M/S. Cogent Emr Solutions Ltd. vs Shri. Virendra Kumar Sharma
2009 Latest Caselaw 2326 Del

*      HIGH COURT OF DELHI : NEW DELHI

     RFA App. No.167/2009 & CM No.6685/2009

%               Judgment reserved on: 22nd May, 2009

                Judgment delivered on: 29th May, 2009

M/s. Cogent EMR Solutions Ltd.
Through its Managing Director
Having Registered office at
Cogent Matrix
E-41/4, Okhla Industrial Area, Phase-II,
New Delhi-110 020.                 ....Appellants

                         Through: Mr. Sanjiv Puri, Sr. Adv.
                                  with Mr. Sonal Sinha
                                  and Ms. Divya Jain,
                                  Advs.

                    Versus

Shri. Virendra Kumar Sharma
S/o. PT. Durga Dass
R/o. Flat No.4, Meera Bai Polytechnic
Campus, Maharani Bagh,
New Delhi-110065.                  ....Respondents.

                         Through: Nemo.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

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
   in the Digest?                                         Yes




RFA No.167-09                                    Page 1 of 16
 V.B.Gupta, J.

Appellant has filed the present appeal,

challenging the order dated 15th April, 2009 passed by

Additional District Judge, Delhi, vide which it was held

that respondent is entitled to recovery of arrears of

rent amounting to Rs.11,85,000/- and also damages @

Rs.3,95,000/- p.m. till possession of the suit premises is

handed over to him. Respondent was also entitled to

interest @ 15% per annum on the said amount,

pendentelite and for future, till realization.

2. Brief facts of this case are, that respondent had

let out a part of premises constructed on Plot No.E-

41/4 (Block-E), Okhla Industrial Area Phase-II, New

Delhi, at a monthly rent of Rs.3,95,000/- to the

appellant. Appellant made defaults in making payment

of the rent, as some of the cheques issued were

dishonoured and later on paid, after repeated requests.

On some occasions, appellant had been very late in

making the payment of the rent. Since, appellant did

not make payment for the month of May, June and July,

2008, despite repeated requests and even after service

of Legal Notice dated 8th July, 2008, vide which the

tenancy of the appellant was terminated. As appellant

is in unauthorized occupation of the premises w.e.f. 1st

August, 2008, as such he is liable to pay

damages/mense profit @ Rs.5 lacs p.m., w.e.f. 1st

August, 2008, till handing over of the possession,

which is the prevailing rate of rent of such like

premises in the area.

3. A legal notice dated 6th August, 2008 to this

effect, was also served upon the appellant, but he did

not comply.

4. In the written statement filed by the appellant,

relationship of landlord-tenant has been admitted. It is

stated that appellant had been taking every possible

care, that the rent is received by the respondent in

time. Appellant went to pay the rent for three months

i.e. May, June and July, 2008 to the respondent, but

respondent refused to accept the same and appellant is

ready and willing to pay the said rent for these three

months.

5. It is further alleged, that appellant vide letters

dated 4th March and 2nd April, 2008, communicated the

respondent, about the tariff violation issued by BSES

Rajdhani Ltd. of Rs.7.58 lacs, for the period

September, 2006 to March, 2007. Appellant is not

liable to pay this amount, as it does not pertain to the

period of lease. Appellant filed a petition for quashing

of this demand of BSES, which is pending in this Court.

6. As far as receipt of legal notice dated 6th August,

2008 is concerned, appellant denied the receipt of the

same. Regarding notice dated 8th July, 2008, there is

no specific denial.

7. It is contended by learned counsel for the

appellant that it was the respondent who refused to

receive the rent. The appellant did not violate any

conditions laid down in the lease and as such

termination of the lease is bad in law.

8. It is further contended that no legal notice has

been received by the appellant and it is a matter of

evidence, as to whether the lease has been terminated

in accordance with the provisions of law. It is also

contended that there has been no admission on the

part of the appellant and as such, the trial court ought

not to have passed under Order 12 Rule 6 CPC.

9. Learned counsel for the appellant, in support of

its contention cited certain judgments of Supreme

Court. In Manager, Reserve Bank of India,

Bangalore v. S. Mani & Ors. (2005) 5 SCC 100, it

was held;

"Failure to prove a defence does not amount to an admission and nor does it reverse or discharge the burden of proof."

10. In Balraj Taneja & Anr. v. Sunil Madan &

Anr. (1999) 8 SCC 396, it was held;

"Though a fact stated in the plaint may be treated as admitted, the Court may, in its discretion, still require such "admitted

fact" to be proved otherwise than by such admission. This is an exception to the general rule of evidence that a fact which is admitted need not be proved."

11. Next case is of this Court, Parivar Seva

Sansthan v. Dr. (Mrs.) Veena Kalra & Ors. 86

(2000) DLT 817 (DB). In this case, principles laid

down in Balraj Taneja (Supra), were followed.

12. Relationship of landlord-tenant between the

parties, has been admitted by appellant.

13. There is no dispute about the rate of rent being

Rs. 3,95,000/- p.m.

14. Appellant does not dispute the arrears of rent @

3,95,000/- p.m., which are due since May, 2008, as in

the written statement, it is stated, that appellant is

taking every possible care that the rent is received by

respondent on time. It is also stated in the written

statement, that appellant went to pay rent to the

respondent, but respondent refused to accept the

same, for reasons best known to him and appellant was

and is ready and willing to pay rent for three months

i.e. for May, June and July, 2008.

15. Thus, there is clear admission on the part of the

appellant, that rent for the period May to July, 2008 is

due. Now, it is May, 2009. There is nothing on record

to show as to whether appellant had paid any rent

w.e.f. May, 2008 till date.

16. The stand taken by appellant in the written

statement is that BSES Rajdhani Ltd, had issued a

demand of Rs.7.58 lacs for the period of September,

2006 to March, 2007, which the appellant is not liable

to pay, as this demand does not pertain to the period of

lease.

17. In this regard, it may be pointed out that,

appellant has already challenged that demand and has

filed a petition in this Court. In those proceedings, the

present respondent, has not been made as a party.

Thus, this demand of Rs. 7.5 lacs, has got no bearing to

the facts of the present case.

18. The only issue which remains for consideration is,

as to whether any notice terminating the tenancy of

the appellant was given by the respondent or not.

19. As per averments made in para 4 of the plaint,

legal notice dated 8th July, 2008, was duly served upon

the appellant, vide which the tenancy of the appellant

was terminated.

20. There is no specific denial in the written

statement to these averments.

21. Another legal notice dated 6th August, 2008 was

also served upon the appellant, though appellant

denied receipt of this notice.

22. Thus, it is clear from the written statement that,

appellant does not deny the receipt of legal notice

dated 8th July, 2008. It would be pertinent to point out,

that appellant moved an application seeking

amendment of written statement to this effect in the

trial court, but that application was disallowed.

23. Coming to legal notice dated 6th August, 2008, the

same has been duly served upon the appellant.

24. It would be fruitful to refer to the findings given

by the trial court on this issue, which read as under;

"The record reveals that the plaintiff served a legal notice dated 6th August, 2008 on the defendant. Vide the said notice, the defendant was again called upon to vacate the premises in terms of the notice dated 8th July, 2008 and to pay the damages. The receipt of notice dated 6th August, 2008 was denied by the defendant. The said notice dated 6th August, 2008 was, however, served upon the defendant and was confirmed by the postal authorities as delivered vide their certificate dated 18th December, 2008. The defendant, therefore, deliberately and falsely denied the receipt of the said notice. It is however evident and there is no doubt that the notice dated 6th August, 2008 was also duly served on the defendant on 7th August, 2008. The plaintiff vide its notice dated 8th July, 2008 clearly conveyed that he was aggrieved by the defendant's illegal acts and did not want to continue the tenancy anymore and terminated the tenancy calling upon them to handover the

peaceful possession on or before the midnight of 31st July, 2008. The defendant was also called upon to make the payment of due rent immediately with interest @ 15% per annum. The plaintiff vide the second notice dated 6th August, 2008, referred to the notice dated 8th July, 2008 and again called upon the defendant to vacate the premises in terms of notice dated 8th July, 2008. It is, thus, clear that the plaintiff conveyed his intention to the defendant that it was no more desired as tenant and therefore, the tenancy was validity terminated."

25. Suit of the respondent was thus decreed, under

Order XII Rule 6 CPC.

26. Before delving with the contentions of the

appellant, it would be appropriate to produce the

relevant provisions and the settled law with regard to

relevant provisions.

27. Oder XII Rule 6 CPC reads as under:

"6. Judgment on admissions:-

(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own

motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

28. Supreme Court in Uttam Singh Dugal & Co.

Ltd. v. Union Bank Of India and ors., AIR 2000 SC

2740 held:-

"As to the object of the Order XII Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the

meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."

29. Appellant herein, in its written statement, in reply

to para Nos. 2 to 4 of plaint on merits, has stated;

"2-3. That the contents of paragraph nos. 2-3 are wrong and denied. It is incorrect and denied that the Defendant made defaults in making the payments of the rent as alleged. It is worth to mention here that the Defendant is taking every possible care that the rent has been paid on time and with utmost diligence and urgency. It is also pertinent to mention here that it is not that the Defendant, who is causing harassment or trouble to the Plaintiff. Needless to mention herewith that the Defendant has deposited 3 months' rent amounting to Rs. 13,35,000/- (11,85,000/- under lease deed dated 26.12.2006 and Rs. 1,50,000/- under lease deed dated 07.06.2007) which itself is a substantial amount and further more originally, the Defendant has let out premises vide lease deed dated

26.12.2006 on monthly rental of Rs. 3,95,000/- and subsequent to that after experiencing of satisfactory conduct of the Defendant, the Plaintiff has entered into further lease deed dated 07.06.2007 for the balance area of the premises on monthly rental of Rs.50,000/-."

"4. That the contents of paragraph no.4 are false, misconceived, incorrect and vehemently denied. It is incorrect and denied that the Defendant has not paid rent for three months i.e. of May, June and July, 2008. It is submitted that the Defendant went to pay for the rent to the Plaintiff, but, the Plaintiff refused to accept the same for the reasons best known to him. It is worth to mention here that the Defendant was and is ready and willing to pay the said rent for three months, i.e. for May, June and July, 2008 and hence therefore such delay is not due to the Defendant and there is no violation of the Lease Deeds as alleged......"

30. The above averments made in the written

statement, clearly show that appellant, admits the

Landlord and tenant relationship. Execution of

registered lease deed dated 26th December, 2006 has

not been challenged by the appellant, at any stage of

proceedings. Appellant also does not deny that arrears

of rent were and are still due.

31. As regards legal notice dated 8th July, 2008,

appellant's written statement is silent on this point.

However, the certificate issued by postal authorities,

clearly shows that appellant had received the legal

notice, yet he failed to comply with it.

32. Various judgments cited by learned counsel for

the appellant, are not applicable to the facts of the

present case, as in the present case, relationship of

landlord and tenant between the parties, the rate of

rent and arrears of rent due, are admitted.

33. Only question of dispute is as to whether legal

notice had been served or not and whether there has

been any violation of the terms of the lease agreement.

34. As far as service of legal notice is concerned, as

already stated above, as per findings of the trial court,

there is no specific denial about the service of legal

notice dated 8th July, 2008 and as per certificate,

issued by postal authorities, notice dated 6th August,

2008 also has been duly served.

35. As far as violation of terms of lease deed is

concerned, there is violation of clause 22 of the lease

deed, which read as under;

"That if the Lessee does not pay the lease charges for a period of three months, under this agreement, the Lessers will be entitled to terminate this Lease agreement forthwith and Lessers will also be entitled for all rights that he has on the termination of Lease Agreement."

36. Since, appellant is in arrears of the rent w.e.f.

May, 2008 till date, and there has been violation of the

terms of the lease, under these circumstances, the

respondent is entitled to the relief prayed.

37. Consequently, I do not find any infirmity or

ambiguity in the impugned judgment. There is no

merit in the present appeal and the same is hereby

dismissed.

+CM No.6685/2009

38. Dismissed.

39. Copy of this order be sent to trial court.

40. Trial court record be sent back.

29th May, 2009                      V.B.GUPTA, J.
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