of Declaration, that the Plaintiff has an enforceable right against the Defendant, to seek continuance of the lease in respect of the building for a period of 15 years, failing which, in terms of the Schedule to the Lease Deed dated 07.01.2009, the Plaintiff has a right as owner over all goods, machinery, equipment, or other material within its building premises and no such goods, machinery, equipment, or other material can be removed or de-bonded, prior to expiration of the 15 year lease period, without the permission of the Plaintiff, and without prejudice to its right to seek recovery of the rental amounts for the remaining period.
B. Pass a Decree of mandatory and permanent injunction restraining the Defendant No.1 from vacating the premises of the Plaintiff, or stopping payment of monthly rentals, till it satisfactorily discharge the liability of Rs.43 crores, which Plaintiff contracted on account of guarantees and assurances that the same would be financed from monthly rentals spanning 15 years, for which period of time atleast the Defendant No.1 would occupy the premises and pay the applicable monthly rentals.CS(OS) No. 2591/2015 Page 3 of 12
C. Issue a decree of mandatory and permanent injunction restraining the Defendant No.1 from transferring any material out of the building of the Plaintiff, till such time that it has complied with the provisions of the Schedule to Lease Deed dated 07.01.2009, i.e. by continuing the Lease for a minimum period of 15 years, D. Issue a decree of mandatory and permanent injunction restraining the Defendant No.1 from transferring any material which belongs to the Plaintiff, out of the building of the Plaintiff, E. Issue a decree of mandatory and permanent injunction restraining the Defendant No.2 to 7 from granting any permission to the Defendant No.1 to be allotted a unit in Noida Special Economic Zone till it does not demonstrate to the satisfaction of this Hon'ble Court, its compliance with the applicable criteria and till its dispute with the Plaintiff as referred above is resolved, F. Issue a decree of mandatory and permanent injunction restraining the Defendant No.2 to 7 from granting any permission for de-bonding of any goods/machinery/equipment present inside the building.
G. Allow the costs of the present Suit in favour of the Plaintiff; and H. Pass any such other order(s)/decree(s)/direction(s) as this Hon'ble Court may deem fit and proper as the nature and circumstances of this case may required."
6. Learned senior counsel for the plaintiff on instructions states that this suit is only pressed qua reliefs (C) and (D) and as regards other reliefs liberty is prayed, and which is granted, to file a suit in the court of CS(OS) No. 2591/2015 Page 4 of 12 appropriate territorial jurisdiction noting that the suit property is situated at Gurgaon, Haryana.
7. So far as the relief (C) is concerned, this relief is predicated on the cause of action and averments made in the plaint that there is a lock-in period of three years in terms of the lease deeds in question, however in my opinion, factually as on date the lock-in periods in any of the three lease deeds have already come to an end and therefore this relief (C) which is prayed is misconceived and rejected for the reasons given hereinafter on account of the admitted facts which emerge from the pleadings and documents of the plaintiff.
8. The facts of the case are that the plaintiff gave on lease to the defendant different portions of the premises on the plot bearing nos. 418 and 419, Phase IV, Khasra Number 63/14/3/1, 16/3/1-17, Village Dundahera, Udyog Vihar Gurgaon, Haryana. A total carpet area of 1,75,000 sq. ft. was leased out to the defendant in terms of the three Lease Deeds dated 8.7.2008, 7.1.2009 and 28.7.2009. The first Lease Deed was for an area of 88,982 sq. ft., second Lease Deed was for an area of 54,584 sq. ft. and the third Lease Deed as for an area of 26,792 sq. ft. Plaintiff claims that the lock-in period of all the three lease deeds though mentioned as three years in the relevant CS(OS) No. 2591/2015 Page 5 of 12 clauses comprises in the main part of the lease agreements, really the lock-in period was actually for a period of 15 years in view of the Schedule which is attached to the Lease Deed dated 7.1.2009 i.e the second Lease Deed. The Schedule is in fact a site plan with certain notation in the same. It may be noted that there is no Schedule which is found in any of the other two lease deeds.
9. In order to appreciate whether the lock-in period is only for 3 years or for 15 years on account of the Schedule attached to the Lease Deed dated 7.1.2009, let me reproduce below Clauses 3.1 and 3.2 of the Lease Deed alongwith the relevant part of the Schedule to the Lease Deed dated 7.1.2009. These relevant Clauses of the Lease Deed read as under:-
Clauses 3.1 and 3.2 "3.1 In consideration of the rent and other covenants and conditions on the part of the Lessee hereinafter contained, the Lessor gives on Lease and Demised Premises for industrial/commercial or IT/ITES related business as stated herein on a monthly rental as specified in clause 2.1 above, for a period of 58 (fifty eight) months commencing with effect from December 1,2008 (the "Effective Date"), with a minimum lock-in period of 32 months including 3 months notice period. This 58 months lease shall not be terminated by the Lessee before the expiry of lock-in period, inclusive of three month notice unless termination is occasioned on account of a breach CS(OS) No. 2591/2015 Page 6 of 12 of the terms of this lease by the Lessor, which breach is not rectified within 7 days.
3.2 After the expiry of 58 months from the Effective Date, the Lease may be extended at the sole option of the Lessee for a further two terms of 5 years each. However after the expiry of initial 31(thirty one) months, the rent for the Demised Premises shall increase by 15% on the last paid rent and after 67 (sixty seven) months rent will be increased on last warm shell rent and no rent escalation will be made on security deposit and furniture fixture. For further renewed period (after 68 months) rent shall be renegotiated. The Lessee shall express its intention of renewal by giving the Lessor written notice, three months before the expiry of the respective period lease whereupon the Lease Deed shall be renewed on the same terms and conditions herein contained, except for the escalation in rent referred to above. At the time of renewal/extension of the lease as provided in this Lease, a fresh Lease Deed on the same terms and conditions as contained herein will be executed between the Lessor and the Lessee. The payment of stamp duty and registration charges in respect of this Lease Deed as well as at the time of renewal/extension will be borne solely by the Lessor."
Schedule to Lease Deed dated 07.01.2009 "The lessor is incurring heavy expenditure in order to install machinery and equipment in and otherwise also, to alter the premises for the specific needs of the Lessee. All equipments and/or machinery installed/placed/brought into this area shaded in colour orange shall belong to the Lessor an dmay not under any circumstances be removed from the premises prior to Lessee continuing the lease for a minimum period of 15 years. No such machinery or equipment shall be removed even if it CS(OS) No. 2591/2015 Page 7 of 12 belongs to the lessee. Incase the Lessee fails to continue the lease for 15 years that all such equipments and machinery shall belong to the Lessor alone and the Lessee shall cease to have any right over the same. The rights of the Lessor as per the schedule are without prejudice to its other right and contentions as available in Law, including taking action to recover amount invested pursuant to agreement dated 07th Jan 2009, in the event that the lease are not continue for a period of 15 years by the Lessee." (underlining added)
10. Learned senior counsel for the plaintiff very vehemently and strenuously argued that once in the Schedule to the lease deed, it is specified that the lease is for a minimum period of 15 years, the lock-in period as mentioned in Clauses 3.1 and 3.2 becomes immaterial and that the period of 15 years specified in the Schedule to the lease deed will prevail.
11. I may note that the lock-in period in terms of all the three lease deeds including the Lease Deed dated 7.1.2009 as per its relevant clauses contained in the main lease deed, have admittedly already expired and there is no fresh lease deed of five years which has been executed in terms of Clause 3.2.
12. In my opinion, the cause of action pleaded in the plaint and predicated on the basis of the Schedule to the Lease Deed dated 7.1.2009 and whereby plaintiff claims that there is a lock-in period of 15 years is a CS(OS) No. 2591/2015 Page 8 of 12 totally misconceived cause of action which is pleaded and the suit on this cause of action is liable to be dismissed on the admitted facts. The admitted facts are that the clauses in the main lease agreement as reproduced above specified that the lock-in period is not of 15 years but the lock-in period is only of 32 months. The lock-in period under the Lease Deed dated 7.1.2009 has already expired by 7.1.2012 taking the lock-in period as 36 months, though in Clause 3.1, the minimum lock-in period is stated to be 32 months including three months' notice period.
13. Once the lease deed including the Lease Deed dated 1.7.2009 is for a larger period of approximately 5 years with the lock-in period of a lesser period of three years and admittedly no lease deed has been executed for the next period of five years in terms of Clause 3.2, there does not exist any fresh contract of a lease deed for the fresh five years so that a lock-in period within that fresh/additional five years has come into operation. As of date therefore there is no lock-in period applicable to the defendant/tenant after the expiry of the first lock-in period of three years w.e.f 7.1.2009.
14. It is settled law with respect to interpretation of documents that an earlier clause will prevail over a later clause in case of conflict. In this regard, reference can be made to a judgment of a learned Single Judge of CS(OS) No. 2591/2015 Page 9 of 12 this Court in the case of Smt. Kanan Bakshi Vs. Sh. Atul Bali and Ors. 161 (2009) DLT 321 and a judgment of a Division Bench of this Court in the case of Sharda Nath Vs. Delhi Administration & Ors, 149 (2008) DLT 1. Since the later part of the lease deed being the Schedule of the lease deed containing a clause/notation for a minimum period of 15 years is in direct conflict with the earlier Clauses 3.1 and 3.2 which specify that the lease deed is only for a period of 5 years initially with only an entitlement of further renewals of five years each to the lessee at its option, and for which fresh renewals of five years fresh lease deed has to be executed but has not yet been executed, the lease deed in question therefore will only be of 5 years in view of the earlier Clauses 3.1 and 3.2 of the Lease Deed and cannot be for 15 years as per the notation made in the later part of the lease deed being the Schedule attached to the lease deed. In fact, I may note that the Schedule is not a typical schedule to a document but the Schedule in question is a part of a site plan which is attached to the lease deed.
15. In my opinion, therefore, plaintiff cannot lay a claim before this Court in the form of prayer (C), and on the admitted facts the suit is to be dismissed on the predicated cause of action that there still continues a lock- in period and the defendant/lessee has to continue for the lock-in period CS(OS) No. 2591/2015 Page 10 of 12 inasmuch as there is at present no lock-in period and the lock-in period under the existing lease deed has already expired.
16. The suit is therefore dismissed so far as relief (C) is concerned.
17. That only leaves us with the relief (D) claimed in the suit, and to this aspect the plaintiff has a valid cause of action, inasmuch as, whatever are movable goods of the plaintiff in the leased premises, these goods belong to the plaintiff and not the defendant/lessee and therefore defendant on vacation of the leased premises cannot in any manner take away any goods or movable properties of the plaintiff and the details of which as per the plaintiff are contained at pages 77 and 78 of the paper book being a document filed by the plaintiff and signed by both the parties. This list will be attached to the injunction notice and order which will be issued by this Court for serving upon the defendant.
18. In view of the arguments urged on behalf of the plaintiff, till further orders unless varied by the Court, the defendant is restrained from taking out the movable properties and goods mentioned at pages 77 and 78 of the paper book of the documents filed by the plaintiff and which pages 77 and 78 will be attached to the injunction notice and order as issued by this Court as stated above.
CS(OS) No. 2591/2015 Page 11 of 12
19. Summons in the suit and notice in the I.A limited to the prayer (D) be issued to the defendant on filing of process fee both in the ordinary method as well as by registered AD post, returnable on 27th January, 2016.
AUGUST 31, 2015 VALMIKI J. MEHTA, J.
ib
CS(OS) No. 2591/2015 Page 12 of 12