Gurubachan Singh Sodhi vs M/S. Hdfc Standard Life Insurance ...
2014 Latest Caselaw 2126 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                   F.A.O. No.58/2013 & C.M. Nos.2264-2265/2013

                                            Decided on : 29th April, 2014

GURUBACHAN SINGH SODHI               ...... Appellant
            Through: Mr. Sameer Dewan, Advocate.

                          Versus

M/S. HDFC STANDARD LIFE INSURANCE CO. LTD.
                                         ...... Respondent
              Through: Mr. Joy Dip Bhattacharya, Advocate.

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

V.K. SHALI, J. (ORAL)

1. This is an appeal under Section 104 read with Order XLIII CPC

against the order dated 19.12.2012 passed by the learned Additional

District Judge-6 (West), Tis Hazari Courts, Delhi, rejecting the

application of the appellant herein filed under Order 39 Rule 10 read with

Order 12 Rule 1 and Section 151 CPC, seeking direction to the

respondent herein to pay or deposit the rent @ Rs.2,31,525/- per month

for the period for which it is in occupation of the suit premises and

continue to pay the same till the vacant possession is handed over to him

2. Briefly stated the facts of the case leading to the filing of the

present appeal are that the respondent, a private financial institution, had

taken the premises, on the first and the second floor, at property bearing

plot No.6, Block B, DDA Local Shopping Complex, Dilshad Garden,

New Delhi-110095, on rent from the present appellant vide lease

agreement dated 12.4.2007. The period of lease was commencing from

3.5.2007 to 2.5.2010 and the monthly rent was Rs.2 lacs. It was alleged

by the respondent that the lease was further renewed by a letter dated

24.5.2010 for a further period of three years starting from 3.5.2010 till

2.5.2013 in terms of the lease agreement. The rent was also increased to

Rs.2,31,525/- per month. It was alleged in the plaint that the respondent

vide letter dated 18.10.2010 had intimated to the appellant its intention to

vacate the premises and hand over the vacant and peaceful possession to

him on 31.12.2010 and accordingly, demanded the refund of security

amount purported to have been deposited by the respondent with the

appellant/landlord. It was alleged that a sum of Rs.6 lacs was refunded to

the respondent/tenant vide cheque dated 1.7.2009 drawn on SBI. Since

the respondent/tenant could not vacate the premises with effect from

31.12.2010, it could not do so as the present appellant/landlord had

refused to refund the security amount. The respondent/tenant filed a suit

for recovery of Rs.10,11,331/- along with pendente lite and future interest

by way of refund of security.

3. The appellant/landlord contested the claim of the

respondent/tenant and setup a counter-claim for a sum of Rs.19,52,200/-

on account of arrears of rent, miscellaneous payments as well as for

removal of defects and damages caused to the leased property. A

direction was also sought to hand over the possession of the leased

property to the appellant/landlord. During the pendency of the suit, the

appellant/landlord also filed an application seeking a direction to the

respondent/tenant that it must be directed to pay arrears of rent amounting

to Rs.41,67,525/-, that is, at the rate of Rs.2,31,525/- multiplied by 18

months which will cover rent upto 31.5.2012 and continue to pay rent

thereafter @ Rs.2,31,525/- per month till the vacant possession of the suit

premises is restored to the appellant/landlord.

4. The respondent/tenant contested the application of the

appellant/landlord by raising a preliminary objection that the application

under Order 39 Rule 10 CPC was not maintainable on the ground that

there was no admission with regard to the payment of rent by the

respondent/tenant. On merits also, it disputed the obligation of the

respondent/tenant to pay the rent as it had terminated the tenancy and had

asked the appellant/landlord to take the possession of the premises back

which he had failed to do. It was stated that so far as the question of

refund of security amount is concerned, that could not be setup as a

defence by the appellant/landlord in not taking the possession and the

respondent/tenant was discharged of its obligation to pay the rentals once

it had expressed its intention to vacate the premises. It had also taken the

plea that in terms of Clause 8 of the lease deed, in the event of

termination of the lease by the tenant and the default on the part of the

lessor, that is, the appellant/landlord, in refunding the security deposit, the

respondent/tenant was entitled to remain in possession of the demised

premises without payment of rent and other charges and, therefore, on

this ground also, the appellant/landlord was not entitled to any rentals.

5. So far as the appellant/landlord is concerned, he raised the question

with regard to the validity of the notice of termination of tenancy by

contending that in terms of the agreement between the parties, a six

months' notice was required to be given while as only two months' notice

was given and, therefore, the notice of termination was not valid. It had

also contended that till the physical possession of the premises is not

actually handed over to the appellant/landlord by the respondent/tenant,

the liability of the respondent/tenant to pay the rentals did not cease to

exist.

6. Per contra the learned counsel for the respondent/tenant had relied

upon three judgments, namely, AIR 1988 Rajasthan 44, AIR 1953 Madras

1996 and a judgment of our own High Court in Associated Journal Ltd.

vs. ICRA Ltd. to buttress his point that once a tenancy has been

terminated and he has expressed his intention to the appellant/landlord to

take back the possession of the premises in question, he was relieved of

the obligation to pay the rentals and thereby, in the instant case also, the

respondent/tenant was relieved of the obligation to pay the rentals to the

appellant/landlord in terms of the agreement between the parties.

7. The appellant/landlord had placed reliance on AIR 1965 Madras

417 to contend that it was essentially on the respondent/tenant to have

discharged the onus of proving that the delivery of possession of the

property has been restored back to the appellant/landlord whereupon its

obligation to pay the rent would cease to exist.

8. The learned trial court, after hearing the learned counsel for the

parties, observed that the appellant/landlord cannot claim any rent from

the plaintiff, namely, the respondent/tenant after 31.12.2010 as the

appellant/landlord had refused to take the possession of the tenanted

premises despite having been offered to him by imposing certain

conditions. Therefore, the respondent/tenant was deemed to have

delivered the possession.

9. The learned Additional District Judge has also rejected the

argument of the appellant/landlord that the notice of termination of

tenancy was not valid as it was not a six months' notice. This argument

was rejected by the learned Additional District Judge on the ground that

the appellant/landlord was blowing hot and cold inasmuch as on the one

hand, he is denying the extension of lease deed and on the other hand, he

is claiming monthly rent at an enhanced rate of Rs.2,31,525/-.

Accordingly, the trial court has rightly held that six months' notice was

not required to be served and although, the respondent/tenant had given

two months' notice terminating the tenancy but actually under Section

106 of the Transfer of Property Act, a fifteen days' notice was sufficient

enough to meet the requirement of law with regard to termination of

tenancy.

10. I have considered the rival submissions made by the learned

counsel for the parties and have also gone through the impugned order.

Order 39 Rule 10 CPC reads as under :-

"Deposit of money, etc., in Court - Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that is belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court."

(emphasis added)

11. A perusal of the aforesaid Rule would show that where the subject

matter of a suit is money and any party thereto admits that he holds such

money as a trustee of another party or that it belongs or is due to another

party, the court may order the same to be deposited in court.

12. A perusal of the aforesaid Rule 10 of Order 39 CPC would clearly

show that the very basis of passing an order under sub-Rule 10 is some

kind of admission purported to have been made by a party with regard to

the payment of money. In the instant case, no doubt the relationship of

the landlord and tenant which existed between the parties is not in dispute

but the factum of admission with regard to payment of money by way of

rentals is not at all admitted as the same is intrinsically linked with the

holding of the premises by the respondent/tenant. In the instant case, the

very question of obligation of the respondent/tenant to pay the rent is in

dispute. The case which has been setup by the respondent/tenant for

refund of the security is that it had given a notice of termination of

tenancy and disclosed its intention to vacate the premises in question with

effect from 31.12.2010 to the appellant/landlord and in terms of the

agreement, it had asked for refund of its security amount as a pre-

condition for vacating the premises. It had also stated in the plaint that as

the security amount was not refunded to it, therefore, it is holding over

the premises without any obligation to pay the rent to the

appellant/landlord in terms of the agreement. Though, during the course

of arguments and when the Local Commissioner was appointed, it had

taken the plea that it had vacated the premises which was contrary to its

pleadings. An oral argument which is made during the course of

submissions and which is contrary to the averments made in the

pleadings, cannot be taken cognizance of, therefore, there is no doubt

about the fact that the respondent/tenant has not handed over the

possession of the suit premises to the appellant/landlord as averred by it.

The question as to whether this offer which was made by the

respondent/tenant to the appellant/landlord which has been taken to have

absolved the respondent/tenant of its obligation to pay the rent as the

learned trial court has observed that by this offer, the respondent/tenant is

deemed to have delivered the possession, is in itself to be decided by the

trial court after the parties have adduced their respective evidence. The

view which has been expressed by the trial court that the

respondent/tenant is deemed to have delivered the possession of the suit

premises by this aforesaid offer is only tentative and the learned trial

court ought to have conditioned its observations by a caution that this was

only a tentative finding and would not impact the decision on the merits

of the case after the parties have adduced their respective evidence. To

that extent the finding of the trial court is certainly not sustainable as it

cannot be termed to be a final adjudication of the payment of or recovery

of rent by the appellant/landlord which is to be adjudicated by the trial

court. This intrinsically connected to the handing over the possession of

the premises to the appellant/landlord.

13. The three judgments which have been relied upon by the

respondent/tenant to substantiate its submissions, that once the

respondent/tenant has written a letter to the appellant/landlord that it is

vacating the premises and it is prepared to hand over the possession of the

suit premises to the appellant/landlord and the later does not come

forward to take the possession or puts a condition of restoring the

premises to the same position as was given to him, will be sufficient

enough to draw a presumption that the possession has been handed over

to the appellant/landlord, cannot be taken advantage of by the

respondent/tenant for the simple reason that the facts of the reported cases

are distinguishable from the facts of the present case. In one of the cases

in such a contingency, the tenant had deposited the keys of the tenanted

premises with the court when the landlord had refused to take the

possession while as in the instant case; no such thing has been done by

the respondent/tenant. In none of the three cases which has been relied

upon by the respondent/tenant, there was an averment made in the plaint

that it is holding over the possession of the premises despite having

vacated the premises. It had declared its intention to terminate the

tenancy on account of the fact that its security deposit is not being

refunded. In such a contingency, it cannot be said that the liability of the

respondent/tenant to pay the rent ceases to exist unless and until there is a

categorical finding in this regard arrived at by the trial court after the

parties have adduced their respective evidence and the respondent/tenant

is able to show to the court that this was one of the essential conditions of

the renewed terms and conditions of the lease deed. Therefore, at this

stage, it cannot be decided prima facie on the basis of the documents in

either way.

14. Similarly, it was not open to the appellant/landlord to have also

refused to accept the possession of the tenanted premises on the spacious

ground that merely because the premises have not been restored to status

quo ante when they were let out, that he would not accept the possession

of the premises. The appellant/landlord could have accepted the delivery

of the possession, got the damages assessed and thereafter sued the

respondent/tenant for the damages rather than refusing to accept the

delivery of the possession. In the same way, the respondent/tenant could

have also deposited the keys of the premises with the court de hors the

non-refund of the security deposit. All these issues are yet to be

adjudicated by the court below, therefore, although, no fault can be found

with the outcome of the impugned order in rejecting the application of the

appellant/landlord under Order 39 Rule 10 read with Order 12 Rule 1

and Section 151 CPC in not giving direction to the respondent/tenant to

pay the rent as prayed by the appellant/landlord but certainly this was

only a tentative opinion with regard to the rights and obligations of the

parties and could not be treated as final. The trial court ought to have

observed that the expression of any opinion in this regard is only tentative

which has not been done.

15. Accordingly, the appeal of the appellant is rejected except with the

observation that the findings returned by the first appellate court vide its

impugned order dated 19.12.2012 are only tentative and shall not be

referred to by either of the parties while deciding the issue with regard to

payment of rentals as claimed by the appellant/landlord in his counter-

claim at the time of final adjudication.

V.K. SHALI, J.

APRIL 29, 2014 'AA'