Dullop India Limited vs A.A.I.F.R. And Ors.
2002 Latest Caselaw 1239 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the order dated 28th June, 2002 passed by the Appellate Authority for Industrial and Financial Reconstruction (hereinafter referred to as the "AAIFR") which dismissed the application No. 36/2002 filed by the petitioner company. The writ petition is confined to the directions continued in paragraph 42 of the order of the Board for Industrial and Financial Reconstruction (hereinafter referred to as the "BIFR") which was related to directions to clear small dues. This direction was impugned unsuccessfully before the AAIFR leading to this writ petition. Paragraph 42 of the order of the BIFR reads as under:--

"42. Shri Gurdeep Singh, a creditor in respect of lease rentals and payment of electricity dues for the premises taken on rent by the company submitted that his dues of Rs. 96,000/- were not paid by the company despite directions of the Bench. He was holding a decree from the Civil Court for recovery of his dues. The Bench noted that the company was directed specifically to clear small dues of the sundry creditors and the company had not complied with the directions. The Bench, therefore, permitted Shri Singh to continue with the recovery suit already field by him/to be filed and to execute the decree obtained if any, for recovery of his dues."

2. The respondent is the landlord of the premises at B-3/69, Safdarjan Enclave, New Delhi and Dunlop India Limited, the petitioner was a tenant, and the suit for possession and recovery of Rs. 2,47,940/- was filed by the respondent and mesne profit and damages were claimed against the petitioner herein. The amount payable as rent at the relevant time by the respondent was Rs. 16940/- p.m. plus service charges @ Rs. 4800/- per month. The lease was to expire on 30.9.97 and eventually the suit was decreed on 18th March, 2000 and a decree for possession of first floor and second floor of the premises tenanted by the respondent was passed and the respondent was held entitled to damages for use and occupation of the premises at Rs. 21,780/- per month.

3. The order was challenged before this Court and on 8th May, 2001 the petitioner who was in possession of the premises sought further time to deposit the rent as per the order of this Court dated 20th March, 2001 directing deposit of entire rent w.e.f. 1st March, 1998 @ Rs. 21,347/- per month. The time to deposit was extended by two weeks on 8th May, 2001 and on difficulties expressed by the petitioner for making the deposit as aforesaid the time for deposit was extended by two weeks by this Court and consequently the stay of eviction of the petitioner from the premises tenanted was also extended. The payment was still not made even within the extended time. On 3rd January, 2002, the Court noted the plea of the respondent that the petitioner herein was avoiding handing over the possession and the date was fixed by this Court for removal of the goods of the petitioner from the premises. On 17th January, 2002, the Court finally appointed Shri R.K. Kapoor as a Court Commissioner to remove the goods of the petitioner lying in the premises and, therefore,e goods from the premises were removed and the possession was handed over to the respondent as noted in the order dated 31st January, 2002 and the appellant withdrew its appeal. The interim application for stay of dispossession also stood dismissed. However, the petitioner did not make the deposit of rent in spite of having benefitted from an extended tenure by virtue of this Court's interim orders which were conditional on deposit of rent.

4. From 20th March, 2001, the petitioner has been seeking time from this Court right up to 31st January, 2002 to make the payment of the rent and while enjoying the benefits of the said interim order on the basis of statement that it would deposit the rent, has failed to comply with the orders dated 20th March, 2001 and 8th May, 2001 granting extension of time for deposit of rent. Thereafter there were three more hearings dated 3rd January, 2002, 17th January, 2002 and 31st January, 2002 and the possession was eventually handed over to the respondent after protracted litigation suffered by the respondent for no fault of his. The petitioner after having enjoyed the benefit of interim orders of this Court by staying in the premises from 20th March, 2001 right up to 31st January, 2002 cannot now be heard to complain that he cannot be asked to make the payment as per the order of the AAIFR and also as prayed by the appellant in its appeal in this Court in seeking extension of stay of dispossession from the premises. We are consequently satisfied that without going into the merits of the petitioner's case, its conduct is such, that having availed of the discretion of this court by seeking time to pay and having enjoyed the interim order without complying with the orders of payment of rent, it is a fit case where this Court should not exercise its discretionary jurisdiction under Article 226 in favor of the petitioner. The writ petition is thus dismissed accordingly.