Delhi High Court
Mohan Murti Shandilya vs Pyare Lal Taheem & Anr. on 7 February, 2014
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 07, 2014
+ RFA(OS) 15/2014
MOHAN MURTI SHANDILYA ..... Appellant
Represented by: Ms.Ananya Bhattacharya, Advocate
with Mr.Mohan Shandliya, Appellant
in person
versus
PYARE LAL TAHEEM & ANR. ..... Respondents
Represented by: Mr.M.M.Kalra, Advocate with
Mr.Kunal Kalra, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.
1. Vide impugned decree dated July 30, 2013 noting that the defence of
the appellant had been struck of, a decree in sum of `23,45,430/- has been
passed in favour of the respondents and against the appellant with further
direction that if decretal amount is not paid within eight weeks the same
shall bear simple interest @12% per annum till date of payment.
2. To understand the contention advanced by the appellant as also to
understand the decree we need to note the relevant facts.
3. Pyare Lal Taheem and his wife Indra Rani Taheem (the respondents)
are owners of a 2½ storeyed building bearing Municipal No.C-106, NDSE
Part-II, New Delhi. Vide registered lease-deed dated December 03, 2010,
they let out to the appellant the ground and the first floor of their property
for a period of three years commencing from December 01, 2010 at a
monthly rent of `1,60,000/-. Water and electricity charges had to be borne
by the appellant as per actual consumption. Clause No.1 of the lease-deed
records that the payment schedule for the rent would be as under:-
Sr. Cheque No. Date Bank Period Amount
No.
1. 378002 26.11.2010 UCO Bank, 3 Months 9,60,000/-
Patiala Advance Rent &
House, New 3 months
Delhi Security.
2. 378003 26.11.2010 -do- 01.03.2011 80,000/-
3. 378005 01.03.2011 -do- 01.03.2011 80,000/-
4. 378007 01.04.2011 -do- 01.04.2011 80,000/-
5. 378008 01.04.2011 -do- 01.04.2011 80,000/-
6. 378009 01.05.2011 -do- 01.05.2011 80,000/-
7. 378010 01.05.2011 -do- 01.05.2011 80,000/-
8. 378011 01.06.2011 -do- 01.06.2011 80,000/-
9. 378012 01.06.2011 -do- 01.06.2011 80,000/-
10. 378013 01.07.2011 -do- 01.07.2011 80,000/-
11. 378014 01.07.2011 -do- 01.07.2011 80,000/-
12. 378015 01.08.2011 -do- 01.08.2011 80,000/-
13. 378016 01.08.2011 -do- 01.08.2011 80,000/-
14. 378017 01.09.2011 -do- 01.09.2011 80,000/-
15. 378018 01.09.2011 -do- 01.09.2011 80,000/-
16. 378019 01.10.2011 -do- 01.10.2011 80,000/-
17. 378020 01.10.2011 -do- 01.10.2011 80,000/-
18. 378021 01.11.2011 -do- 01.11.2011 80,000/-
19. 378022 01.11.2011 -do- 01.11.2011 80,000/-
20. 378023 01.12.2011 -do- 01.12.2011 to 9,60,000/-
30.11.2012
21. 378024 01.12.2011 -do- 01.12.2011 to 9,60,000/-
30.11.2012
22. 378025 01.12.2012 -do- 01.12.2012 to 9,60,000/-
30.11.2013
23. 378026 01.12.2012 -do- 01.12.2012 to 9,60,000/-
30.11.2013
4. As per Clause 14 of the lease-deed, the respondents received from the
appellant refundable security deposit in sum of `4,80,000/-. Clause 10 of
the lease-deed reads as under:-
"That in case Lessee desires to terminate the Lease
Agreement, for any reason, whatsoever, earlier than the
initial period of Three Years, the Lessee shall give two
months notice in writing, in advance, of his intention to
terminate the Lease Agreement. However, the Lessee shall
not terminate the Lease Agreement in the first two years and
six months of the Lease Agreement. I the even the Lessee
terminates the present agreement before the completion of
the First Two Years and Six Months, the Lessee shall be
liable to pay the Lease Rent for the balance of the months
remaining. The same shall apply to the Lessors also."
5. A perusal of Clause 10 makes it apparent that the lease could be
determined by the lessee by giving two months' notice in writing but subject
to the limitation that the lease would not be terminable in the first two years
and six months of the commencement of the lease. In the event the lessee
terminated the lease before completion of two years and six months, for the
balance period the remaining lease rent had to be paid. The same was to
apply to the lessors as well.
6. In other words as per Clause 10 in case appellant determined the lease
prior to two years and six months he had to pay the rent for the unexpired
portion of the period in question and vice versa.
7. CS(OS)No.1348/2012 was filed by the respondents seeking
ejectment, arrears of rent and mesne profits alleging that the cheques
No.378023 and 378024, listed at Sl.No.20 and 21 of the schedule as per
Clause 1 of the lease-deed were returned by the banker of the appellant due
to insufficiency of funds. Pleading that a right accrued to them to determine
the lease on account of non-payment of rent they were entitled to recovery
possession, arrears of rent and mesne profits till possession was regained.
8. On July 25, 2012, an order was passed in the suit requiring appellant
to pay arrears of rent which were admitted to be due within eight weeks.
The appellant filed a written statement along with a counter claim in sum of
`38,40,000/- alleging that the respondents having terminated the lease prior
to two years and six months period expiring and thus the appellant would be
entitled to the rent for the unexpired period, as per Clause 10 of the
agreement.
9. As proceedings lingered on in the suit the appellant vacated the
ground floor on April 30, 2013 but continued to occupy the first floor which
he vacated on May 27, 2013.
10. Since rent of the ground and the first floor as per the lease agreement
was `1,60,000/- per month, the respondents sought half agreed rent i.e.
`80,000/- per month from May 2013 onwards on account of appellant
retaining the ground floor of the property which admittedly was handed over
on May 27, 2013.
11. The impugned order and decree dated July 30, 2013 notes violation of
the interim order requiring appellant to pay the agreed rent and as a result
striking of the defence of the appellant. The learned Single Judge has
thereafter proceeded to pass a decree with respect to the unpaid rent for the
two floor till April 30, 2013 and `80,000/- for the month of May, 2013
pertaining to the ground floor, possession whereof was handed over on May
27, 2013. The decretal sum of `23,45,430/- has been arrived at as under:-
1. Lease rent from 01.12.2011 to 30.11.2012
`1,60,000/- per month x 12 `19,20,000/-
2. Lease rent from 01.12.2012 to 01.04.2013
`1,60,000/- per month x 5 `8,00,000/-
3. Lease rent for the month of May 2013
`80,000/-
(First floor of the suit property was handed
over to the Plaintiffs. See order dated
01.05.2013. The ground floor of the suit
property was handed over to the Plaintiffs
on 27.05.2013) `80,000/-
4. Electricity and water charges paid by the
Plaintiffs for the period the suit property
was in occupation of the Defendant `45,430/-
5. Total (1+2+3+4) `28,45,430/-
6. Less Security Deposit held by the Plaintiff `4,80,000/-
7. Total amount to be paid by the Defendant
to the Plaintiffs `23,45,430/-
12. The contention of the appellant is that he had replaced the cheques
which were dishonoured by two cheques of even amount i.e. `4,80,000/-
each which the respondents deliberately did not encash. According to the
appellant if the cheques had been encashed the respondents would not be
entitled to determine the lease within two years and six months of
commencing of the lease and default would attract Clause 10 of the lease-
deed, requiring the respondents to pay the lease sum to the appellant for the
balance of the two years and six months period because Clause 10 of the
lease agreement cuts ice both ways. If the lessee determined the lease
before two years and six months expired, the lessee was to pay to the lessor
rent for the remainder period. If the lessor determined the lease, likewise the
lessee had to be recompensed.
13. Now, the conceded position is that the respondents received payment
under the lease agreement only till the month of November 2011 i.e. the
cheques at Sl.No.1 to 19 of Clause 1 of the lease agreement were encashed.
The two cheques at Sl.No.20 and 21, each in sum of `9,60,000/- were
admittedly dishonoured. The defence of the appellant being struck of we
cannot proceed on the basis of appellant's assertion that he replaced the
cheques with two new cheques.
14. Thus, the act of the respondents to have determined the lease flows
not from Clause 10 but from the fact that punctual payment of the rent is a
condition of the lease.
15. The appellant would not dispute that rent commencing from the
month of December, 2011 till April, 2013 has not flown from his coffers to
those of the respondents. The appellant also does not dispute that `80,000/-
has not flown to the coffers of the respondents from his coffers for rent
pertaining to the ground floor for the month of May, 2013. The appellant
does not dispute that outstanding electricity and water charges payable were
`45,430/-. Thus, concededly the appellant has to pay `28,45,430/-. The
respondents have a security deposit in sum of `4,80,000/- under the lease
agreement. Thus, appellant is liable to pay to the respondents `23,45,430/-.
16. The impugned decree is affirmed.
17. Parties shall bear their own costs in the appeal.
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
FEBRUARY 07, 2014
rk
