Cogent Ventures (India) Ltd. vs Raj Karan
2010 Latest Caselaw 1 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.564/2010 & CM No.16569/2010

Cogent Ventures (India) Ltd.             ....Appellant through
                                         Mr. Harish Malhotra,
                                         Sr. Adv. with
                                         Mr. Sidharth Silwal,
                                         Adv.

                  versus

Raj Karan                                ....Respondent through
                                         Mr. Ashok Chhabra,
                                         Adv.

%                       Date of Hearing : September 15, 2010

                        Date of Decision : October 01 , 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MS. JUSTICE MUKTA GUPTA
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                  No
      2. To be referred to the Reporter or not?        Yes
      3. Whether the Judgment should be reported
         in the Digest?                                Yes

VIKRAMAJIT SEN, J.

CM No.16571/2010

1. Mr. Ashok Chhabra, learned counsel for the

Respondent/Plaintiff, states that he has instructions not to

oppose the application for condonation of delay and argue on

the merits of the case instead.

2. Application is allowed.

FAO(OS) No.564/2010 & CM No.16569/2010

3. This Appeal assails the Order dated 23.7.2010 passed by

the learned Single Judge, striking off the defence of the

Appellant in the Suit.

4. The facts, in brief, are that a Notice dated 17.8.2006 had

been issued on behalf of the Respondent/Plaintiff, calling upon

the Appellant to handover vacant and peaceful possession of the

premises within fifteen days thereof. The Notice further

demanded damages in the event of the overstay of the

Appellant at the market rate which, according to the

Respondent, was ` 1,50,000/- per month. Since the Appellant

failed to handover vacant possession of the demised premises,

a Suit for recovery of possession, recovery of ` 14,00,000/-

towards damages for use and occupation and for permanent and

mandatory injunction came to be filed.

5. It appears that in the proceedings of this Suit, the

Appellant had violated the Order of the learned Single Judge

directing it to pay interim mesne profits. An agreement was

recorded in the hearing held on 21.4.2007 to the effect that

the Defendant would pay to the Plaintiff ` 51,000/- per month

for the period 1.8.2006 onwards; an advance of ` 2,00,000/-

out of the arrears would be paid by 30.4.2007 and balance

arrears for the period upto 30.4.2007 would be paid by

31.5.2007.

6. We think it expedient to reproduce the Order passed on

10.3.2010 by the learned Single Judge:-

IA 2183/2010 in CS(OS) No.1987/2006

1. This is an application under Section 151 CPC.

2. Issue notice. Mr.Silwal, learned counsel accepts notice on behalf of the defendant.

3. The learned counsel appearing for the defendant has very fairly stated that although there have been two orders which have been passed by the two Hon'ble Judges of this Court earlier directing the clearance of the arrears of rent/damages/mesne profits @ Rs.51,000 per month within a month and the payment of rent/damages/mesne profits for each calendar month on or before 7th of each succeeding English Calendar month, yet the same has not been complied with. It is stated that on account of certain difficulties, the defendant were not able to pay the amount on time.

4. It has been stated that 3 cheques of Rs.1 lac each have been handed over to the learned counsel for the plaintiff in Court today and so far as the balance amount of the arrears of rent/damages/mesne profits is concerned, that shall be paid to the plaintiff positively within ten days from today.

5. The learned Senior counsel has also stated that the matter may be taken up after four weeks so that the entire amount of arrears is liquidated first.

6. I have considered the submissions made by the learned Senior counsel for the defendants and perused the record.

7. Despite the two orders having been passed by this Court specially directing the defendant to clear the arrears of the rent/damages/mesne profits for all subsequent calendar months to be paid by a specified date, the defendant has not complied with the orders of the Court. On the contrary, the persistent default of the defendant in complying with the order gives an impression that the defendant is flouting the orders with impunity. The application of the plaintiff for striking out the defence of the defendant for the present is dismissed however, it is made clear that in case the rent /damages /mesne profits apart from the arrears is not paid to the plaintiff in terms of the order passed by S.N.Dhingra, J, on 20.11.2009 for two consecutive months, the defence of the defendant shall be peremptory treated as having been struck of.

8. List the matter as well as all pending applications on 03.5.2010.

7. It bears highlighting that the learned Single Judge, while

dismissing the application for striking off the defence of the

Appellant, had ordered that in case of failure to pay

rent/damages/mesne profits for two consecutive months, the

defence would peremptorily be treated as having been struck

off. Despite all the opportunities and latitude bestowed by the

learned Single Judge on the Appellant, it failed to comply with

the Order of the Court, despite indulgence granted from time to

time. This led to the passing of the impugned Order.

8. Before the learned Single Judge, learned counsel for the

Plaintiff/Respondent had articulated the grievance that the

Appellant had defaulted in payment for three continuous

months, despite the preemptory Order. It was in those

circumstances that the learned Single Judge has returned the

finding that the Defendant is a persistent defaulter and that it

was deliberately indulging in default only with a view to harass

the Plaintiff. The dishonor of cheques for the month of May,

June and July have been noted. The learned Single Judge has

concluded that the Appellant was adopting ploys to over-reach

the Court. It was in these premises that the defence was

ordered to be struck off.

9. It will be relevant to mention that the Bombay High Court

had inserted, by way of an amendment, the following provision

as Order XVA of the Code of Civil Procedure, 1908 :-

(A) "In any suit by a owner/lessor for eviction of an unauthorized occupant/lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order (within such time as the court may fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The defendant shall

continue to deposit such amount till the decision of the suit unless otherwise directed.

In the event of any default in making the deposit as aforesaid, the Court may subject to the provisions of sub-rule(2) strike off the defence.

(2) Before passing an order for stiking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence.

(3) The amount deposited under this rule shall be paid to the plaintiff owner/lessor or his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination.

This provision has been adopted, so far as Government of

National Capital Territory of Delhi is concerned, on 18.2.2010.

10. Having considered the conspectus of facts of the present

case, we are fully satisfied that the learned Single Judge has

correctly and justifiably struck off the defence of the Appellant.

The discretion exercised by the learned Single Judge has been

done on sound legal principles. In Wander Ltd. -vs- Antox India

(P) Ltd., 1990 Supp SCC 727 and Ramdev Food Products (P)

Ltd. -vs- Arvindbhai Rambhai Patel, (2006) 8 SCC 726, the

Hon'ble Supreme Court has advised the Appellate Courts not to

interfere with the exercise of discretion which had been validly

carried out.

11. In the case in hand, there have been several repeated

contumacious defaults which have led to the filing of the

Contempt Petition. The learned Single Judge had, in effect,

deferred orders sought for by the Plaintiff by way of an

application praying for striking off the defence, by allowing yet

another opportunity to the Appellant to pay arrears as well as

current dues. The said Order was actually a self-contained and

self-executing Order for the reason that it had been clarified by

the learned Single Judge that in the event of any default, the

defence would be treated as having been peremptorily struck

off. The impugned Order calls for no interference.

12. Appeal is devoid of all merits and is dismissed. Pending

application is also dismissed.

( VIKRAMAJIT SEN ) JUDGE

( MUKTA GUPTA ) JUDGE October 01, 2010 tp