M/S. Movie Times Cineplex Pvt. ... vs M/S. Mrg Developers Pvt. Ltd. & ...
2009 Latest Caselaw 4198 Del

*          HIGH COURT OF DELHI : NEW DELHI


+          I.A. No. 4175/2009 in CS (OS) No. 2239/2008

                                  Reserved on:           23rd September, 2009

%                                 Decided on:            20th October, 2009


M/s Movie Times Cineplex Pvt. Ltd.                       ...Plaintiff
                   Through : Mr. Harish Malhotra, Sr. Adv. with
                              Mr. Rajender Aggarwal, Adv.

                                  Versus

M/s MRG Developers Pvt. Ltd. & Ors.                   ...Defendants
                  Through : Ms. Geeta Luthra, Sr. Adv. with
                              Mr. Attin Shankar Rastogi, Adv.


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
   in the Digest?                                        No

MANMOHAN SINGH, J.

1. By this order I shall dispose of I.A. No. 4175/2009 filed by

the defendants under Order XXXIX Rule 4 read with Section 151 of the

Code of Civil Procedure, 1908.

2. Brief facts are that the plaintiff filed the present suit for

declaration, permanent injunction and mandatory injunction. A lease

deed was executed between the parties on 23 June, 2004 whereby 2500

sq. ft. was rented out to the plaintiff by defendant no. 1 for a Food Court,

500 sq. ft. being the counter area and 2000 sq. ft. being the sitting area.

The rent amount was decided to be Rs. 1,55,000/- per month. This

payment was to be subject to the fact that the sitting area would be

covered and air-conditioned. The functioning of the Food Court began

on 11 August, 2006. From this date, maintenance charges @ Rs. 4/- per

sq. ft. were also payable. However, as per the plaintiff the said area was

covered with make shift plastic sheets, thereby making defendant no. 1

entitled to rent only for 500 sq. ft.

3. The plaintiff avers that it was given false assurances by the

defendants that the ceiling would be covered and the area would be air-

conditioned in due time etc. Meanwhile, the plaintiff received a show

cause notice from the MCD dated 19 February, 2007 whereby the

premises were to be sealed stating that the place earmarked as the Food

Court by defendant no. 1 was not in consonance with the sanctioned plan

and the same was to be in the manner of a terrace open to the sky.

4. The plaintiff received a closure notice from the MCD on 6

July, 2007 stating that the Food Court in the open space was

unsanctioned. Though the plaintiff got the Food Court de-sealed vide

order dated 2 August, 2007, the area of the same was reduced to only

500 sq. ft., i.e. the covered area. The plaintiff suffered financial losses as

well as loss of reputation. However, the plaintiff had invested over

Rs.1.5 Crore in the said Food Court with the hope that the defendants

would remain true to their word and fix the situation.

5. The property in question was sold to defendant nos. 2 and 3

on 1 February, 2008. The said defendants assured the plaintiff that the

commitments in the lease deed would be honoured. A Deed of

Adherence was signed between the parties on 23 March, 2007. As

nothing was being done, the plaintiff sent various letters and notices to

the defendants to take the requisite action. The defendants replied to one

such letter vide their letter dated 12 July, 2008 wherein it is contended

that the claim of the plaintiff is completely frivolous and vexatious.

According to the plaintiff, defendant no. 4 then threatened to disconnect

all electricity etc. from the Food Court and actually went ahead and

disconnected the same. Thus the present suit.

6. Along with the suit, the plaintiff filed an interim application

under Order XXXIX Rule 1 and 2 being I.A. No. 12026/2008 and in the

presence of both the parties an order dated 24 October, 2008 was passed

directing the defendants to restore electricity, water and the services of

elevators and escalators subject to the payment of arrears of rent for 500

sq. ft. and of maintenance charges @ Rs. 4/- per sq. ft. per month by the

plaintiff within two days as well as furnishing of an undertaking by the

plaintiff's director Mr. Anil Kapur to the effect that if the defendants are

entitled to rent in respect of the remaining 2000 sq. ft. and to a higher

maintenance rate than Rs. 4/- per sq. ft. per month, then irrespective of

whether the plaintiff is able to pay or not, it will be personally liable to

pay the same and in case of default, the same would amount to breach of

undertaking given to the court.

7. In compliance with the said order Mr. Anil Kapur filed an

affidavit/undertaking dated 31st October 2008.

8. The plaintiff thereafter filed an application under Order 39

Rule 2-A of the Code contemplating the violation of the order passed by

the court dated 31 October, 2008 in I.A. No.12026/2008 stating that in

compliance of order dated 24 October, 2008 the defendants were duty

bound to provide electricity, water and other services of elevator and

escalators upon the plaintiff paying the charges as directed by the court.

However, the plaintiff received a letter dated 30 October, 2008 from the

defendants stating that there were huge outstanding maintenance charges

and it had become impossible for them to maintain the common

operations and to provide basic amenities. The defendants have filed a

reply to this application.

9. The present application has been filed for modification of

order dated 24 October, 2008. The defendants have stated that the above-

mentioned impugned order was obtained by the plaintiff by suppression

of material facts as the defendants were on Caveat though the said order

was passed on the first hearing itself, without the defendants/written

statement being filed.

10. It is the defendants' case that though it has been observed in

the impugned order that the area is not capable of being air-conditioned,

the entire area of 2500 sq. ft. is in fact equipped with an air-conditioner

and covered with plastic sheets. As per the defendants, it was agreed

between the parties that as the demised portion of 2000 sq. ft. out of the

2500 sq. ft. could not have pucca construction, the same would be

covered by plastic sheets at the cost of the defendants but at the risk of

the plaintiff.

11. Further, the plaintiff's submission that it has been paying the

electricity and water bills is refuted and it is stated that the defendants

have been paying the same. The plaintiff is entitled to no relief as it is a

habitual defaulter and still owes outstanding rent as well as maintenance

charges to the defendants. The lease deed dated 23 June, 2004 is

unstamped and unregistered and cannot be relied upon as it was never

finalized not ever acted upon by the parties. In fact, it is the registered

lease deed dated 24 July, 2006 that governs the relations between the

parties. It is the defendants' contention that the plaintiff obtained relief

from this court based on a lease deed which was null and void and hence

the impugned order ought to be modified.

12. The said terms were not finalized, hence the purported

agreement dated 23 June, 2004 never culminated in a final and registered

lease deed. It is also contended that it is an un-registered document and

is not admissible in the eyes of law as per the provision of Section 49 of

the Registration Act and Section 107 of the Transfer of Property Act,

therefore, the present suit itself is not maintainable. Learned senior

counsel for the defendants has also referred to the judgment of the Apex

Court reported in 2009(1) Scale 80 in the case of Avinash Kumar

Chauhan vs. Vijay Kishan Misra wherein the court has ruled that an

un-registered and unstamped document shall not be admitted for any

purposes whatsoever.

13. The defendants have claimed that the plaintiff is enjoying the

occupation of the entire 2500 sq. ft. and not paying for the same. Further,

photographs have been annexed showing that the demised premises are

covered. Only Rs. 48,000/- were paid by the plaintiff and that too after

this court's orders. The plaintiff has been irregular with making

payments of rent and has not complied with the obligations of a tenant.

The defendants have obtained quotes from two independent maintenance

agencies, both of which are Rs. 25/- per sq. ft. The defendants have

submitted that they are willing to hand over the common area

maintenance to any independent maintenance agency.

14. In view of the above-stated submissions, the defendants have

prayed that the order dated 24 October, 2008 be modified and the

plaintiff be directed to pay use and occupation charges @ Rs. 1,55,000/-

without prejudice and common area maintenance charges @ Rs. 25/- per

sq. ft. for the entire area of 2500 sq. ft. The defendants have also prayed

that an independent maintenance agency be appointed for providing

common area maintenance services and amenities.

15. In its reply, the plaintiff has denied the allegations of non-

payment at the outset. It is submitted that the rent and maintenance

charges up to March 2009 have been paid and those of April 2009 will

be paid on the due date. As per the plaintiff, the defendants want to

charge the plaintiff in respect of the excess area also and the former

refuses to do the same as the entire area of 2500 sq. ft. was to be covered

and air-conditioned and if not, rent was only to be paid for the covered

and air-conditioned area.

16. The hardships caused to the defendants have not been

perpetrated by the plaintiff but by the former's own misdeeds. Without

prejudice to its stance, the plaintiff has submitted that even if the air-

conditioning system is installed, the obligation of the defendants will not

be complete till the same is put to use. The plaintiff has denied that it is

in arrears of Rs. 15,55,000/- for the period of 1 January, 2008 up to 31

October, 2008.

17. During the course of hearing of the application, by mutual

consent of the parties a local commissioner Mr. A.P. Aggarwal was

appointed in order to verify the status of the 2000 sq. ft. sitting area in

the Pacific Mall (North), Pitam Pura, New Delhi and to check whether

the said area had been air-conditioned and if so, whether the same was in

functioning condition.

18. The local commissioner filed his report on 7 September,

2009. According to the report, the 2000 sq. ft. area contained 18 tables

with four chairs each and two tables with six chairs each. Benches and

flower pots also occupied the area. As per the report, the area was fully

covered with plastic sheets fixed on a square metal frame. Air-

conditioning ducts were installed with 12 blowers, however, the same

were not operational. The official of defendant no. 1 present at the site

stated that the air-conditioner would start working once it was switched

on, however, the area was not cooled even after a lot of time had elapsed

since the air-conditioner was switched on. Official of defendant no. 1

stated that there might be a blockade in the duct and deputed certain

persons to check the same. It has been mentioned that the AC duct was

coming into the 2000 sq. ft. area from an adjoining cinema hall which

was under the control of the plaintiff. After some time, the cooling

started as the blockade had been found and removed. At this point,

Director of the plaintiff stated that the cooling had started as it has been

diverted from the cinema hall to the demised premises. The report

concludes with the noting that the area is fully covered, is air-

conditioned, and if operated, the air-conditioner is in working condition.

19. The scope of the present suit, inter-alia, is limited to the

extent that defendants No.1 to 3 are not entitled to any rent for the

seating area of 2000 sq. ft. in view of the recital made in the lease deed

dated 23 May, 2004 that if the seating area of 2000 sq. ft. is not covered

and air-conditioned no rent will be payable for the same.

20. It is argued by the learned senior counsel for the plaintiff that

if the defendants fulfill their part of the obligation, the plaintiff is

prepared to pay rent @ Rs.1,55,000/- for the entire area, and that since

they have failed to perform their part of the contract, the defendants are

not entitled to receive the same.

21. The first contention of the plaintiff that the seating area is not

fully covered and the construction is against the municipal bye-laws has

no force as the report given by the Local commissioner is contrary to the

submissions of the plaintiff which shows that the disputed area is fully

covered. Further, as far as the construction part is concerned, when the

plaintiff was put in possession of the demised premises, the plaintiff was

aware about the fact that the area was covered with plastic sheets and in

fact the plaintiff has paid rent till December 2007 @ Rs.1,55,000/-.

Therefore, the submission of the plaintiff in this regard is without any

merit.

22. As regards the next submission of the plaintiff that the area in

question is not air-conditioned, the report of the Local commissioner is

that the said area is air-conditioned. In reply to the report submitted by

the Local commissioner, learned counsel for the plaintiff has argued that

in fact the seating area is not air-conditioned and it was only a temporary

arrangement that was made by the defendants when the Local

commissioner visited the site in order to show that the air conditioner

was in working condition. It is argued that out of three only one

transformer was in working condition and that was used for the purpose

of supplying air conditioning to the theatre. The second transformer was

under repair and the third had already been disposed of by the

defendants.

23. All other submissions made by the parties are not necessary

to be considered in the present application, as the same has been filed

only for the restricted purpose i.e. modification of order dated 24

October, 2008.

24. After considering the rival contentions of the parties, I am of

the view that the interim orders made by the court vide order dated 24

October, 2008 shall be modified to the following extent :

(a) The defendants shall furnish an undertaking by

way of an affidavit before this Court within a period of

10 days from today to the effect that the defendants

shall provide the facilities of air conditioning in the

open/sitting area and shall also strictly comply the order

dated 24 October, 2008.

(b) Upon filing of the undertaking and compliance,

the plaintiff is directed to pay the agreed rent of total

area @Rs.1,55,000/- p.m. w.e.f. 1st November, 2009

without prejudice to its rights and contentions.

(c) As regards the increase of maintenance charges

and outstanding amount as alleged by the defendants,

the said disputes shall be considered with interim

application under Order XXXIX Rule 1 and 2 of Code of

Civil Procedure, 1908 and other application being IA

No.13027/2008 under Order XXXIX Rule 2 A of the

Code.

d) Other contention raised by the defendants in

respect of validity of the impugned lease deed of the suit

property is not to be determined at the present stage of

the proceeding.

25. In view of the abovesaid directions, I.A. No.4175/2009 is

disposed of. The parties are directed to appear before the Joint

Registrar for admission/denial of the documents on 3 December, 2009.

After completion of admission/denial the matter shall be

listed before the Court for framing of issues on 12th January, 2010 as

well as for disposal of pending application IA No.14633/2008

MANMOHAN SINGH, J.

OCTOBER 20, 2009 nn