Delhi High Court
M/S Annapurna Infrastructure P. ... vs M/S Indiabulls Retail Services ... on 30 November, 2009
Author: S.Ravindra Bhat
14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON: 30.11.2009
+ CS (OS) 493/2009
M/S ANNAPURNA INFRASTRUCTURE P. LTD. & ANR. ... Plaintiffs
Through: Mr. Harsh Malhotra with
Mr. Rajender Aggarwal, Advocates
versus
M/S INDIABULLS RETAIL SERVICES LTD. & ANR. ..... Defendants
Through: Mr. Rajiv Nayyar Sr. Advocate with
Mr. Akshay Ringe, Advocates for defendant No.1
Mr. A.K. Thakur, Advocate for defendant No.2
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1.
Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
HON'BLE MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
% IA No. 8238/2009 (under Order 39 Rule 10 CPC)
By the present application, the plaintiffs seek a direction for payment of
admitted amount by the Defendant No.1.
2. The facts necessary to decide the present application are that the second
defendant constructed a Mall. Out of the total area, 67613 sq. feet were let-out to the
first defendant; the arrangement was recorded in the Memorandum of Understanding
(MOU) dated 23.03.2004; Registered Sale Deed was executed on 23.11.2005. In terms
of the demise, the property was let-out, the parties entered into an agreement of lease
CS (OS) 493/2009 Page 1
with lock-in for a period of 54 months. It is not disputed that the plaintiffs purchased
the property through registered sale deeds. The plaintiffs' sale deed was in respect of
the said portion of the premises and the registered deed was executed by the Second
Defendant owner, in favour of the plaintiff on 08.08.2008. Para No.6 of the said
document recorded that the rent for the period 01.04.2008 onwards was payable
directly to the vendee i.e. plaintiff by the first defendant tenant. The said stipulation
reads as follows:-
"That the vendor assures the Vendee that the said Premises
is free from encumbrances such as sale, gift, mortgage,
disputes, litigation, acquisitions, attachment, in the decree
of any court, lien, court injunction, Will, Trust, Exchange,
legal flaws claims etc."
3. The first defendant, on 08.09.2008 issued a notice to the second defendant
(Vendee) stating that it had intention of terminating the lease deed w.e.f. 14.09.2008.
The tenant was made aware of the transaction whereby the second defendant
conveyed the property to the plaintiff; it replied to the notice dated 01.09.2008, issued
in this regard by the plaintiff.
4. The plaintiff submits that the Defendant No.1/tenant is liable to pay admitted
rent in terms of the lease deed, directly to it. It is also submitted that till date, actual
possession of the premises has not been handed-over to the plaintiff or the second
defendant originally despite the so-called termination of tenancy which is also
disputed by saying that the tenant was bound by the period stipulated, to continue in
the premises for a minimum of 54 months.
5. It is submitted by the tenant that the original vendor had not complied with the
terms of the lease, particularly the stipulation as regards extending proper facilities.
Reference is made in this regard to the notice to the vendor dated 5.8.2008 which
refers to four deficiencies i.e. regarding security, standards of AC in the building, non
CS (OS) 493/2009 Page 2
performance of dedicated chillers, and frequent breakdown of escalators. It is
contended therefore, that in terms of the lease deed, the tenant/Defendant No.1 was
not liable to pay rent and was empowered to suspend that obligation, claiming
adjustment.
6. The Court has carefully considered the submissions. The second defendant
owner who leased the premises does not dispute the transaction whereby the property
was sold to the plaintiff. The first defendant cannot impugn the sale transaction, and
was concededly only as a tenant. Prima facie, the provisions of Section 116 of the
Evidence Act estopp the plaintiff/tenant from questioning the title of the subsequent
purchaser, having regard to the fact that the original vendee concedes to the sale
transaction.
7. So far as the allegation pertaining to deficiency in the services alleged against
the plaintiff and the original vendee are concerned, the letter dated 05.08.2008 is
general and does not particularize the time, dates or any other specifics in this regard.
The tenant does not dispute having entered into MOU on 23.03.2004 and that the
lease deed was executed on 23.11.2005. In these circumstances, the general allegation
of a service whether by the original vendor or the subsequent purchaser, cannot, in
the opinion of the Court, be a ground for denying an appropriate order under Order 39
Rule 10, CPC. It was stated during the course of hearing that the first defendant
tenant had moved this Court under Section 9 of the Arbitration & Conciliation Act for
an interim order/direction that the keys be deposited. The plaintiff had apparently
moved for being arrayed in the proceeding but was denied that relief since it was not a
party to the Arbitration agreement. This Court had meanwhile observed that the first
defendant that was not a party.
8. In view of the above discussion, this Court is of the opinion that the pleadings
CS (OS) 493/2009 Page 3
and materials on record are sufficient to dispose of the application with the direction
that the first defendant to hand over rent for the period of 01.04.2008 to 14.09.2008
to the plaintiff; the rent being in terms of the lease deed dated 23.11.2005. The
payment is to be made within two weeks from today. IA bearing No. 8238/2009 is
allowed and all the rights and contentions of the parties in respect of the other issues
arising in the suit are however kept open.
Counsel for the defendant No.1 submitted that it is open to the plaintiff to take
back possession, even though the offer for handing over possession was made earlier.
In these circumstances, plaintiff shall take possession in case, the defendant offers the
same. The taking over of possession is without prejudice to rights and contentions, of
the parties.
CS (OS) 493/2009
List on 21st January 2010.
S. RAVINDRA BHAT
(JUDGE)
NOVEMBER 30, 2009
neelam
CS (OS) 493/2009 Page 4
