Delhi High Court
M/S. Pharma Ventures ... vs M/S. Senior Media Ltd. on 8 April, 2009
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No.1878/2006
% Judgment reserved on : 25th March, 2009
Judgment pronounced on : 8th April, 2009
M/s. Pharma Ventures International Ltd. ...Plaintiff
Through : Mr. Anil Airi, Adv. with
Mr. Ishkaran Singh, Adv.
Versus
M/s. Senior Media Ltd. .... Defendant
Through : Mr. Sanjay Goswami, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. Vide order dated 25.04.2008, the defence of the defendant
has been struck off. In the counter claim being Counter Claim no.49 of
2008, the following preliminary issue was framed on 25.04.2008 :-
"Whether the counter claim filed by the defendant is
liable to be rejected being barred under the provision of
Order VII Rule 11 CPC? OPD."
2. As per the case of the plaintiff, the plaintiff company is the
lessee of the property bearing no.3, Siri Fort Road, New Delhi
comprising entire ground floor except the garage and entire basement of
the said property and the said property was initially leased to the
plaintiff by the lessor, M/s. Sushant Builders Pvt. Ltd., B-109, Defence
Colony, New Delhi vide lease deed dated 14.03.2003, duly registered on
17.03.2003 as registration no.2040 in book No.I, Vol.no.3268 at page
nos.193 to 199 with the office of the Registrar-V, New Delhi.
3. Thereafter M/s. Sushant Builders Pvt. Ltd. sold the property
to one M/s. Prime Time [India] Limited and had attorned the tenancy in
their favour. The plaintiff is having the rights to further sublet the
leased property and the lease of the plaintiff is subsisting and valid till
date.
4. It is further stated that the defendant is a limited company
under the Companies Act, 1956 and is engaged in the business under the
name and style of M/s. Senior Media Ltd., 1/1, Shanti Niketan, New
Delhi-110021.
5. The plaintiff vide a licence agreement dated 09.05.2005 gave
on licence the property no.3, Siri Fort Road, New Delhi comprising the
entire ground floor except the garage and the entire basement of the said
property to the defendant and the defendant agreed to pay the usage
charges @ Rs.3,60,000/- p.m. for a minimum usage of 225 hours in a
calendar month and Rs.4,00,000/- p.m. being the maximum limit of
usage charges subject to the terms and conditions as stated in the
agreement. As per the said agreement, the licence commenced from 9 th
day of each calendar month and ends on the 8th day of the next month.
6. It is further stated that under the said agreement, the
defendant had deposited a sum of Rs.10 lacs as an interest free
refundable deposit vide cheque no.412601 drawn on Syndicate Bank,
no.2, Kaushalya Park, Hauz Khas, New Delhi.
7. The defendant has not been regular in paying its monthly
usage charges and despite repeated requests, the defendant has not
provided the statement of accounts stating the details of the usage
charges.
8. The case of the plaintiff is that the defendant had issued four
cheques towards payment of the monthly usage charges to the tune of
Rs.2,84,724/- each dated 14.03.2006, 14.04.2006, 14.05.2006 and
14.06.2006 respectively, which were returned as dishonoured by the
bankers of the defendant and was in complete disregard and breach of
the terms of the licence as agreed by the defendant.
9. It is further submitted by the plaintiff that the defendant
being the licensee under the plaintiff in respect of the said premises has
not paid the usage charges of the premises w.e.f. March, 2006 which is
in arrears and have also failed to provide the statement of monthly usage
charges as per the terms and conditions as stated in the agreement.
Despite the repeated demands of the plaintiff, the defendant is
deliberately neither paying the monthly usage charges nor the arrears
nor providing the statement of accounts to the plaintiff.
10. In view of the above circumstances, the plaintiff filed the suit
for recovery of possession, arrears of usage charges along with pendente
lite and future interest and for mesne profits, damages and costs etc
against the defendant.
11. The plaintiff's application under Order 39 Rule 10 CPC
being IA no.11084/2006 was allowed in favour of the plaintiff vide
order dated 19.03.2007 wherein the defendant was directed to make the
payment of use and occupation charges to the plaintiff @ Rs.3,60,000/-.
The defendant was granted four weeks' time to deposit the arrears and
further ordered that the defendant shall continue to pay month by month
use and occupation charges at the same rate to the plaintiff on or before
7th of each English calendar month.
12. Another application was filed by the plaintiff under Section
151 CPC thereby seeking the direction that the defence of the defendant
be struck off on account of non-compliance of the orders passed on
19.03.2007. While disposing of the said application, further six weeks'
time was granted to the defendant to deposit all the arrears in the court
failing which the defence of the defendant shall be struck off.
13. The said order was also not complied with by the defendant,
therefore, vide order dated 07.01.2008 the defence of the defendant was
struck off. Now coming to the question of preliminary issue framed
vide the said order dated 25.04.2008.
14. I have heard the learned counsel for the parties. In the
counter-claim, the contention of the defendant is that the defendant is
the sister/associate concern of M/s. Sushant Builders Pvt. Ltd. and the
Managing Director of the defendant company and that of M/s. Sushant
Builders Pvt. Ltd. is one and the same person. The defendant company
is a licensee of M/s. Sushant Builders Pvt. Ltd., which is the owner of
the suit property and is in use and occupation of the suit premises
comprising basement and ground floor of the property no.3, Siri Fort
Road, New Delhi.
15. It is further contended that the plaintiff was never in
possession of the suit property under the alleged lease agreement dated
14.03.2003 and by which the plaintiff claims to have rented the said
property at a rent of Rs.2400/- p.m. with a right to further sublet the
said property. The rent of the suit property even at the time of creation
of alleged lease deed dated 14.03.2003 was substantially more than
Rs.2400/- p.m. as the said property comprises the entire ground floor
except the garage and the entire basement of the property constructed on
a plot of land admeasuring 500 sq.yds. located at the main Siri Fort
Road in South Delhi.
16. It is further contended that it is beyond imagination that the
said property should have been let out on a rent of Rs.2400/- p.m. to the
plaintiff by the sister concern of the defendant on 14.03.2003 and no
possession of the property was actually and peacefully ever handed over
to the plaintiff under the said lease deed thus, the possession at all time
was with M/s. Sushant Builders Pvt. Ltd. even prior to and after the
execution of the lease deed dated 14.03.2003.
17. It is further contended by the defendant that in order to cover
up some financial transaction between the plaintiff and the said M/s.
Sushant Builders Pvt. Ltd., a camouflage agreement was created under
which the defendant was shown allegedly to be the licensee of the
plaintiff and not that of M/s. Sushant Builders Pvt. Ltd.
18. In the counter claim, the defendant has prayed for passing a
decree of declaration to the effect that the lease deed dated 14.03.2003
and the license agreement dated 09.05.2005 relied upon by the plaintiff
are illegal, void, without any consideration and are not binding upon the
defendant.
19. In reply to the counter claim, the plaintiff has specifically
denied that the defendant company is the sister concern or associate
concern of M/s. Sushant Builders Pvt. Ltd. It is stated that by having
some person as the Managing Director of the two companies cannot be
said to be the sister concern. It is also denied specifically that the
defendant company is the licensee of M/s. Sushant Builders Pvt. Ltd. or
the said company is the owner of the said premises.
20. It is averred in the reply to the counter claim that the owner
of the said property in question, where the licensed premises is situated,
is owned by M/s. Prime Time [India] Ltd. and the plaintiff is the
registered lessee having right to further sublet the leased property. The
defendant is, therefore, licensee under the licence agreement dated
09.05.2005 under the plaintiff on the terms and conditions stated
therein.
21. Learned counsel for the plaintiff has referred the decision
reported as I.T.C. Ltd. v. Debts Recovery Appellate Tribunal 1998[2]
SCC 70 in support of his contention. The Apex Court in para-16 at
page-77 of the said judgment has held as under :-
"16. The question is whether a real cause of action has
been set out in the plaint or something purely illusory has
been stated with a view to get out of Order 7 Rule 11
CPC. Clever drafting creating illusions of cause of action
are not permitted in law and a clear right to sue should be
shown in the plaint. (See T. Arivandandam v. T.V.
Satyapal.)"
22. Another judgment reported as Shiba Prasad Singh vs.
Nilabji Bali, AIR [34] 1947 Patna 45 has also been cited by the learned
counsel for the plaintiff in support of his submissions.
23. I have gone through the pleadings of the parties as well as
documents placed on record, it appears very clearly that the said
property was leased out to the plaintiff by the lessor, M/s. Sushant
Builders Pvt. Ltd., vide the lease deed dated 14.03.2003, which was
registered on 17.03.2003. The extract of the Resolution of the Board
Meeting dated 01.03.2003 establishes the same.
24. It also appears from the record that M/s. Sushant Builders
Pvt. Ltd. sold the property to M/s. Prime Time [India] Ltd., and has
attorned the tenancy in their favour. It also appears that the plaintiff had
a right to sublet the leased property by virtue of letter dated 01.03.2005
and the plaintiff vide the lease agreement dated 09.05.2005 leased out
the property comprising entire ground floor except garage and the entire
basement of the said property to the defendant, who agreed to pay the
usage charges @ Rs.3,60,000/- p.m. for a minimum usage of 225 hours
in a calendar month and Rs.4,00,000/- p.m. being the maximum limit of
usage charges subject to the terms and conditions as stated in the
agreement.
25. Not only that defendant had deposited a sum of Rs.10 lacs as
an interest free refundable deposit by cheque. At the initial stage,
without any doubt the defendant had issued four cheques, the details of
which have been given hereinabove after deducting TDS, however, the
said cheques were admittedly dishonoured.
26. In view of the aforesaid facts and circumstances, it does not
lie in the mouth of the defendant that the defendant is not the licensee of
the plaintiff in respect of the said premises. The lease deed dated
09.05.2005 speaks for itself. It is a clear case of res ipsa loquitur where
the things speak for themselves. In my considered opinion, the
defendant is now stopped from challenging the title of the plaintiff in
the light of Sections 116 and 117 of the Indian Evidence Act as per well
settled position of law reported as Kamalam and Ors. vs.
Sivaprakasam Pillai and Ors., JT 2006 [2] SC 479, Anar Devi (Smt)
v. Nathu Ram, [1994] 4 SCC 250 and Dr. Ranbir Singh v. Asharfi
Lal, [1995] 6 SCC 580.
27. Under these circumstances, the counter claim filed by the
defendant is not maintainable.
28. The preliminary issue framed on 25.04.2008 is decided in
favour of the plaintiff and against the defendant. The counter claim
filed by the plaintiff should also be struck off by this order. Ordered
accordingly.
29. The defendant is liable to pay a cost of Rs.25,000/- to be
deposited in the Delhi High Court Legal Services Committee within
four weeks from today.
MANMOHAN SINGH, J
APRIL 08, 2009
sa
