Delhi High Court

Shri Arun Khullar vs M/S Ess Aay Fashions(India) Pvt. ... on 9 May, 2012

Author: Kailash Gambhir

          IN THE HIGH COURT OF DELHI AT NEW DELHI



                             Judgment delivered on: 09.05.2012

+             CS(OS) No. 2398/2010


Shri Arun Khullar                                     ......Plaintiff
                        Through: Mr. Vishwdenra Verma, Adv.


                             Vs.

M/s Ess Aay Fashions (India) Pvt. Ltd.            ......Respondent
                Through: Nemo.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR


KAILASH GAMBHIR, J.

1. The plaintiff has filed the present suit for possession, recovery

of damages, mesne profit and permanent injunction against the

defendant.

2. Brief facts of the case as set out by the plaintiff in the plaint

inter-alia are that the plaintiff is the absolute owner of shop bearing

No. 27/1, Malhotra Building, Connaught Place, Delhi - 110001 and

that he had entered into a lease agreement with the defendant dated

6.7.2009 for letting out the said property. It is the case of the plaintiff

that the said premises were let out by the plaintiff for a period of 9

years with a lock in period of 3 years from the date of execution of the

agreement. It is also the case of the plaintiff that the said premises

were let out by the plaintiff in favour of the defendant on a monthly

rent of Rs. 3 lakhs and after deducting the TDS the defendant was

obligated to pay a sum of Rs. 2,70,000/- per month and that the

defendant was required to pay service tax @ 10.3% on the rent

amount from 1.4.2010. It is also the case of the plaintiff that the

defendant had failed to make the payment of the rent amount for the

period of August, 2010 (for 15 days), September, 2010, October, 2010

and November, 2010. It is also the case of the plaintiff that the

defendant had issued cheques to the plaintiff towards the amount of

rent, but the same were dishonored. It is also the case of the plaintiff

that in terms of the lease agreement it was agreed between the

parties that if the defendant failed to make the payment of the rent for

a period of two months then the plaintiff shall be free to lock the

premises and in such event it shall be deemed that the lessee had

vacated the premises. It is also the case of the plaintiff that a legal

notice dated 14.9.2010 was served by the plaintiff upon the defendant

requesting them to vacate the suit property and to make the payment

of the arrears of rent amount but the defendant neither made the

payment of the rent amount nor vacated the suit property. It is also

the case of the plaintiff that he has filed criminal complaints under

Section 138 of the Negotiable Instruments Act against the defendant

based on the dishonoured cheques and on the date of the filing of the

present suit, the criminal complaints were pending. It is also the case

of the plaintiff that he had separately filed suit under Order XXXVII

CPC for the recovery of arrears of rent based on the dishonoured

cheques issued by the defendants. It is also the case of the plaintiff

that the defendant made payment of monthly rent up till August, 2010

and thereafter failed to make any payment towards the rent.

3. Based on these averments, the plaintiff has claimed from the

defendant Rs. 9,000/- per day according to the terms of the lease

agreement. The plaintiff has also claimed a decree for possession in

terms of the suit premises shown red in the site plan attached to the

plaint. The plaintiff has also claimed a decree for permanent

injunction against the defendant to restrain them, their family

members, agents, employees, servants, legal heirs or any other

persons acting for and on behalf of the defendant from selling,

transferring, alienating, mortgaging or creating any kind of third

party interest in the suit property.

4. The defendant had caused appearance in the matter and the

written statement was also filed by the defendant. Subsequently, the

defendant stopped appearing in the matter and vide orders dated 6 th

February, 2012 the defendant was proceeded ex parte. Ex parte

evidence was filed by the plaintiff through his own affidavit. Ex parte

evidence of the plaintiff was closed vide orders dated 2nd March, 2012

and final arguments in the matter were heard by this Court on 9th

May, 2012.

5. In the ex parte evidence adduced by the plaintiff, he has proved

on record the site plan showing the leased property in question in red

colour as Exhibit PW 1/A. The plaintiff has also proved on record

photocopy of the certified copy of the lease agreement dated 6.7.2009

as Exhibit PW1/2. The plaintiff has further proved on record copy of

the dishonoured cheque dated 21.8.2010 for an amount of Rs.

1,35,000/- as Exhibit PW 1/3. The plaintiff has further proved on

record certified copy of the bank advice dated 24.8.2010 as Exhibit

PW 1/4, copy of the legal notice dated 14.9.2010 as Exhibit PW 1/5,

copy of the cheque dated 28.8.2010 for a sum of Rs. 1,35,000/- as

Exhibit PW 1/6, copy of the bank advice dated 3.9.2010 as Exhibit PW

1/7. The plaintiff has also proved on record office copy of legal notice

dated 14.9.2010 as Exhibit PW 1/8. The plaintiff has also proved on

record copy of another legal notice dated 14.9.2010 on record as

Exhibit PW 1/9 and postal receipt as Exhibit PW 1/10. The plaintiff has

further proved on record judgment and decree dated 13.4.2011 in

respect of the recovery suit filed by the plaintiff based on the

dishonoured cheqeus as Exhibit PW 1/11. The plaintiff has deposed in

his affidavit Ex.PW1/X that the defendant had made payment of the

lease rent only till August, 2010 and thereafter stopped making

payment of further monthly rent to the plaintiff. The plaintiff further

claimed damages @ Rs. 9,000/- per day in terms of the lease

agreement. The said testimony of the plaintiff remained unchallenged

and unrebutted. In the written statement filed by the defendant, the

defendant claimed protection under Section 112 and 113 of the

Transfer of Property Act. The defendant further claimed that the

plaintiff had agreed to waive three months rent against the force-

majeure clause (vi) in the lease agreement. The defendant further

claimed that during the period from August, 2010 to November, 2010

the plaintiff had received an amount of Rs. 4,90,000/- in cash from the

defendant against vouchers. However, in the absence of any evidence

led by the defendant and also in view of the unrebutted testimony of

the plaintiff no weightage can be attached to the said defence raised

by the defendant in the written statement. This Court also cannot lose

sight of the fact that similar defence was raised by the defendant in

the recovery suit filed by the plaintiff in Civil Suit No. 114/2010 and

the same was rejected by the Civil Court vide judgment and decree

dated 13th April, 2011. No material has been placed on record by the

defendant that the judgment and decree dated 13 th April, 2011 was

challenged by the defendant and in the absence of any such material

it can be believed that the said judgment and decree dated 13th April,

2011 has attained finality. The ownership of the plaintiff in respect of

the tenanted premises cannot be disputed as through the registered

lease agreement dated 6.7.2009 the plaintiff alone had created

tenancy in favour of the defendant. In terms of clause III (1) of the

lease deed the said lease of the defendant could be terminated by the

plaintiff by giving 2 months written notice in the event of the

defendant/lessee in arrears of rent for a period of two months or

failure on the part of the lessee to observe any of the covenants as

contained in the said lease deed. In terms of sub clause 9 of clause III

of the lease agreement on such failure of the lessee to pay the rent for

two consecutive months or dishonouring of any of its cheques, the

said lease agreement would stand terminated and in such eventuality

the lessor was set free to lock the premises and in such case it would

be deemed that the lessee had vacated the premises. No further

notice in this regard was necessary to be given by the lessor. In terms

of sub-clause 4 of clause III of the lease deed, the lessee was liable to

pay compensation of an additional sum of Rs. 9,000/- per day as user

charges in addition to the rent payable for over stay either after the

expiry of the agreement or on premature determination of the said

agreement. The said relevant clauses of the lease agreement are

reproduced as under:-

1. If any rent shall be in arrears for two months, or if the LESSEE fails to observe any covenant or conditions then in such case it shall be lawful for the LESSORS to determine the lease, without prejudice to any claim or right, affection or remedy which either of the Parties hereto may have against the other in respect of any breach, non-performance, non-observance, of any of the convenants herein contained. "either party can determine this agreement by giving a two months written notice to the other party or compensate the other party with the rent in lieu of the said two months notice period."

4. The LESSEE on expiry of this agreement or on premature determination of this agreement is liable to immediately handover vacant possession of the premises to the LESSORS or his authorized representative. In case the

LESSEE fails to do so the LESSEE shall be liable to pay compensation an additional sum of Rs.9,000/- per day as usage charges in addition to the rent payable for such period of overstay.

9. If the LESSEE fails to pay the rent for two consecutive months or dishonoring of, any cheque, it shall be understood that this lease agreement has been terminated. The LESSORS shall be free to lock the premises and it shall be deemed that the LESSEE has vacated the premises and no notice whatsoever shall be required to be given in this regard."

6. After having given my due consideration to the averments of the

plaint and the ex parte evidence adduced by the plaintiff, which

remained unchallenged and unrebutted along with the documents

proved on record and the said terms of the lease deed, this Court is of

the considered view that the plaintiff is entitled to the reliefs as

claimed by him in the present suit. The suit filed by the plaintiff is

accordingly decreed for the recovery of possession of the suit

property more, specifically shown by the plaintiff in the site plan

proved on record as Exhibit PW 1/A. The plaintiff is also entitled to

recover damages @ Rs. 9,000/- per day in terms of sub clause 4 of

clause III of the lease agreement from the date of the filing of the suit

till the date of handing over of the possession of suit property in