Delhi High Court
Vigneshwara Development Pvt. ... vs Narender Gupta on 12 March, 2013
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12.03.2013
+ RFA(OS) 85/2012 & CM No.16543/2012
VIGNESHWARA DEVELOPMENT PVT LTD & ANR
..... Appellants
Through : Mr. Naveen Sharma, Adv.
versus
NARENDER GUPTA ..... Respondent
Through : Mr. S. Khan, Adv.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The appellant, the unsuccessful defendant before the learned
Single Judge, questions the impugned decree dated 13.8.2012, in
Civil Suit No.114 of 2010. The suit had claimed decree for
possession, damages, mesne profits for use and occupation of the
premises being G-20, Aggarwal Cyber Plaza, Netaji Subhash Place
(herein after called the suit premises). The appellant had entered into
a lease with the plaintiff/owner of the suit premises ( Respondent in
this case). He had executed a registered lease deed in favour of the
appellant on 20.12.2007 for 33 months with a lock in period of 11
RFA(OS) 85/2012 Page 1
months, during which the appellant could not terminate the
arrangement. The rent agreed was for three periods. From 17.12.2007
to 16.11.2008 the monthly rent was Rs.2,50,000/-; from 17.11.2008
to 16.10.2009 the rent was Rs.2,66,250/- and for the last block i.e.
17.10.2009 to 16.9.2010 the monthly rental was Rs.2,83,557/-.
2. The impugned judgment notices that for the month of April,
May and June, 2009 the plaintiff had allowed relaxation/remission to
the extent of Rs.2,16,250/- per month of the rent payable by the
defendant. This was on account of the Memoranda of Understanding
dated 14.4.2009, 13.5.2009 and 10.6.2009, marked before the learned
Single Judge as Ex.P-2, P-3 and P-6. The plaintiff stated that despite
termination of the lease by efflux of time, and inspite of issuing
notice to the defendant/appellant, vacant possession had not been
handed over. Furthermore, after adjustment of security deposit, the
appellant claimed a sum of Rs.2,19,505/- towards unpaid rent and
service tax. It also claimed mesne profits amounting to Rs.6,99,250/-
at the rate of Rs.3,46,125/- per month for the period 17.10.2009 to
17.12.2009. Apparently, the appellant vacated the premises only on
1.6.2011 after the suit had been filed in court.
3. The learned Single Judge, after noticing that the vacant
possession had been handed over and the relief sought in that regard
had become infructuous, proceeded to consider the submissions of
the parties and the materials on record and decreed the suit to the
extent of Rs.54,05,810/- along with costs. This was after adjusting
RFA(OS) 85/2012 Page 2
the sum of Rs.10,00,000/- repayable by the plaintiff to the appellant
towards security deposit in terms of the lease deed i.e. Ex. P-1.
4. Learned counsel for the Appellant urges that the learned single
Judge did not consider the purport of Ex.P-2, P-3 and P-6, which are
unequivocal as regards the remission of rent. Counsel emphasized
that even though the lease deed Ex.P-1 existed, under which the lessee
was bound to pay the agreed amount i.e. Rs.2,50,000/-, Rs.2,66,250/-
and Rs.2,83,557/- for three separate block periods, the fact was that by
virtue of the three Memoranda of Understanding (Ex.P-2, P-3 and P-6)
remission in payment of lease was agreed upon by the parties to the
said documents and the plaintiff could not insist upon the payment of
amounts in terms of the Lease Deed. Learned counsel also stressed
upon the fact that the Single Judge accepted the submission of the
plaintiff with regard to the payment of damages and mesne profits
even though no evidence had been led in that regard.
5. Counsel emphasized that the existence of Ex. P-2, P-3 and P-6
not having been denied, there was material on record to support the
contention that the rates of rent had fallen. Consequently, the burden
of justifying the plaintiff's claim for higher amounts as mesne profit
lay upon it. Since no evidence was led, the learned Single Judge
ought not to have proceeded to assess damages and mesne profits at
the rate at which he ultimately did while decreeing the suit.
6. By a previous order dated 4.1.2013, this Court had directed the
appellant to deposit the decretal amount. This was complied with on
24.1.2013. The Respondent deposited the sum of Rs.58,25,000/- and
RFA(OS) 85/2012 Page 3
a further amount of Rs.5,8,010/- in compliance of the Court's
direction.
7. At the outset, this Court notices that both the parties had agreed
before the learned Single Judge on 18.1.2011 that the suit should be
heard and finally decided on the basis of admitted documents as no
oral evidence was required in the matter.
8. It is evident from the impugned judgment that the single Judge
carefully analyzed the effect of the three documents, Ex.P-2, P-3 and
P-6, which is the mainstay of the appellant's case. These contain
identical provisions with respect to remission of rent for the periods
agreed according to which the appellant was to pay instead of
Rs.2,66,250/- only a sum of Rs.50,000/- each for the months of April,
May, and June, 2009. This was upon an overall analysis of Ex.P-2,
P-3 and P-6. The Court finds nothing in the stipulations (Clauses 2
and 3 of P-2, P-3 and P-6) to support the appellant's contention that
there was a blanket agreement to scale down the lease rental for the
remaining period. Furthermore, this Court notices that the Ex.P-1
bound the parties and was a registered lease deed. Its terms were
clear and unequivocal as regards the burden of lease rent to be paid for
various block periods. The appellant's contention that there was a
joint agreement to reduce the rent liability by modification of the
rents in the registered lease deed, by way of the stipulation in the three
Memoranda of Understanding, is without merit.
9. This Court, of course, does not see any necessity in exploring
this aspect further because the terms of Ex.P-2, P-3 and P-6 are
RFA(OS) 85/2012 Page 4
confined to only three months. The learned Single Judge held that
the effect of these was that the appellant's liability was not in any
manner brought down in respect of any period other than April, May
and June, 2009.
10. The further contention was that since there had been depression
in the market vis-à-vis the rents in similar or identical properties, the
plaintiff had to discharge the burden of proving its claim. It is an
obvious proposition that the primary responsibility is upon the
plaintiff to prove its case. The plaintiff claimed damages for use and
occupation at Rs.3,46,125/- per month. However, this Court notices
that the plaintiff did not chose to lead any evidence in support of its
claim. In these circumstances, the plaintiff's entitlement was held to
be limited to the agreed amounts, i.e. @Rs.2,66,250/- per month for
the period from 17.7.2009 to 16.10.2009 and @ Rs.2,83,557/- for the
period from 17.10.2009 to 31.5.2011. This conclusion is fair and
unexceptionable. In view of the above discussion, this Court finds
that there is no infirmity/ambiguity in the impugned judgment.
11. The appeal has to, therefore, fail. The appellant is further
directed to pay to the respondent cost of Rs.1,25,000/- within four
weeks from today. In view of the Court's conclusions, it is open to
the Respondent to withdraw the amounts deposited by the Appellant
as well as the amount of Rs.10,00,000/- deposited by it (the
respondent) pursuant to this Court's previous directions. The
respondent or its representative shall be present before the Registrar
on 19.3.2013 for consequential action towards refund of these
RFA(OS) 85/2012 Page 5
amounts to the plaintiff/respondent. The interest accrued on this
amount, pending disposal of the appeal, shall also be paid to
respondent/plaintiff.
12. The Appeal and pending application are dismissed, subject to
the above terms.
S. RAVINDRA BHAT
(JUDGE)
SUDERSHAN KUMAR MISRA
(JUDGE)
MARCH 12, 2013
aj
RFA(OS) 85/2012 Page 6
