Reeaa Hotel And Restaurants (P) ... vs Anusri Enterprises
1996 Latest Caselaw 532 Del

JUDGMENT

K. Ramamoorthy, J.

A)directing the defendants to vacate and hand over the vacant possession of the premises forming part of property known as 13, Community Centre, Ashok Vihar, Phase Ii, Delhi to the plaintiff Company in the same condition as sit was at the time when the same was provided/handed over to the defendants by the Plaintiff at the beginning of the licence for user of the same to run the restaurant of the Plaintiff therefrom;

B)directing the defendants to hand back the assets and belongings of the Plaintiff, provided to the defendants for running the a forenamed restaurant as detailed in the Schedule to Annexure 'B' in a fit and working condition as they were at the time when the same were handed over to the Defendants for use and/or to replace the said assets with assets of the same quality and value;

C)directing the Defendants to pay the sum of Rs. 5,55,000.00 (Rupees Five Lakhs fifty Five Thousand Only) as arrears of Licence Fee payable by the defendants to the Plaintiff Company for the period ending 31st July, 1995;

D)directing the defendants to pay the sum of Rs. 4,05,000.00 (Rupees Four Lakhs Five Thousand Only) as damages mense profits for unauthorisedly running the restaurant of the Plaintiff Company by using its assets/facilities and the suit premises of the Plaintiff Company for the period from 1.8.1995 till 13.12.1995;

E)directing the defendants to pay the sum of Rs. 5,62,045.00 (Rupees Five Lakhs Sixty Two Thousand Forty Five Only) towards damages for damaging and/or alienating the property and assets of the Plaintiff provided to the defendants for the purpose of running the Restaurant and business of the Plaintiff Company;

F)directing the defendants to pay damages/compensation to the plaintiff for trespassing in the property of the plaintiff and illegally and unauthorisedly continuing to occupy the premises owned by the plaintiff.

G)directing the defendants to pay/refund to the Plaintiff Company the sum of Rs. 16045.00 (Rupees Sixteen Thousand and Forty Five only) towards reimbursement of electricity charges illegally realized from the plaintiff pertaining to the period after the Licence Agreement, by wrongfully adjusting the same from out of the Licence Fees which was due at the said time and wrongly withholding the same by the Defendants. the plaintiff further prays a) The defendants, be restrained by way of a permanent injunction from illegally and unauthorisedly using the trade name of 'Mughlal Mahal Northend' and from running the Restaurant business of the Plaintiff Company and using the facilities/assets of the Plaintiff provided there; b) The defendants, be restrained by way of a permanent injunction from selling/alienating/transferring/altering/ modifying or creating third party interests in the said business and premises of the Plaintiff Company; c) The defendants be restrained by means of a permanent injunction from selling/alienating/misappropriating the assets and other properties belonging to the plaintiff and lying in the premises of which the Defendants are in unauthorized occupation. d) The defendants be restrained by means of a permanent injunction from illegally and unauthorisedly using the Trade name of the Plaintiff Company after termination of Licence Agreement. e) The Defendants be directed by means of mandatory injunction to pay damages mense profits @ Rs. 90,000.00 per month alongwith interest thereon @ 20% per annum to the Plaintiff Company from the date of suit till the date of handing back the business and premises of the Plaintiff Company as damages and compensation for unauthorisedly running the business of the plaintiff by using the property and assets of the Plaintiff and for not letting the Plaintiff Company run its own business; f) The defendants be directed to pay the Plaintiff future interest on the said amount of Rs. 15,22,565.00 @ 22% till date of payment; g) Award costs of these proceedings in favour of the plaintiff and against the defendants.

(2) The point involved is a very short one and, therefore, the pleadings need not be referred to in detail. The plaintiff was running a restaurant at the property known as 13, Community Centre, Ashok Vihar Phase-11, New Delhi.

(3) Mr. Mahesh Nagpal, as a Director was incharge of the business. Owing to the fact that he became sick and he could not run the business the defendants were entrusted with the task of running the business on some understanding between the parties. That understanding was reduced to writing and it is called a licence deed. It is dated 14.07.1994. The licence deed refers to the terms and conditions under which the defendants are to run the business. Clause 2 of the licence deed provides that the licensee shall in consideration of the running a Restaurant and using facilities mentioned in para 9 of this agreement deed shall pay to the Licensor a fixed sum of Rs. 90,000.00 as license fee every month. The said amount is to be paid on or before the 14th of every succeeding month. It is admitted that the defendants took over the business and they were put incharge of the Restaurant. It is the case of the Plaintiff that on some pretext or the other the defendants have not paid the license fee as agreed. The plaintiff states that the defendants had committed breach of the terms of the agreement. The cheques issued by the defendants dated 06.03.1995 and 13.03.1995 each for sum of Rs. 30.000.00 were dishonoured. ( Vide letters dated 21.04.1995 and 03.05.1995, the plaintiff had written wrote to the defendants). According to the plaintiff as on 03.05.1995, the defendants were liable to pay to the plaintiff a sum of Rs. 3,30,000.00 as license fee. Instead of paying the amount the defendants issued a notice dated 18.05.1995 through their counsel, justifying their actions and also made a claim on the plaintiff. It is the case of the plaintiff that the defendants have concocted a false story that they had spent a large amount on various heads for running the Restaurant which are to be borne by the plaintiff. There are so many items mentioned with reference to which, according to the defendant the plaintiff, has to bear the expenses for maintaining and also for repairing and hiring of certain items. This question has to be considered at the time of the trial of the case.

(4) The plaintiff sent a reply dated 14.6.1995 repudiating the claim of the defendants and also invoking the Clause 7 of the license deed and stated that the license stood revoked with effect from the mid-night of 31st July 1995. The plaintiff also stated that under Clause 9 of the license agreement it was the duty of the defendants to maintain the Restaurant in a good condition. On the basis of these allegations the reliefs are claimed by the plaintiff.

(5) The defendants filed the written statement on 13.03.1996 repudiating the claims of the plaintiff. The main thrust of the case of the defendants is that the plaintiff becomes entitled to the sum of Rs. 90,000.00 towards the license fee only if the plaintiff complied with all the terms and conditions in the license deed dated 14.07.1994 including taking care of the maintenance, major repairs of the said property and proper upkeep of the Restaurant.

(6) The plaintiff filed Ia No. 32/96 under Order Xxxix Rules I and 2 claiming the following reliefs: A)Pass ad-interim orders restraining the defendants and their agents, representatives or anyone acting through them or on their behalf from: i) illegally and unauthorisedly using the trade name of 'Mughlai Mahal Northend' to run the said Restaurant business and selling/alienating /transferring /altering /modifying or creating third party interests in the said premises owned by the Plaintiff and unauthorisedly occupied by the defendants. ii) selling/alienating/misappropriation /damaging the assets and other properties belonging to the Plaintiff and lying in the premises of which the Defendants are in unauthorized occupation and to hand back the said assets and belongings of the Plaintiff as per the Schedule to Annexure 'B' in a fit and working condition as they were at the time the same were handed over to the defendants for use b) pass ad-interim orders directing the defendants and their agents, representatives or anyone acting through them or on their behalf to: i) Pay damages Mense profits @ Rs. 90,000.00 per month from the date of suit till date of handing over vacant possession of the premises as damages."

(7) On the facts and circumstances of this case the plaintiff cannot be denied the relief of injunction with reference to the alienation of the property in view of the fact that the plaintiff has filed Ia No. 1715/96 under Order Xxxix Rule 10 Civil Procedure Code for depositing of the amount by the defendants, the question of granting injunction in the form in which it is prayed for by the plaintiff need not be granted at this stage. However, there shall be an injunction restraining the defendant, its representatives from selling, alienating, transferring, altering, modifying or creating any third party interest in the premises owned by the plaintiff and further restraining from selling, alienating, misappropriating, damaging the assets and other properties belonging to the plaintiff and lying the premises of which the defendants are in occupation as per the Schedule to annexure B to keep them in a fit and working condition as they were at the time the same were handed over to the defendants, until the disposal of the suit.

(8) I shall take up Ia No. 1715/96 filed by the plaintiff under Order Xxxix Rule 10 Civil Procedure Code read with Section 151 CPC. The Applicant/plaintiff has prayed for a direction to the defendants to pay a sum of Rs.7,41,000.00 towards the license fee for the period from 14.11.1994 till 14.07.1995, and further prayed for a direction to the defendants to pay a sum of Rs. 6,24,000.00 for the period from 15.07.1995 till 29.02.1996 (total comes to Rs. 13,95,000.00 ) and further a direction to the defendants to pay to the plaintiff a sum of Rs. 90,000.00 every month.

(9) The defendants have filed the reply staling that the plaintiff has not acted in accordance with the terms of the license deed. The entire amount due to the plaintiff has been paid as duly effected in the books of accounts maintained by the defendants and all amounts payable upto the month of February 1995 stands paid and as a matter of fact a sum of Rs. 30,000.00 has been paid in excess which has to be adjusted towards the lease money paid for the month of March 1995. The defendants would also state that they have been paying the electricity charges which are payable by the plaintiff. It is also stated that the two Air conditioners which were taken on Hire Purchase by the plaintiff from M/s Virendra Referigeration were taken away by the said firm despite protest by the plaintiff since the plaintiff did not pay the hire charges. Because there are no Air Conditioners banquet hall could not be used and the defendants were put to loss. The defendants have incurred expenses to the tune of Rs. 3,52,921.86 on various items of maintenance and, therefore, the defendants are not liable to pay anything to the plaintiff.

(10) I do not appreciate the stand of the defendants. Once there is a license deed the obligation undertaken by the defendants must be discharged. The defendants would say that the licence deed provides for the running of the Restaurant by the defendants and all items for running of the Restaurant must be provided by the plaintiff, a curious and untenable stand taken by the defendants. The defendants cannot resist the application by stating that they are incurring expenditure every day and, therefore, they will adjust the same against the money payable by them to the plaintiff. The learned counsel for the defendants Mr. Kalra submitted that this Court should go into the details of the running of the Restaurant. Even small items like napkins cutlery are to be substituted by the plaintiff. The carpet and bulbs and all those things should also be substituted by the plaintiff. That is not the arrangement between the parties. The arrangement is that at the end of the licence period' the articles entrusted to the defendants must be given back to the plaintiff in good condition. A small item got damaged or lost they have to be made good by the defendants. The defendants cannot insist that the plaintiff should always be present in the premises looking to the maintenance and the upkeep of the Restaurant and that is not done the defendants are justifying in refusing to pay the license fee. The learned counsel for the defendants is trying to misconstrue the agreement and the learned counsel is trying to read something in the agreement which is not there.

(11) The learned counsel for the defendants Mr. S.P. Kalra relied upon two decisions of this Court i.e. M/s Jwala Pershad Ashok, Ashok Kumar Chopra and ors Vs. M/s Nath Tubes Pvt. Ltd. Air 1994 Del 317 and -Brig S.s. Pun (AVSM) Retd. Vs. R. Chander Shekhar 1994 91) Ad Delhi 98. The facts of these cases are distinguishable I fail to see as to how they could be applied to the facts of this case.

(12) Mr. S.P. Kalra, learned counsel for the defendants also contended that the' defendants have paid a sum of Rs. 12,00,000.00 as an advance to the plaintiff and, therefore, there is sufficient security with the plaintiff and the plaintiff now cannot seek a direction for the payment of the amounts. The learned counsel for the plaintiff submits that the obligation of the defendants is recurring every month they have to pay 90,000.00 to the plaintiff. There is absolutely no justification on the part of the defendants in declining to pay the amount. Therefore, I have no hesitation in directing the defendants to pay a sum of 17,55,000.00 (for the period from 14.11..1994 upto 30.06.1996) to the plaintiff within four weeks from today. The defendant shall pay Rs. 90,000.00 per month to the plaintiff. If the amount is not paid to the plaintiff the defense of the defendants would stand struck off. Therefore, Ia 1715/96 is ordered accordingly.

(13) The plaintiff has filed IA. No. 1623/96 under Order Viii Rule 10 Civil Procedure Code on the ground that the defendants had not filed the written statement. Now that' the defendants have filed the written statement this application has become infructuous. Therefore Ia No. 1623/96 is dismissed.

(14) The plaintiff has filed Ia No. 1655/96 under Order Xxxix Rules 2A. According to the plaintiff the defendants have violated the orders passed by this Court and for the purpose of ascertaining the same a Local Commissioner has to be appointed as the defendants are not permitting the plaintiff to inspect the suit premises.

(15) The defendants have filed a reply to the application denying the allegations.

(16) Before considering the question of contempt, I feel that a Local Commissioner should be appointed to ascertain the condition of the premises. Therefore, Local Commissioner should be appointed to be a technical person. I hereby appoint Shri Ashok Sapra, Advocate, 67, Ring Road, Jagpur, New Delhi, Telephone No. 683 4041 as a Local Commissioner. The Local Commissioner shall visit the suit premises and to ascertain the status of additions and alternations made by the defendants and/or to further ascertain and inventories the moveable assets- as mention in Annexure B to the plaint. The Local Commissioner shall have the assistance of the Police. The S.H.O. concerned area shall render all assistance to the Local Commissioner to implement with the order. The Local Commissioner shall file his report within four weeks from today. The plaintiff shall pay a sum of Rs. 10,000.00 as remuneration to the Local Commissioner. Therefore, Ia No. 1756/96 is allowed. Ia No. 32/96 under Order Xxxix Rules I and 2 filed by the plaintiff is allowed to the extent stated above. Ia No. 1715/96 filed by the plaintiff under Order Xxxix Rule 10 Civil Procedure Code for deposit of money is allowed. Ia No. 1623/96 under Order Viii Rule 10 Civil Procedure Code filed by the plaintiff has become infructuous and therefore, the same is dismissed. Ia No. 1756/96 filed by the plaintiff for appointment of the Local Commissioner is allowed. Post Ia No. 1655/96 under Order Xxxix Rule 2A for further proceedings on 14.11.1996. Copy of this order shall be given dasti to the learned counsel for the plaintiff.