R&R International vs Indu Sharma
2011 Latest Caselaw 4661 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.483/2011

%                                                   21st September, 2011

R&R INTERNATIONAL                                             ...... Appellant
                          Through:    Mr. Sunil Kumar Bharti, Advocate

                          VERSUS

INDU SHARMA                                                    ...... Respondent
                          Through:    None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.       The challenge by means of this Regular First Appeal under Section 96

of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and

decree dated 22.11.2010 whereby the suit of the respondent/landlord for

recovery of arrears of rent and for mesne profits has been decreed.

2.       The facts of the case are that under a registered lease deed dated

8.11.2006, the appellant/defendant took on lease the premises bearing No.

103, First Floor, Dwarka Deep Building, Plot No.8, MLU, Sector-6, Dwarka,

New Delhi-75 for a period of 9 years.             The appellant/defendant was a

franchisee of Fast Food Chain M/s Pizza Corner. The premises had an area of

RFA No.483/2011                                                  Page 1 of 4
 1124 sq.ft. The admitted rate of rent was Rs.62,000/- per month. The period

in question in the present case was from 1.4.2009 to 30.6.2009 for the

admitted rate of rent of Rs.62,000/- and thereafter at Rs.77,500/- per month

of mesne profits till 25.11.2009 when the premises were vacated.             The

tenancy was terminated vide notice dated 4.5.2009. The respondent/plaintiff

also additionally claimed a sum of Rs.15,840/- towards arrears of electricity

charges.

3.    The appellant/defendant contested the suit and claimed that the

tenant was not the appellant with whom the lease deed was entered into,

and, the tenancy was actually of M/s Global Franchise Architects India Private

Ltd. and therefore, the suit was bad for non-joinder of said entity.    It was

claimed that the rent of the suit premises was liable to be paid by the said

M/s Global Franchise Architects India Private Ltd., which is presently known

as M/s Pizza Corner Pvt. Ltd.

4.    The trial court has decreed the suit with respect to rent at the admitted

rate of Rs.62,000/- from 1.4.2009 till 30.6.2009, however, since the

respondent/plaintiff already paid a sum of Rs.1,86,000/- as security,

therefore, adjusting the security nothing was held to be payable for this

period. As per the registered lease deed, Ex.PW1/2, since increase was to be

made in the rate of rent w.e.f. 1.7.2009 to Rs.77,500/- per month therefore,

the trial court for the period from 1.7.2009 to 25.11.2009 passed a decree

for mesne profits at Rs.77,500/- per month.      The respondent/plaintiff had

summoned the witness from the electricity authority BSES to show in fact the
RFA No.483/2011                                                Page 2 of 4
 electricity dues were payable at Rs.31,438/- as per Ex.PW2/1, but since in

the plaint the claim was restricted to Rs.15,840/-, the decree was also

passed with respect to this lesser amount.

5.    Learned counsel for the appellant/defendant sought to argue that there

was a simultaneous oral agreement by which, instead of the appellant M/s

Global Franchise Architects India Private Ltd. was the tenant and therefore,

it is the only entity which was liable to pay the rent. This argument of the

counsel for the appellant is hit by the provision of Sections 91 and 92 of the

Indian Evidence Act, 1872 and which provide that once there is a written

document containing the terms, no oral agreement can be set up in conflict

with the written terms of the document. I, therefore, hold that it was the

appellant/defendant who was the tenant in the premises and not M/s Global

Franchise Architects India Private Ltd. The trial court has therefore, rightly

held the appellant liable to pay the rent and the mesne profits.

          The trial court, I may note, has referred to the admission of the

witness of the appellant/defendant where he admitted that the appellant was

liable to pay charges of Rs.77,500/- per month w.e.f. 1.7.2009. This witness

of the defendant also admitted that there was no clause in the lease

agreement Ex.PW1/2 that the terms of the franchisee agreement between

the appellant and M/s Global Franchise Architects India Private Ltd./M/s Pizza

Corner India Pvt. Ltd. will be part and parcel of the lease agreement. This

witness also admitted that the rent was only paid up to March, 2009 and the

possession of the suit premises was with the appellant/defendant till
RFA No.483/2011                                                Page 3 of 4
 25.11.2009. These facts have been referred to by the trial court in para 20

of the impugned judgment.

6.    In view of the above, I do not find any merit in the appeal.           The

appellant being a tenant was bound to pay the admitted rental charges of

Rs.62,000/- till 30.6.2009 and thereafter mesne profits at 77,500/- from

1.7.2009 till 25.11.2009 along with the electricity charges.

7.    The appeal is without merit and is accordingly dismissed, leaving the

parties to bear their own costs.




SEPTEMBER 21, 2011                               VALMIKI J. MEHTA, J.

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