Delhi High Court
M/S Mexit (India) Private Ltd vs M/S Life Business Projects ... on 5 February, 2010
Author: S.Ravindra Bhat
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05.02.2010
+ CS(OS) 101/2009
M/S MEXIT (INDIA) PRIVATE LTD ..... Plaintiff
Through : Mr. Dinesh Garg, Advocate.
versus
M/S LIFE BUSINESS PROJECTS PRIVATE LTD ..... Defendant
Through : Nemo.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1.
Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
1. The plaintiff seeks possession of suit premises, being industrial built-up property, F-1,
Block B-1 Extension, Mohan Cooperative Industrial Area, Mathura Road, New Delhi, which
includes a basement of 8000 sq. feet; ground floor of identical area and first floor of 4000 sq. feet
(hereafter collectively called "suit property").
2. The plaintiff also seeks a decree for Rs.1,20,00,000/- , on account of arrears of rent for
the period 01.02.2008 to 30.11.2008 @ Rs.8 lakhs per month as well as mesne profits from
December till the date of filing the suit @ Rs. 20 lakhs per month, amounting to Rs.30,00,000/-
and Rs.10,00,000/-, on account of alleged interest. A further decree of pendente lite and future
mesne profits @ Rs.30,00,000/- per month and interest is sought. The plaintiff lastly seeks
mandatory injunction against the defendant to direct it to issue TDS Certificate for the amounts
deducted towards the tax paid till 31.01.2008 and also direct it to pay arrears of electricity
CS(OS) 101/2009 Page 1
charges.
3. The suit allegations are that the plaintiff, owner of the suit premises which are set-out in a
site plan, Ex.PW-1/3, let them out to the defendant on a monthly rent of Rs.8,00,000/- with effect
from 10.08.2007. The terms of the lease were reduced into writing on that day; it was agreed that
the lease period was to be 34 months. The plaintiff states that the lease agreement was not
executed on Stamp paper and is also unregistered. Nevertheless, the plaintiff has produced a
copy of the same, which is exhibited as PW-1/4. The plaintiff contends that on account of the
arrangement being the result of an unregistered and unstamped agreement, it has to be treated as
a monthly tenancy. The plaintiff further states that the defendant occupied the premises and paid
rent for the period August 2007 to January 2008 after withholding the Tax Deduction at Source
(TDS). Yet a certificate to such effect has not been furnished.
4. The plaintiff submits that the defendant had issued two cheques, drawn on State Bank,
dated 07.02.2008 and 07.03.2008, towards rent after TDS for the months of February and March
2008. The cheques were, however, dishonored or returned unpaid with the remarks "Account
Closed". The said two cheques with the original Bank Return Memos have been produced as
Ex.PW-1/5 to PW-1/8. The plaintiff contends having issued a legal notice on 10.07.2008, for the
cheques returned, calling upon the defendant to pay the amounts in terms of Sections 138 to 141
of the Negotiable Instruments Act, with interest. Copies of the notice and the original postal
receipts have been marked as Ex. PW-1/9 and Ex.PW-1/10. The plaintiff submits that on account
of default in payment of rent and also because of the dishonor of cheques, the tenancy was
terminated by legal notice dated 14.05.2008, with effect from 10.03.2008, giving clear six
months' notice, by treating the arrangement as oral or annual tenancy.
5. The original postal receipts as well as copy of the legal notice have been marked as
Ex.PW-1/11 to Ex.PW-1/13. It is submitted that besides terminating the arrangement with effect
from 30.11.2008, the defendant was called upon to pay the arrears of rent and further issue a
TDS Certificate. The plaintiff submits that the defendant was in arrears of electricity charge, and
relies upon three electricity bills which are marked as Ex.PW-1/14 collectively. The plaintiff
claims that the continued occupation of the suit premises, despite receipt of the notice - which
CS(OS) 101/2009 Page 2
can be presumed on account of the lapse of more than 30 days, entitles it to claim Rs.20,00,000/-
per month as mesne profits. The plaintiff justifies this by stating that the market rent for the
premises was Rs.100/- per square feet per month and that thereafter this became Rs.150/- per
square feet per month. It is claimed that the defendant's possession is unauthorized, with effect
from 01.12.2008. On these allegations, the plaintiff seeks reliefs in the suit.
6. The suit was registered and the summons issued on 19.01.2009. It was mentioned on
13.04.2009 that possession of the ground floor of the premises, measuring 8000 sq. feet had been
handed back by the defendant, in the meanwhile. The Court by its order dated 03.07.2009
noticed that despite several attempts, the defendant could not be served through the normal
process. In the circumstances, substituted service through publication in the newspaper
Statesman was directed, returnable on 22.10.2009. Since on that date, the plaintiff proved
publication, despite which the defendant did not appear in the proceedings, the Court set them
down ex-parte. The plaintiff filed the affidavit evidence of Sh. Kailash Chandra Goyal, who
identified it; the affidavit was marked as Ex.PW-1/A on 20.01.2010. The matter has been
thereafter listed for orders.
7. The Court has considered the materials on record. It is evident that the lease agreement,
Ex.PW-1/4, mentioned the arrangement as continuing for 34 months, commencing from
10.08.2007. Yet the same is executed on a Rs.50 Stamp Paper and is not a registered instrument.
Therefore, the document is inadmissible and the tenancy consequently has to be treated as one
existing on a month-to-month basis, by reason of Section 107 of the Transfer of Property Act,
1882. Ex.PW-1/5 and Ex.PW-1/7 are the two cheques issued by the defendant, returned by the
bank through memos, Ex.PW-16 and Ex.PW-1/8 on the ground that the account had been closed.
The legal notice dated 14.05.2008 (Ex.PW-1/11) clearly terminates the arrangement with effect
from 30.11.2008, granting more than six months to the defendant, to vacate the premises. The
plaintiff dispatched the same; the postal receipts for the Regd. Post A.D. are marked as Ex.PW-
1/12. The plaintiff has also exhibited copies of three bills issued by the BSES Rajdhani Power
Limited for Rs.60,820/-, Rs.2,17,100/- and Rs.53,160, which was payable by the defendant.
CS(OS) 101/2009 Page 3
8. The record discloses that the defendant had handed-over the ground floor of the premises
to the plaintiff. In the circumstances, the plaintiff has, in the opinion of the Court, proved
entitlement to decree for possession of the premises. So far as mesne profits are concerned, apart
from blandly averring that the plaintiff is entitled to such damages quantified at Rs.20 lakhs per
month till date of filing of suit and for Rs.30 lakhs (calculated at Rs.150/- per sq. feet) thereafter,
there is no material or evidence in that regard. In these circumstances, it is held that the plaintiff
is entitled to a decree at the same time as the parties had agreed and is also entitled to damages
on account of default in rent at the agreed rate, i.e. Rs.8,00,000/- per month. Since the defendant
vacated part of the premises sometime in April 2009, the plaintiff would be entitled to only
proportional amounts for the period April 2009 till date. The plaintiff has not shown how it is
entitled to any interest on the amounts claimed for which entitlement has been determined by this
Court.
9. In view of the above discussion, let a decree for possession of the suit premises -
industrial built-up property, F-1, Block B-1 Extension, Mohan Cooperative Industrial Area,
Mathura Road, New Delhi, which includes a basement of 8000 sq. feet; ground floor of identical
area and first floor of 4000 sq. feet be drawn. The court directs that a decree for the sum of
Rs.1,52,00,000/- (Rupees One Crore Fifty Two Lakhs only) be drawn; the claim for mandatory
injunction to direct the defendant to clear the outstanding bills of BSES Rajdhani (i.e. Rs.
Rs.60,820/-, Rs.2,17,100/- and Rs.53,160) too has to succeed, and a decree to such effect, shall
also be drawn.
10. CS (OS) 101/2009 is decreed in the above terms with costs; the counsel's fee is
quantified at Rs.50,000/-.
S. RAVINDRA BHAT
(JUDGE)
FEBRUARY 05, 2010
'ajk'
CS(OS) 101/2009 Page 4
