Nisha Gupta & Others vs Gkb Optolab Pvt Ltd
2012 Latest Caselaw 6426 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: November 01, 2012

+      CS(OS) 1597/2011

       NISHA GUPTA & OTHERS                        ..... Plaintiffs
                    Through            Mr. B.B. Gupta, Advocate

                   versus

       GKB OPTOLAB PVT LTD                       ..... Defendant
                    Through            Mr. Gautam Gupta, Advocate


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

                            JUDGMENT

V.K.JAIN, J. (ORAL)

1. This is a suit for ejectment and recovery of money. The plaintiffs are the

owners of a shop admeasuring 550 square feet on the ground floor of property no.

G-27, NDMC Part-I, New Delhi. Initially, the property was owned by plaintiff

nos. 1, 3 and two HUFs namely S.N. Gupta and Sons (HUF) and Manoj Gupta and

Sons (HUF). It was let out by plaintiff nos. 1, 3 and the two aforesaid HUFs to the

defendant vide lease deed dated 28th April, 2005. During subsistence of the lease,

the two HUFs i.e. S.N. Gupta and Sons (HUF) and Manoj Gupta and Sons (HUF)

sold their respective shares in the property to plaintiff nos. 2 and 3 vide sale deed

dated 30th May, 2007.

The premises in question was initially let out for a period of three years

commencing 1st May, 2005. Since the lease was extendable for two terms of three

years each with an escalation of 15% of the last paid rent after expiry of every three

years, the tenancy was extended for three years with effect from 1 st May, 2008.

However, the fresh sale deed was not executed by the parties on expiry of three

years commencing 1st May, 2008. The case of the plaintiff is that since the lease

deed was registered for a period of five years commencing 1 st May, 2005 and

expired by efflux of time on 30th April, 2010. This is also the case of the plaintiff

that besides rent, the defendant was also liable to pay electricity and water charges

as well as service tax.

2. Vide legal notice dated 11th April, 2011, the plaintiffs required the defendant

to hand over physical possession of the tenanted premises on or before 30 th April,

2011. Since the premises was not vacated on 30th April, 2011, the plaintiffs filed

the suit seeking possession of the tenanted premises. The plaintiffs have claimed

Rs. 10,86,750/- towards rent for the period from 1st February, 2011 to 30th April,

2011; and Rs. 6 lakhs towards damages for use and occupation at the rate of Rs. 1

lakh per month with effect from 1st May, 2011 till filing of the suit. A sum of Rs.

40,760/- has also been claimed towards interest on arrears of rent. The plaintiffs

have also sought a mandatory injunction directing the defendant to pay all dues

including service tax and interest on them.

3. The possession of the suit premises was delivered by the defendant to the

plaintiffs during the pendency of the suit. When this matter came up for hearing on

30th March, 2012, it was agreed between the parties that a sum of Rs. 41,26,500/-

shall be paid by the defendant to the plaintiffs towards arrears of rent and damages

for use and occupation. A sum of Rs. 10,26,500/- was agreed to be paid on or

before 10th April, 2012 and the balance amount was to be paid in six monthly

installments of Rs. 5,16,660/- with effect from 10th May, 2012. It was also agreed

that the defendant will clear all electricity charges till that date.

4. The learned counsel for the plaintiffs states that payments in terms of

agreement between the parties are being made by the defendant to the plaintiffs.

Therefore, as far as relief of possession is concerned, the suit has become

infructuous and as far as recovery of arrears of rent and damages for use and

occupation charges are concerned, the same are being paid in installments in terms

of settlement between the parties.

The only issue which remains is payment of service tax on the rent.

5. The learned counsel for the plaintiffs on instructions states that the plaintiff

would claim amount of service tax after they have deposited the same with service

tax department.

6. In these circumstances, a decree for recovery of Rs. 41,26,500/- is hereby

passed in favour of the plaintiffs and against the defendant.

The decretal amount shall be paid in terms of the settlement recorded on 30 th

March, 2012 after adjusting the amount which has already been paid.

The plaintiffs are also entitled to proportionate costs which would be

calculated on the valuation of Rs. 43,47,000/- in respect of the relief of possession

and on the amount of Rs. 41,26,500/- which the defendant has agreed to pay

towards arrears of rent and damages for use and occupation.

The deficient court fee to be worked out in terms of this order would be filed

by the plaintiff within four weeks from today.

7. The learned counsel for the plaintiffs has pointed out that the defendant has

been deducting income tax at source while making payment to the plaintiffs

without making the TDS certificate available to them. The learned counsel for the

defendant undertakes that henceforth TDS certificate would be provided along with

payments and the TDS certificate for the past payment would be issued within four

weeks from today.

8. Since the matter is being disposed of pursuant to settlement between the parties and issues are yet to be framed, the plaintiffs are entitled to refund of half of court fee paid on the plaint in terms of Section 16A of the Court Fee Act. The registry is directed to issue requisite certificate to the plaintiffs in this regard.

The suit stands disposed of in the above terms. Decree sheet be drawn accordingly.

V.K. JAIN, J NOVEMBER 01, 2012/sd