Mr. Subhash Chander Gupta vs M/S Thanigai Murugan ...
2009 Latest Caselaw 572 Del

 *           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of Reserve: February 02, 2009
                                   Date of Order: February 17, 2009

+ IA No.1432/2009 in CS(OS)2324/2008

%                                                           17.02.2009

      MR. SUBHASH CHANDER GUPTA ...Plaintiff
                   Through: Mr.Ajay Kumar Tandon with
                            Mr. D. Hussain, Advs.

      Versus

      M/S. THANIGAI MURUGAN RESTAURANTS(P) LTD.
                                         ...Defendant
                    Through: Mr. D.D. Singh, Adv.

      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

1. This application has been made by the plaintiff under

Order 12 Rule 6 CPC for passing a decree of possession of suit

property on the basis of admissions made by the defendant in the

pleadings and through documents.

2. The brief facts relevant for purpose of deciding this

application are that the plaintiff had leased out premises no. P-15,

Connaught Place, New Delhi to the defendant vide a

registered lease deed dated 10th December, 2004. As per the lease

deed, the lease of premises in favour of the defendant started on 1st

October, 2003 for a period of 5 years and lease expired on 30 th

September, 2008. The rent of the premises is undoubtedly above

Rs.3500/- per month therefore, the tenancy was not covered under

Delhi Rent Control Act. As per terms of lease, the lease could be

further renewed after expiry of initial period of 5 years with mutual

consent in writing. The relevant paragraph which provides for

renewal of the lease reads as under:

"4. That the Lease will be initially for a period of five years from 1st October, 2003 to 30th September, 2008 and the Lessee shall request in writing for further extension if so desired. The Lease period shall be further extended on terms and conditions with mutual consent between Lessor and the Lessee. It has been mutually agreed that there shall be no further extension of the Lease, if no request in writing is received three months prior to the expiry of the lease period, the Lease shall stand expired and terminated on 30th September, 2008."

3. The plaintiff submitted that no extension of lease could

be mutually agreed upon between the parties. Thus, the lease

expired by efflux of time on 30th September, 2008. The premises

was not vacated after expiry of lease. The defendants had also not

approached the plaintiff in terms of above clause for extension of

lease at least 3 months before the expiry of lease period. However,

in order to circumvent this clause the defendant handed over to the

plaintiff a letter on 11th August, 2008 bearing date of 1st July, 2008

expressing its wish to extend the lease period. The plaintiff

immediately, i.e., on 18th August, 2008 replied the letter stating that

it has been back-dated and the request for further extension was

not acceded to. However, the defendant did not hand over the

vacant possession The plaintiff thereafter, as a matter of abundant

caution, served a notice dated 18.10.2008 terminating the tenancy

and calling upon the defendant to hand over the possession. The

defendant continued to keep the possession. The rent cheques sent

by the defendant for the months of October and November were not

presented by the plaintiff to avoid any controversy and plaintiff after

filing of the suit would be presenting the cheques, without prejudice

to his rights.

4. In the WS, the execution of lease, the period of lease

etc. are not denied. However, the defendant has taken the stand

that letter dated 1st July, 2008 to the plaintiff seeking extension of

lease was posted to the plaintiff on 1st July, 2008 itself and was

personally handed over to the plaintiff on 1st July, 2008. The

representative of defendant-company, Mr. S.V. Ganapathy was in

regular touch with the plaintiff for execution of fresh lease deed.

The plaintiff had assured execution of fresh lease deed for a further

period of 5 years on enhancement of rent by 30%. It was agreed

that until the fresh lease deed was executed in writing, the rent be

paid by defendant on old rate and the arrears of rent on increased

rate would be payable after signing of fresh lease deed. However,

the plaintiff did not come forward for signing fresh lease deed.

5. The defendant not only denied the right of the plaintiff

to get the premises vacated but also filed a counter claim for

specific performance of the oral agreement between the parties for

further lease of 5 years on increased rent of 30%.

6. It is undisputed fact that the lease signed between the

parties had come to an end on 30th September, 2008. It is also

undisputed fact that parties could not arrive at an agreement and

no lease deed could be executed and registered between the parties

thereafter. While counsel for the defendant stated that the plaintiff

had orally agreed for extension of lease with increased rent @ 30%

over the previous rent. The counsel for the plaintiff refuted that any

such agreement was arrived at and stated that the premises in

question had high rental value as it was situated next to the Metro

Station on the airport line. The commercial value of the premises

had enhanced sharply and the parties could not come to an

agreement regarding future rental. The plaintiff has prayed for

passing a decree under Order 12 Rule 6 CPC on the basis of

admissions as reflected in the admitted documents.

7. The defendant has admitted that the lease executed

between the parties on 10th December, 2004, expired on 30th

September, 2008. It is not denied that no fresh lease has been

executed between the parties and the parties have not been able to

come to an agreement on monthly rent payable for the premises for

a further lease. Clause 4 of the lease dated 10 th December, 2004

categorically provided that the lease could be extended on terms

and conditions mutually agreed between the lessor and the lessee

and in case there is no extension of lease between the parties by

mutual agreement, the lease shall stand expired and terminated on

30th September, 2008. This categorical clause in the lease deed

executed between the parties amounts to admission of the facts on

part of defendant. An admission can be inferred on part of the

defendant either from the pleadings or admitted documents. There

is no dispute about the correctness of the lease deed and expiry of

the lease deed as per clause 4. A plea of oral agreement of the

plaintiff about executing the lease deed has to be given no

weightage because of the express provision in the lease deed that

the further lease has to be in writing. If the parties could have come

to an agreement for execution of lease for further period, they

would have executed a lease deed. Since no lease deed has been

executed, no amount of allegations regarding oral agreement can

be considered. Thus, the lease of the defendant expired by efflux of

time on 30.9.2008. As an abundant caution, lease was also

terminated by the plaintiff by a notice.

I consider that the plaintiff is entitled to a decree under

Order 12 rule 6 CPC in respect of possession of the premises. I

therefore, allow this application of the plaintiff under Order 12 Rule

6 CPC and a decree of possession in respect of suit premises no. P-

15, Connaught Place, New Delhi is hereby passed. The suit shall

proceed in respect of the remaining reliefs of mesne

profits/damages etc. in respect of the premises.

8. Decree sheet be prepared accordingly.

9. List this matter now for framing of issues for remaining

reliefs on 17th July, 2009.

February 17, 2009                           SHIV NARAYAN DHINGRA J.
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