Delhi High Court
Idea Estates Pvt. Ltd. vs Trans Asian Industries ... on 10 February, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: January 30, 2008
Date of Order: February 10, 2009
+ IA No.6727/2008 in CS(OS)1054/2008
% 10.02.2009
Idea Estates Pvt. Ltd. ...Plaintiffs
Through: Mr. Valmiki Mehta, Sr. Adv. with A. Maitri &
Mr. Purthy, Advocates
Versus
Trans Asian Industries Expositions
Pvt. Ltd. & Anr. ...Defendants
Through: Mr.Rajiv Nayyar, Sr. Adv. with
Ms. Ruchi Agnihotri Mahajan, Ms. Anushree Tripathi,
Advocates for D-1.
Mr. S.K. Gandhi & Mrs. Manjula Gandhi, Advs.forD-2.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER:
IA No.6727/2008
1. This application under Order 39 Rules 1 & 2 and under Order 39 Rule
10 CPC has been made by the plaintiff seeking an injunction against the
defendants that defendant No.1 Company be directed to remove their locks
from the premises No.22-A. Janpath, New Delhi and in case defendant
company does not remove the lock and continues in their occupation the said
premises, defendant No.1 be directed to make payment on account of rental
to defendant No.2, Bank, till the time defendant No.1 removes its lock from
the said premises.
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2. Brief facts necessary for deciding this application are that plaintiff and
defendant No.1 and defendant No.2 entered into a lease agreement in
respect of the above property. By this agreement, the defendant No.1 agreed
to take on rent the aforesaid property on a quarterly rental of Rs.10,57,000/-.
However, the rent was to be deposited with defendant No.2, the Bank, since
the plaintiff had taken a term loan of Rs.1500 lac from the Bank. This rent
was being paid by the defendant No.1 continuously from the date of
occupation till 31st January 2007. However, during the month January 2007,
the property was sealed by NDMC when it was in occupation of defendant
No.1. The sealing of the said property was done because of the reason that
the property was meant for residential purposes and was being used for
commercial purposes. At the time of sealing since the property was in
occupation of defendant No.1 seals were put over its locks. Plaintiff has filed
the instant suit for recovery of the possession of the property from defendant
No.1 and seeking mandatory injunction that defendant No.1 be directed to
remove its locks from the said premises. Plaintiff also made a prayer for
recovery of amount of Rs. 24,06,484/- along with accrued interest being
arrears of lease amount.
3. Defendant No.1, the tenant is admittedly not paying the rent since
February 2008. The stand of the defendant No.1 is that the defendant was
assured that the premises in question could lawfully be used for commercial
purposes and the plaintiff had let out the same for commercial purposes
reserving such a high rent. Defendant No.1, after taking the premises, spent
huge amount on making the premises fit for its use by making internal decor
and renovation. It is also submitted by counsel for the defendant No.1 that
the defendant No.1 was taking steps for opening of the seal so that defendant
CS (OS)1054/2008 Idea Estates Pvt. Ltd. vs.TransAsian Industries Expositions P(Ltd.) & Anr Page 2 Of 4
No.1 can use the premises in question again for commercial purposes and has
made appropriate petition/application before the authorities for opening the
seal. It is submitted by counsel for the defendant No.1 that defendant No.1
was within its rights to suspend the payment of the rent as the premises was
lying sealed under the orders of the Supreme Court and could not be put to
use.
4. Counsel for the plaintiff submitted that in case defendant No.1 is taking
a plea of fraud played on it while letting the premises, the defendant had a
choice to avoid the contract and could rescind the contract. If the defendant
No.1 does not terminate the contract and continues having possession of the
said premises, the defendant No.1 was liable to pay the lease amount as
agreed by it. Since it has shown its willingness to continue with the contract
and was not terminating the contract, the defendant No.1 should be directed
to pay the lease amount during the period when it kept the premises under
its lock and key. It is submitted that since the plaintiff had taken huge loan
from the bank, i.e. defendant No.2 and the lease amount was to be given to
the defendant No.2 and has to adjustable against the bank loan and interest,
nonpayment of the lease amount by defendant No.1 shall result into
invocation of SARFAESI Act by defendant No.2 and the property shall be put
to auction resulting into huge loss to the plaintiff.
5. As far as relief of giving directions to defendant No.1 for opening the
lock is concerned, this relief cannot be granted to the plaintiff since this would
result into the decreeing the suit itself. The relief claimed by the plaintiff in
the suit is possession of the premises and if directions are given to defendant
No.1 for opening the lock from the premises so that plaintiff's asserts its
possession, obviously the premises will revert back to the plaintiff. An interim
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relief which practically results into decreeing the suit cannot be granted. As
far as the relief of directions to the defendant for payment of lease amount
during the period when the premises is lying sealed is concerned, the
defendant has raised a triable issue and this issue will have to be considered
in light of the documents and facts which are brought on record during trial. I
consider that it would not be appropriate to give directions to the defendant
No.1 to pay the quarterly lease amount to the plaintiff during pendency of the
instant suit when the premises itself is lying sealed under the orders of the
Supreme Court and cannot be put to use by the defendant. The premises in
question can be put to use substantially only for the residential purposes in
view of the original lease executed in favour of the plaintiff, but it was let out
by the plaintiff for commercial purpose, knowing fully well that this was in
violation of law. Any order passed by this Court giving directions to the
defendant at this stage for paying lease amount agreed between the parties
to the plaintiff shall tantamount to a reward for his unlawful acts despite the
fact that the Supreme Court has put restrictions and directed sealing of the
premises in question.
6. I find no force in this application. The application is hereby dismissed.
CS(OS)1054/2008
List on 30th March 2009.
February 10, 2009 SHIV NARAYAN DHINGRA J.
rd
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