Mr.Jaspreet Singh Anand & Anr. vs Mr.Gurdev Singh Anand & Ors.
2011 Latest Caselaw 2046 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) NO. 966/2008

                                     Date of Decision : 08.04.2011

MR.JASPREET SINGH ANAND & ANR.         ...... Plaintiffs
                     Through: Ms.Gurmeet Bindra, Adv.

                                 Versus

MR.GURDEV SINGH ANAND & ORS.        ...... Defendants
                    Through: Mr. H.L.Tiku, Sr.Adv. with
                             Mr.J.Singh, Adv.
                             Mr.Rajiv Bahl, Adv. for
                             applicant        in     IA
                             No.14845/2010


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.

Whether Reporters of local papers may be allowed to see the judgment? NO

2. To be referred to the Reporter or not ? NO

3. Whether the judgment should be reported in the Digest ? NO

V.K. SHALI, J. (oral)

IA No.16142/2010

1. This order shall dispose of IA No.16142/2010 filed by the

defendants for letting out the ground floor of the property

bearing No.7/20, Kirti Nagar Industrial Area, New Delhi.

2. The learned counsel for the plaintiff was heard at length on

22.3.2011 with regard to the objections raised regarding

various clauses of the proposed lease deed to be executed

between the defendants and the prospective tenant. These

objections have been dealt with in the order dated 22.3.2011

in detail. These objections pertain to the total period of lease,

repairing on the ground floor and the mezzanine floor,

obtaining of licence, depositing the security amount with the

Registrar General, as well as a restraint on the part of the

lessor from creating any third party interest in respect of the

suit property.

3. All the clauses were considered by the Court and the

defendants were directed to file a rectified proposed lease

deed along with the site plan demarcating the portion which

is purported to be let out by them.

4. After the order was passed, the learned counsel for the parties

expressed their desire to make a fresh attempt to arrive at a

settlement in respect of their outstanding issues and

accordingly at the request of the learned counsel for the

parties, Mr.J.P.Sengh, learned senior counsel of this Court,

an experienced mediator, was requested to intervene in the

matter and try to bring about reconciliation between the

parties. The matter was adjourned to 07.4.2011. On

07.4.2011, the parties informed that the mediation

between them could not succeed.

5. The learned counsel for the parties have brought the revised

lease deed to be executed between the defendants and the

prospective tenant. However, as the site plan was not

attached with the proposed lease deed, the matter was

adjourned for today.

6. Today again, the learned counsel for the parties have been

heard. I have also perused the record.

7. The learned counsel for the plaintiffs had very vehemently

contested the letting out of the property itself and drew the

attention of the Court to various objections which have been

taken in the reply to the said application.

8. These preliminary objections were raised firstly on the ground

that the property is a lease hold property given on perpetual

lease by the L&DO and therefore, the property cannot be let

out without the permission of the L&DO and, if it is done, it

will unnecessarily put the interest of the petitioners as well as

that of the defendants in peril.

9. The second objection, which was taken was that the

defendants have not come to Court with clean hands

inasmuch as while letting out the ground floor of the suit

property along with the inner mezzanine, the front portion of

the mezzanine floor of the suit property measuring around

2000 sq. ft. which is under exclusive occupation of the

defendant no.2, is not being let out. Accordingly, it was urged

that this is conferring an unfair advantage on the defendant

no. 2, inasmuch as he himself is retaining a part of the

mezzanine on the first floor of the suit property, yet he is

depriving the plaintiff from retaining a part of the ground floor

of the suit property, wherefrom the plaintiffs intend to run

their business. It was contended by the learned counsel for

the plaintiffs that the plaintiffs have no objection to the letting

out of the suit property in case they are given 1/6th share on

the ground floor of the suit property which will enable them to

run their own business. It was further urged that the owner

of the prospective tenant, M/s. Samara India Pvt. Ltd.

(Hyundai Motors) is a good friend of Mr.G.S. Chandhok,

husband of defendant no.5 and therefore, the whole purpose

of defendants was to defeat the rights of the plaintiffs.

10. So far as the other objections to the various terms and

conditions of the proposed lease deed are concerned, it was

contended that despite the fact that certain clauses have been

rectified, still there are some clauses which are the cause of

concern for the plaintiffs inasmuch as the insertion of these

clauses in the proposed lease deed may be detrimental to the

interest of the plaintiffs.

11. It was contended that clause no. (1), pertains to the payment

of service tax and if read as framed it may cast an obligation

on the plaintiffs and the defendants to pay the service tax

while as this is essentially a liability of the tenant.

12. It was contended that clause nos.2 and 3, in the revised lease

deed did not mention the time of payment of advance rentals,

security deposit in terms of the proposed lease deed. Clause

5 was pertaining to renewal clause and it was alleged that the

prospective tenant was given unfettered right to renew the

lease deed. Clause 7, was stated to be permitting the

prospective tenant to install a generator set on the terrace

floor which will cause vibrations and consequently damage

the structure of the building. In addition to this, the learned

counsel for the plaintiffs had also contended that the purpose

for which the ground floor of the suit property is being let out

is for running a service centre and motor work shop, which is

bound to cause spill over of grease and Mobil oil, which will

spoil the floor of the suit premises and which will ultimately

entail the expenditure to be incurred by the plaintiffs at the

time of vacation.

13. Mr.Tiku, the learned senior counsel for the defendants has

very fairly sated that so far as the objections with regard to

various terms and conditions of the proposed lease deed are

concerned, they may be suitably modified by the Court so as

to protect the interest of the plaintiffs and the defendants

have no objection to the same. It was also contended by him

that in order to ensure that there is smooth passage so far as

the execution of the lease deed is concerned, instead of

directing all the parties or only the defendants to sign the

lease deed, it would be better in case an Advocate is

appointed as a Court Commissioner who may not only modify

the terms and conditions of the final proposed lease deed to

be executed between the defendants on the one hand and the

prospective tenant on the other but would also get the said

lease deed duly registered with the Sub-Registrar as it is for

more than 11 months. Further, it was urged that he would

ensure that all the requisite formalities are completed. It was

stated that since some of the parties are adopting a non-

cooperating attitude, it would be better in case one person for

and on behalf of all the parties and the Court is authorized to

deal with the prospective tenant.

14. So far as the preliminary objections with regard to the

restriction being imposed by the L&DO and other objections

are concerned, it was contended that notwithstanding the fact

that the L&DO is the lessor of the suit property, in all cases of

perpetual lease or sub-lease, the owner or the perpetual

lessee or the sub lessee is permitted to let out a part of the

suit property so as to earn rentals. It was contended in the

instant case that there is absolutely no violation of any terms

and conditions of the perpetual lease or the sub lease as the

case maybe by executing a lease agreement between the

prospective tenant and the defendants herein through Court

Commissioner. As regards the mezzanine on the first floor is

concerned, it was urged that it is an independent unit and

does not form part of the ground floor.

15. I have thoughtfully considered the submissions made by the

respective sides. I have also perused the record.

16. At the outset, I cannot refrain myself from saying that no

doubt this is a suit for partition in respect of various

properties out of which the property bearing No.7/20, Kirti

Nagar Industrial Area, New Delhi is one of the valuable

properties, but the attitude of the plaintiffs in restraining the

defendants from letting out the suit property is actuated by

only an obstructionist attitude. It is with this state of mind

that all objections, both preliminary as well as objections on

merits have been taken by the plaintiffs, so as to ensure that

the property is not permitted to be let out to any prospective

tenant and thus gainfully utilized to everybody's benefit.

17. It may be pertinent here to mention that it is not disputed

that the property belongs to all the parties to the suit though

the shares in respect of the said property are yet to be

apportioned and thereafter given effect to by metes and

bounds.

18. The suit property as on date is admittedly lying vacant and is

not being gainfully utilized by any of the parties, therefore, to

permit the defendants to keep the property vacant and not let

it out to any party, including the present prospective tenant is

not only causing financial loss to all the parties but will also

result in quick decay of the property on account of lack of

maintenance and non-occupation. Therefore, I feel that the

preliminary objections which have been raised by the

plaintiffs that the property cannot be let out in terms of the

proposed lease deed or that it is causing undue enrichment to

the defendants on account of the fact that he is in occupation

of the portion of the mezzanine for does not convince me. It

is the common knowledge that even the properties which have

been perpetually subleased or perpetually leased by the

lessor namely the President of India through L&DO or the

DDA, the properties have been let out to different tenants for

rentals subject to certain conditions. As and when if any

objection is raised by the lessor, the parties will be well within

their rights to rectify such deficiency or to contest the same.

However, this objection, which is being raised in anticipation,

is only being used as a pre-emptive strike to prevent the

letting out of the property by the plaintiff. I do not agree with

this objection.

19. So far as the allegation that the defendants have not come to

Court with clean hands inasmuch as they are occupying

mezzanine on the first floor ad measuring 2000 sq. ft. and yet

letting out the remaining portion of the mezzanine and the

ground floor and thereby making unjust enrichment at the

instance of the plaintiffs is totally incorrect.

20. It may be pertinent here to mention that the learned counsel

for the defendants has shown the lay out plan duly

sanctioned by the appropriate authority which clearly

demarcates the mezzanine floor under the occupation of the

defendants while as the remaining portion which is the

ground floor and the inner mezzanine on the first floor with

separate entrance is lying vacant and therefore, is altogether

a separate unit which is proposed to be let out. Accordingly, I

do not find any merit with regard to these preliminary

objections.

21. So far as the other objections of the learned counsel for the

plaintiffs with regard to various terms and conditions are

concerned, the Court had practically read each and every

clause with the assistance of the learned counsel for the

parties and came to the conclusion that certain minor

modifications in certain clauses should be enough to take

care of the objections which are being raised by the

plaintiffs.

22. These objections are being attended to hereinafter.

Clause no.1:- So far as the payment of service tax is

concerned, there is no dispute about the fact that the service

tax is payable by the prospective tenant. It was contended by

the learned counsel for the defendants that as on date, the

service tax is not payable by the prospective tenant on the

tenanted premises on account of Division Bench judgment of

this Court in case titled Home Solution Retail India Ltd.,

Lifestyle International P. Ltd., Shoppers's Stop Ltd., Fun

Multiplex P. Ltd.,Wadhawan Lifestyle Retail P. Ltd.,

Devyani International Ltd. , Mahtani Fashion Pvt. Ltd.

Barista Coffee Company Ltd., M/s GKB Optolab (Pvt.) Ltd.

Bardez,Goa Biba Apparels P.Ltd., Ashok Kumar Jain,

Vardhaman Properties Ltd. Wadhawan Lifestyle Retail

P.Ltd., Ashok Jain, Vatika Ltd., Vatika Hospitality Pvt.

Ltd., M/s Food Plaza Express Kitchen, SSIPL, Retail Ltd.,

Genesis Colors Pvt. Ltd. M/s BATA India Ltd., Vinnamr

Hospitalit P. Ltd., M/s BPTP Ltd. Vs. Union of India. It

has been further stated that the said judgment was not

challenged before the Supreme Court and there is no stay

and therefore, no service tax as on date is leviable or payable

by the tenant. In any case, it has been stated that if the said

liability comes to fall on the prospective tenant, the same

shall be paid by them.

23. In view of the submissions made by the learned counsel for

the defendants, the Court hopes and trust that the

defendants will sufficiently modify clause 1 of the lease deed

so as to ensure that the service tax is paid by the tenant in

the first instance and he will make a sufficient provision for

the same and if ultimately it is payable, the same shall be

deposited with the appropriate competent authority and in

case the Apex Court puts its seal on the judgment passed by

the Division Bench and states that the service tax is not

payable by the tenant, in that event, the said amount shall be

refunded or taken back by the tenants.

24. With regard to clause nos.2 and 3, it is clarified that the

initial advance payments and the security deposit shall be

made by the lessee at the time of registration and thereafter

the payment of monthly rent shall be made on or before 7th of

each succeeding calendar month.

25. Clause 5 makes it clear that after expiry of six years, the

proposed lease deed may be extended on such terms and

conditions as may be settled with the permission of the Court

and with such enhancement of rent as may be deemed

necessary.

26. Clause 7, deals with the installation of the generator. The

learned counsel for the plaintiffs had vehemently opposed the

installation of the generator on the terrace floor. It was

contended by the learned counsel for the plaintiffs that the

running of generator is bound to cause vibrations in the

building and thereby it will impair the strength of the

structure to the detriment of the plaintiffs. It was contended

by them that the generator could be put on the ground floor

so as to avoid any such possibility of damage to the structure.

27. As against this, the learned senior counsel for the defendant

has pointed out that the design of the ground floor of the suit

premises is such that it is fully detached building having two

gates, one of which is likely to be used for entry while as the

other is being used as an exit gate and if the generator is put

on the ground floor of the suit property, it is going to block

the circulation path of the vehicles and consequently, make

the functioning of the workshop or the service centre from the

suit premises practically impossible and therefore, it was

suggested that the generator set is being put on the terrace

with all necessary precautions including the shock absorbers

so as to prevent the building from shock on account of

vibrations.

28. I fully agree with the contention of the learned senior counsel

for defendants, I am of the view that in case the generator is

put on the ground floor at the back portion, it is going to

create obstruction in the circulation and consequently, the

vehicles cannot have free movement and thereby the entire

purpose of taking premises on rent by the prospective tenant

would get defeated. I therefore, feel that the generator has to

be necessarily put on the terrace floor of the suit property.

The only thing, of which the care is to be taken, by the

defendants is that necessary shock absorbers/shock

absorbing methods which make the functioning of the

generator as silent as possible must be adhered to according

to the BIS standards, so as to prevent any damage to the

structure.

29. I, therefore, do not find that there is any merit in the case

except that the objections which have been pointed out by

the learned counsel for the plaintiffs have been sufficiently

attended to and accordingly, the plaintiffs should have no

cause for concern.

30. For the above mentioned reasons, I allow the application of

the plaintiffs bearing IA No.16142/2010 permitting them to

let out the ground floor and the inner mezzanine floor of the

suit property to the prospective tenant w.e.f. 1.5.2006

initially for a period of three years and renewable by another

three years on such terms and conditions as may be fixed

herein subject to the supervision of the Local Commissioner

to be appointed by the Court.

31. So far as the appointment of the Local Commissioner is

concerned, I feel that somebody who is conversant with the

local conditions prevailing in Delhi should be appointed as

the Local Commissioner so as to not only go through the

proposed lease deed and suggest changes to the parties to

their satisfaction but also ensure that all the documents

which are to be signed by the parties must be signed.

32. The Local Commissioner shall also take steps to sign such

other documents as may be required by the prospective

tenant for the purpose of obtaining requisite licence from the

local authorities. After signing the proposed lease deed along

with the lay out plan demarcating the portion which has to be

let out, shall be filed in Court.

33. Mr.Naveen Chawla, Advocate who is incidentally present in

Court, is appointed as the Local Commissioner for the

purpose of not only signing the proposed lease deed but also

to complete all formalities as may be found by him to be

necessary. He can make suitable amendments in the lease

conditions to allay the fear of the plaintiffs if he feels so.

34. The fee of the Local Commissioner is fixed at `75,000/- apart

from other expenses.

35. With these observations, the application is allowed. Dasti

under the signatures of the Court Master.

CS (OS) NO. 966/2008

List on 12.8.2011.

V.K. SHALI, J.

APRIL 08, 2011 RN