Sh. Ashok Goyal vs Icici Prudential Life Insurance ...
2009 Latest Caselaw 2513 Del

*           HIGH COURT OF DELHI : NEW DELHI

+           IA No.6755/2009 in C.S. [OS] No.1711/2006

                                  Order reserved on:    3rd July, 2009

%                                 Decided on:           7th July, 2009

Sh. Ashok Goyal                                      ...Plaintiff
                       Through : Mr. Sandip Sethi, Sr. Adv. with
                                 Mr. Ashish Jain, Adv.

                       Versus

ICICI Prudential Life Insurance Com. Ltd. & Ors.      ....Defendnts
                      Through : Mr. Pradeep K. Bakshi, Adv. with Mr.
                                 Rajat Navet, Adv. for Defendant No.1
                                 Mr. Ravi Gupta, Adv. with Mr. Ankit
                                 Jain, Adv. for Defendant No.2
                                 Mr. Manish Bishnoi, Adv. for
                                 Defendant No.4(C)

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                  No

2. To be referred to Reporter or not?                               No

3. Whether the judgment should be reported                          No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of the application filed under

Section 151 CPC filed by the defendant no.1 praying therein to :-

a] Allow the Defendant no.1/Applicant to hand over possession and deposit the key of suit premises [Ground and Mezzanine Floor] of property bearing no.SF-29 A/1, Asaf Ali Road, New Delhi to this Hon'ble Court; and b] Release a sum of Rs.14.70 Lac paid by the Defendant no.1 as interest free security deposit [which sum has been deposited by

Defendant no.2 in this Hon'ble Court] and release of Rs.18.30 Lac deposited by the Defendant no.1 with this Hon'ble Court; and c] Modify the order dated 24.9.2007 to the extent it directs payment of Rs.5.5 Lac per month for use and occupation of the premises as possession of the suit premises has been handed over to this Hon'ble Court"

2. The brief facts of the matter are that the plaintiff has filed

this suit against the defendant no.1 and other defendants alleging that

the plaintiff is the co-owner of the ground floor of the property no.29/1,

Asaf Ali Road, Darya Ganj, New Delhi, which property has been taken

on lease by the defendant no.1 from defendant no.2.

3. The said property, according to defendant no.1, has been

taken on rent from M/s.Om Prakash & Sons through its Manager Shri

Vinod Kumar Goyal, who represented to the defendant no.1 that

M/s.Om Prakash & Sons was the absolute owner of the ground and

mezzanine floor of the property bearing no.SF-29 A/1, Asaf Ali Road,

New Delhi.

4. The said property was taken on rent vide a lease deed dated

25.5.2006, which was entered into between M/s.Om Prakash & Sons

and defendant no.1 for a period of nine years commencing from

9.7.2006 and the monthly rental was fixed as Rs.2,46,675/-.

5. The defendant no.1 also deposited interest free refundable

security amounting to Rs.14,80,050/- in favour of M/s.Om Prakash &

Sons.

6. It is stated by defendant no.1 that it started work for

improving the condition of the premises and spent approximately Rs.60

Lac on the same and in the meanwhile, the plaintiff filed the present suit

claiming himself to be the co-owner of the property and claimed reliefs

as per the prayer clause of the suit.

7. The defendant no.1 has submitted in the application that in

view of the prevailing litigation in respect of the suit premises, he is

constrained to vacate the same since the plaintiff and other defendants

are claiming themselves to be the co-owners of the property and in order

to avoid any complication, the defendant no.1 is filing the present

application for handing over the possession and depositing the key of

the premises in this court.

8. This application filed by the defendant no.1 is strongly

opposed by the plaintiff, inter alia, on various grounds that without

seeking any modification or clarification of the order dated 24.9.2007

passed by this court and in utter disregard to the said order, the

defendant no.1 apparently in collusion with defendant no.2 started

deducting TDS in the name of M/s.Om Prakash & Sons, an entity which

is not entitled to receive the said amount being deposited in the court.

9. There is no such direction by this court to deposit any

amount after deducting TDS in the name of any entity. The plaintiff

further argued that he apprehends that the whole amount of Rs.18.30

lac deposited in the court, if released to the defendant no.1 as prayed for

in the application, it would be impossible for the plaintiff to recover the

same if the suit is finally decreed in his favour and therefore, the

present application is liable to be dismissed.

10. In order to decide the present application, the order dated

24.9.2007 has to be considered, which reads as under :-

"I have heard the counsel for the parties. As an interim arrangement, the defendant No.1 shall deposit a sum of Rs.5.5 lac each month for the use and occupation of the premises in question. This order shall opearate w.e.f. today. Insofar as the period commencing on 25.5.2006 till date, the issue of whether the payment would be @5.5 lac per month, would be considered on the next date of hearing. In addition to this sum of Rs.5.5 lac to be paid monthy, the defendant No.1 shall also deposit an amount of Rs.18.30 lac. These payments and deposits shall be made in court till further orders. The defendants No.2 shall also deposit the sum of Rs.14.70 lac less amount of legitimate expenses towards brokerage and any house tax or electricity charges paid on production of receipts by the defendant No.2. This amount shall also be deposited with the Registrar of this Court and await further ordres with regard to the disbursement to the parties. It is made clear that these payments are made without the prejudice to the rights and contentions of the parties. The monthly deposits shall be made in adavance by the 7th day of each month. The other deposits be made within two weeks. The defendant No.1, on making the deposits, shall be permitted to use the premises. The amounts which would be deposited would be kept by the Registrar in fixed deposits so that the same earn interests. The initial period of the deposits shall be for a term of one year to be renewed from time to time, if necessary.

Renotify on 18.02.2008."

11. Learned counsel for the defendant no.1 has made a specific

statement that as far as payment of Rs.5.5 lac per month as per order

dated 24.9.2007 is concerned, the same has been regularly deposited by

the defendant no.1 except the TDS which was deducted and the

certificate from time to time in this regard has been issued to M/s.Om

Prakash & Sons.

12. He further states that by this application, defendant no.1

intends to hand over the possession and deposit the key of the suit

premises in this court and there is no prayer in the application for

deletion of its name from the array of parties. He further states that

ultimately if the court finds that the TDS has been wrongly deducted,

the said amount can be adjusted against the security deposits by the

defendant No.1 to the tune of Rs.32 lac or more.

13. Learned counsel further states that since there is litigation

about the ownership of the suit property amongst the plaintiff and other

defendants, therefore, in order to avoid any complication, the defendant

no.1 has decided to vacate the premises. He further states that

admittedly Rs.18.30 lac has already been deposited with the Registrar

General of this court as per the said order as well as defendant no.1 has

deposited a sum of Rs.14.75 lac with the defendant no.2, therefore, the

dispute of TDS can easily be adjusted if the suit is ultimately decreed in

favour of the plaintiff.

14. He also states that as per the lease deed dated 25.5.2006, the

monthly rent was fixed at Rs.2,46,675/- as observed in the order dated

24.9.2007. The question of payment, for the period commencing from

25.5.2006 till the date of the passing of the said order i.e. 24.09.2007

can be considered in due course and incase at the final stage, the Court

comes to the conclusion that the defendant no.1 was liable to pay Rs.5.5

lac per month for the period from 25.5.2006, the defendant no.1

undertakes to pay the said amount for the said period itself or the said

amount can be adjusted as suit security amount already deposited.

15. Learned counsel for the defendant no.2, on the other hand,

has taken me to the contents of the affidavit of Shri Vinod Kumar

Goyal, defendant no.2 herein, filed before this court dated 23.10.2007

wherein it is categorically stated by him that on account of brokerage,

house tax and electricity, a total expense to the tune of Rs.14,93,854/-

has been incurred by the defendant no.1 and therefore, the amount of

Rs.14.70 lac has not been deposited by the defendant no.1 in terms of

the order dated 24.9.2007.

16. Learned counsel for the defendant no.2 states that it is

mentioned in the order that the said amount was to be deposited by

defendant no.2 subject to adjustment of the amount of legitimate

expenses towards brokerage and any other house tax and electricity

charges paid on production of receipt by the defendant no.2.

17. Learned counsel for the defendant no.2 has shown the

attached receipts filed with the affidavit in support of his contention

except the petty amount spent by him. The defendant no.2 also states

that he has received the electricity bill to the tune of Rs.82,000/-, which

is due from defendant no.1 and which is yet to be paid. Learned counsel

for the defendant no.1 states that the said amount can also be adjusted at

the appropriate time if the said amount is payable by the defendant No.1

but the defendant no.2 has denied that the firm, M/s.Om Prakash &

Sons, is not in existence as alleged by the plaintiff.

18. Learned counsel for the plaintiff has vehemently opposed the

prayers made by the defendant no.1 by stating that order dated

24.9.2007 is very specific wherein the defendant no.1 was asked to

deposit Rs.5.5 lac per month, which has not been deposited by the

defendant no.1 and therefore, the question of deducting any TDS in

favour of M/s.Om Prakash & Sons does not arise and in fact defendant

no.1 is guilty of contempt of the orders passed by this court.

19. It is further argued that defendant no.1 has not complied with

the orders passed by the court, therefore, the defendant no.1 should not

be allowed to hand over the possession and deposit the keys of the suit

premises before this court unless the order is fully complied with . It is

further argued that the defendant no.1 should be directed to deposit

balance amount of the rent @ Rs.5.5 lac from the period 25.5.2006 till

the date of passing of the order dated 24.9.2007, only then the question

of handing over the possession be considered by this court.

20. Learned counsel for the plaintiff has also pointed out that

defendant no.2 has not deposited Rs.14.70 lac as directed by the court,

rather, the affidavit has been filed giving details of expenses some of

which are totally unreasonable and therefore, he be asked to comply

with the order.

21. After considering the contentions of the respective parties

and in view of the facts and circumstances at the present stage, this

Court is of the view that defendant no.1 be permitted to hand over the

possession and deposit the keys of the suit premises (ground and

mezzanine floor of property no. SF-29 A/1, Asaf Ali Road, New Delhi)

before this court within two weeks from today along with an

undertaking that in case ultimately the court decides the matter in favour

of the plaintiff pertaining to the disputed deduction of TDS, the

defendant no.1 shall pay the said amount to the plaintiff or shall adjust

the sum against the security amount already deposited and recover the

same in that case from M/s. Om Prakash & Sons.

22. The defendant no.1 shall also incorporate the statement in the

said undertaking that it will deposit the difference of rent for the period

from 25th May, 2006 till 24th September, 2007 if the court ultimately

decides that the payment of rent for this period ought to have been paid

@ Rs.5.5 lac per month or any other amount, which ultimately will be

fixed by the court at the time of final disposal of the matter. In this

regard, if any amount is due from defendant no.1, the said amount can

be adjusted against the security amount and if any amount is still due

after adjustment, the same shall be paid as per direction of the Court.

The question of rent for the period from 25.5.2006 to 24.9.2007 is kept

open, which shall be determined after adducing of evidence and final

disposal of the suit.

23. As regards the deposit of Rs.14.70 lac by the defendant no.2

as already mentioned above, the defendant no.2 has filed an affidavit to

the effect that he has also incurred a total expense of Rs.14,93,854/- on

many heads, the details of which are mentioned in paras 1 to 11 of the

affidavit. However, the defendant no.2 shall also file an affidavit within

four weeks by way of an undertaking stating therein that in case

ultimately it is found that the defendant no.2 has incurred less expense

than not which is mentioned in the affidavit, then the defendant no.2

shall deposit the remaining amount as directed by the Court at the time

of passing of the final order.

24. In view of the above discussion, relief (a) of the present

application is disposed of. The reliefs (b) and (c) of the application are

rejected at this stage.

This application stands disposed of accordingly.

C.S. [OS] No.1711/2006

List the matter before Joint Registrar on 22nd September, 2009.

JULY 07, 2009                        MANMOHAN SINGH, J.
SD