M/S Israni Telecom Pvt Ltd vs Sh Akhil Rohtagi & Ors
2014 Latest Caselaw 485 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 27th January, 2014

+                               RFA 351/2013
       M/S ISRANI TELECOM PVT LTD              ..... Appellant
                     Through: Mr. Chetan Sharma, Sr. Adv. with
                              Mr. Praveen Mahajan, Adv.

                                   Versus

       SH AKHIL ROHTAGI & ORS                  ..... Respondents
                   Through: Mr. Shyam Dutt & Mr. Akhil
                            Rohatgi, Advs. for R-1.

                                   AND

+                               RFA 406/2013

       M/S ISRANI TELECOM PVT LTD              ..... Appellant
                     Through: Mr. Chetan Sharma, Sr. Adv. with
                              Mr. Praveen Mahajan, Adv.

                                   Versus

    SH AKHIL ROHATGI & ORS                    ..... Respondents
                  Through: Mr. Shyam Dutt & Mr. Akhil
                           Rohatgi, Advs. for R-1.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The two appeals impugn the common judgment dated 7 th February,

2013 of the Additional District Judge (ADJ), Central-8, Delhi of dismissal of

CS No.01/10 (ID No.02401C1062582005) filed by the appellant / plaintiff

and allowing the counter claim No.2/05/10 (ID No.02401C1051662005)

filed by the respondents / defendants. The appeals were admitted for hearing

and notice thereof accepted by the counsel for the respondents / defendants

and the Trial Court record requisitioned. The counsels have been heard.

2. The appellant / plaintiff instituted the suit aforesaid for perpetual and

mandatory injunction and for recovery of Rs.10,00,000/- as damages,

pleading;

(i) that the appellant / plaintiff was engaged in the business of

providing telecommunication equipment and trans-receiver

tower and other telecom facilities to various companies;

(ii) that under an agreement between the appellant / plaintiff and

the respondents / defendants, the respondents / defendants

agreed to provide to the appellant / plaintiff land area of their

property No.21, Spencers Lane, Alipur Road,

New Delhi for the purpose of setting up radio trans-

receiver telecommunication equipment and a radio

trans-receiver tower for a period of ten years commencing

from 11th August, 1997;

(iii) that in consideration of the aforesaid, the appellant / plaintiff

was to deposit an interest free refundable security deposit in

the sum of Rs.11,00,000/- with the respondents / defendants;

(iv) that out of the said sum of Rs.11,00,000/-, Rs.1,00,000/- was

paid vide cheque dated 1st January, 1997 and the balance

Rs.10,00,000/- was payable by 15th August, 1997 and upon

non payment of the balance amount, the appellant / plaintiff

was liable to pay interest @ 30% per annum;

(v) that the appellant / plaintiff could determine the agreement by

serving at least two months notice and whereupon the

appellant / plaintiff was entitled to refund of the said

Rs.11,00,000/-;

(vi) that the appellant / plaintiff till the date of institution of the

suit on 4th May, 2000, out of the aforesaid sum of

Rs.11,00,000/- paid a sum of Rs.5,85,000/- to the respondents

/ defendant and was ready and willing to perform its

obligations under the agreement and had also installed its BTS

system which included radio trans-receiver

telecommunication equipment and trans-receiver tower for the

purpose of creating a cellular base station on the said premises

of the respondents / defendants;

(vii) that the respondents / defendants however without any notice

or intimation and for mala fides reasons, on 30th April, 2000

locked the premises and prevented the ingress and egress of

the appellant / plaintiff thereto and refused to allow access to

the appellant / plaintiff inspite of repeated requests and

reminders;

(viii) that the appellant / plaintiff ultimately with the intervention of

the police was able to enter the premises on 1st May, 2000;

(ix) that the respondents / defendants thereafter also interfered

with the ingress and egress of the appellant / plaintiff to the

premises affecting the operation and maintenance of the

equipment installed in the premises and the operation of the

cellular service therefrom;

the appellant / plaintiff accordingly sought injunction restraining the

respondents / defendants from interfering with the peaceful ingress and

egress of the appellant / plaintiff to the said premises, for mandatory

injunction directing the respondents / defendants to remove their locks from

the premises and for recovery of Rs.10,00,000/- as damages on account of

loss of revenue and reputation.

3. The respondents / defendants contested the suit by filing a written

statement and also made a counter claim for recovery of possession of the

portion of the property aforesaid occupied by the appellant / plaintiff and for

recovery of mesne profits on the grounds:

(a) that as per the agreement dated 1st January, 1997 between the

parties, upon the failure of the appellant / plaintiff to pay the

balance Rs.10,00,000/-, the appellant/plaintiff was required to

pay Rs.25,000/- per month in lieu thereof;

(b) that the appellant / plaintiff failed to pay the balance

Rs.10,00,000/- and upon the respondents / defendants

threatening to terminate the agreement, persuaded the

respondents / defendants to enter into a fresh agreement deed

dated 11th August, 1997 on the same lines as the earlier

agreement;

(c) that the appellant / plaintiff from time to time paid further

amounts to the respondents / defendants in discharge of its

obligation to pay Rs.25,000/- per month in lieu of the balance

amount of Rs.10,00,000/-;

(d) that the appellant / plaintiff thereafter stopped paying the said

amount of Rs.25,000/- per month also and owing whereto the

respondents / defendants vide notice dated 9th October, 1999

determined the lease of the appellant / plaintiff;

(e) that the appellant / plaintiff being in breach of the agreement,

was not entitled to the reliefs of injunction or the relief of

recovery of damages;

Accordingly, while praying for dismissal of the suit filed by the

appellant / plaintiff, counter claim for recovery of possession of the premises

and for recovery of the amounts due as per the agreement till the date of

institution of the counter claim and for future mesne profits was filed.

4. Needless to state that the appellant / plaintiff filed a written statement

to the counter claim and both parties filed replications to the written

statements of each other.

5. On 4th January, 2008, the following issues were framed in the suit:

"(i) Whether the suit is signed and instituted by a duly authorized person?(OPP)

(ii) Whether the plaintiff is entitled for the relief of permanent injunction? (OPP)

(iii) Whether the plaintiff is entitled for the relief of mandatory injunction? (OPP)

(iv) Whether the plaintiff is entitled for the relief of damages as claimed? (PP)

(v) Whether the agreement dated 11.8.1997 was executed between the plaintiff and late Sh.Brij Behari (karta of HUF) in supersession of agreement dated 1.1.1997 executed between them? (OPD)

(vi) Whether the amount of Rs.1,25,000/- paid by the plaintiff to late Sh. Brij Behari at the time of execution of agreement dated 11.8.1997 was for the monthly payment of Rs.25,000/- per month w.e.f. 1.1.1997 to 31.7.1997? (OPD)

(vii) Whether the plaintiff has complied to perform their part of contract as per agreement dated 11.8.1997? (OPP)

(viii) Whether the lease of the suit property was terminated

by the defendant no.1 to 5 vide legal notice dated 9.10.1999?(OPD)

(ix) Relief."

and the following issues were framed in the counter claim:

"(i) Whether the counter claimant/ defendants no.1 to 5 have paid appropriate court fees?(OPD)

(ii) Whether the counter claimant/defendants no.1 to 5 have terminated the lease agreement vide notice dated 9.10.1999. If so, its effect?(OPD)

(iii) Whether the lease agreement executed between the parties has expired by efflux of time?(OPD)

(iv) Whether the counter claimant/defendants no.1 to 5 are entitled for decree of possession of the suit property?(OPD)

(v) Whether the counter claimant/defendant no.1 to 5 are entitled to relief of damages as claimed?(OPD)

(vi) Relief."

6. However the Issues No.(v) to (viii) supra in the suit were deleted vide

order dated 16th March, 2010.

7. The learned ADJ on the basis of the evidence led before him has

dismissed the suit of the appellant / plaintiff and decreed the counter claim

of the respondents / defendants, finding / observing / holding:

(I) that the suit of the appellant / plaintiff was instituted and

signed by a duly authorized person;

(II) the respondents / defendants had paid proper court fees on the

counter claim;

(III) that the counsels for the parties had not disputed that the

agreement dated 1st January, 1997 between the parties could be

read in evidence;

(IV) that the appellant / plaintiff had admittedly not paid the balance

amount of Rs.10,00,000/- to the respondents / defendants

though had in the subsequent agreement dated 11 th August,

1997 proved as Ex.PW1/1 also had agreed to pay the balance

amount of Rs.10,00,000/- by 15th August, 1997;

(V) that though it was the plea of the appellant / plaintiff that there

was a delay on the part of the respondents / defendants in

delivering possession of the premises but there was no merit

therein since the appellant / plaintiff had entered into a further

lease of the equipment installed in the property of the

respondents / defendants with M/s Bharti Cellular Ltd. and

there was nothing to show that there was any disturbance

therein and the appellant / plaintiff had never written to the

respondents / defendants that it had not been delivered

possession;

(VI) that the appellant / plaintiff, in addition to Rs.1,00,000/- paid

Rs.4,85,000/- to the respondents / defendants towards rent /

interest in lieu of the security deposit;

(VII) that however the appellant / plaintiff defaulted in payment of

said rent / interest also, compelling the respondents /

defendants to terminate the agreement with effect from 10 th

November, 1999;

(VIII) that the appellant / plaintiff after 10th November, 1999 was not

left with any right in the property;

(IX) accordingly Issues No.(ii), (iii) & (iv) in the counter claim

were decided in favour of the respondents/defendants and

against the appellant / plaintiff;

(X) that the appellant / plaintiff being in breach of the agreement

was not entitled to the relief of injunction claimed;

(XI) even otherwise the lease having been terminated, the appellant

/ plaintiff could not be granted the injunction;

(XII) accordingly Issue No.(ii) in the suit was decided against the

appellant / plaintiff;

(XIII) that the appellant / plaintiff was liable to pay the agreed rate of

Rs.25,000/- per month to the respondents / defendants from

11th August, 1997 to 10th November, 1999 and at the rate of

Rs.30,000/- per month with 10% increase after every three

years till delivery of possession.

8. The only argument urged by the senior counsel for the

appellant/plaintiff is that the learned ADJ erred in reading the contents of the

Agreement dated 11th August, 1997 between the parties proved as Ex.PW-

1/4 inspite of the same being unstamped and unregistered. Reliance in this

regard is placed on K.B. Saha and Sons Private Limited Vs. Development

Consultant Limited (2008) 8 SCC 564. It is argued that the clause in an

unregistered lease deed for payment of rent cannot be held to be collateral

purpose. It is contended that the appeals should be allowed and the suit and

counter claim be remanded to the Trial Court for confiscation of the

document and adjudication afresh.

9. The counsel for the respondents, to meet the aforesaid argument, has

relied on Ahmedsaheb Vs. Sayed Ismail (2012) 8 SCC 516.

10. The Supreme Court in K.B. Saha and Sons Private Limited supra has

held that a document required to be registered, if unregistered, is not

admissible in evidence under Section 49 of the Registration Act, 1908;

though it can be used as an evidence for collateral transaction/purpose as

provided in the proviso to Section 49 of the said Act but such collateral

transaction must be independent or divisible from the transaction which

required registration and must not itself be registrable. It was yet further

held that use of an unregistered document to prove an important clause

thereof would not be a use for collateral purpose.

11. In Ahmedsaheb supra relied upon by the counsel for the respondents,

the Supreme Court was concerned with a suit for recovery of arrears of rent;

though the plaintiff therein relied upon a rent deed but finding the same to be

unregistered, it was held that it cannot form the basis to support the claim of

the plaintiff for recovery of rent due; however, further finding other

uncontroverted evidence available on record to support the claim of the

plaintiff, the decree for recovery of rent was upheld. It was observed that

the relationship of landlord and tenant was not in controversy and the

defendant had himself pleaded the rate of rent. In this view of the matter, it

was held that the suit could not have been dismissed only on the ground of

rent deed being unregistered, as admission of a party in the proceedings

either in pleadings or oral is the best evidence and does not need any further

corroboration.

12. The senior counsel for the appellant/plaintiff appears to have raised

the argument aforesaid only for the sake of it. There was no controversy in

the present case also of the relationship between the parties or of the

consideration agreed to be paid and the terms thereof. Rather, the

appellant/plaintiff itself had set out all the said facts in the plaint. Thus,

from a mere factum of the Agreement dated 11th August, 1997 being

unregistered, it cannot be said that the judgment and decree of the learned

ADJ is erroneous. The facts of the present case are akin to those in the

judgment cited by the counsel for the respondents.

13. In fact, I had during the hearing enquired from the senior counsel for

the appellant/plaintiff as to what the appellant/plaintiff really wanted, as the

appellant/plaintiff has not shown any inclination to abide by the Agreement.

The senior counsel for the appellant/plaintiff fairly stated that all that the

appellant/plaintiff is interested in is refund of the monies paid to the

respondents.

14. However, neither has the appellant/plaintiff claimed the said relief nor

am I able to find the appellant/plaintiff entitled to such refund. The

appellant/plaintiff as aforesaid was itself in breach of the terms of the

Agreement with the respondents. The appellant/plaintiff has neither paid the

entire interest fee security deposit which it had agreed to pay nor paid the

interest at the rate agreed on the balance security deposit which it had agreed

to pay and which amount in the impugned judgment has been

interchangeably referred to as the rent. The appellant/plaintiff has

admittedly occupied and used the premises of the respondents. It is also in

evidence that the appellant/plaintiff has itself earned from the said premises

by further subletting to the same to Bharti Cellular Limited. The

appellant/plaintiff cannot be allowed refund of whatever it has paid to the

respondents in terms of its Agreement with the respondents.

15. There is thus no merit in the appeals which are misconceived and

frivolous and are dismissed with costs. Counsels fee assessed at Rs.20,000/-

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

JANUARY 27, 2014 'gsr/bs'