Delhi High Court
Shyam Sunder & Anr. vs Rakavi Hospitality & Ors. on 16 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 16th September, 2014
+ CS (OS) NO. 2026/2013
SHYAM SUNDER & ANR. ..... Plaintiffs
Through: Mr. Sanjeev Sindhwani, Senior
Advocate with Mr. Sanjay Dua, Adv.
& Mr. Uday Joshi, Adv.
Versus
RAKAVI HOSPITALITY & ORS. ..... Defendants
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
G.P. MITTAL,J. (Oral)
IA No.3092/2014 (O.XII Rule 6 CPC) in CS (OS) NO. 2026/2013
1. Reply to the application has not been filed by the Defendants despite
opportunity being granted to them.
2. This suit for possession, recovery of rent, mesne profits, permanent
and mandatory injunction was filed by the Plaintiffs against the
Defendants with the averments that Defendant no.1, which is a
partnership firm of Defendants no.2 and 3, was inducted as a tenant in
the second floor of the property bearing no.N-11, Market Greater
Kailash-I, New Delhi-110048, measuring 1765 sq.ft. w.e.f. 01.05.2012
by a registered Lease Deed dated 23.04.2012. Initially, the rate of rent
was Rs.5,75,000/- per month but there was periodic increase in the
rent and hence, the rate payable w.e.f. 01.11.2013 was Rs.6 lacs per
month. It is averred that Defendant no.1 defaulted in payment of rent.
Cheques issued by Defendant no.1 towards rent for months of
February, 2013 to May, 2013 were dishonoured as a result of which a
criminal complaint under Section 138 of the Negotiable Instruments
Act, 1881 (N.I. Act) was filed in the court of Metropolitan Magistrate
concerned.
3. On repeated insistence, Defendant no.1 issued two pay orders dated
27.05.2013 and 03.07.2013 for Rs.2,91,000/- each and consequently,
the complaint under Section 138 of the N.I. Act was withdrawn.
However, Defendant no.1 failed to pay rent even for subsequent
period. Therefore, the Plaintiff by a legal notice dated 22.08.2013
terminated Defendant no.1's tenancy w.e.f. 30.09.2013.
4. In the written statement filed by the Defendants, the execution of the
Lease Deed and the rate of rent have not been disputed. However, in
para 3 of the written statement, the Defendants have stated that only
one or two cheques tendered by the Defendants were dishonoured and
the Defendants immediately sent cash in lieu of those cheques.
5. Service of the legal notice terminating the tenancy has not been
disputed. Rather, the Defendants have given a reply dated 30.09.2013
to the notice whereby the relationship of landlord and tenant and the
rate of rent have not been disputed. At the same time, it has been
stated that the notice served by the Plaintiffs contains only the half
facts. It has been stated that it was orally agreed between the parties
that the rent payable by Defendant no.1 to the Plaintiffs will be
flexible.
6. As per Order VIII R.3 CPC, the Defendant is under an obligation to
deal with each averment of the plaint to which he does not admit.
Evasive denial is no denial in law. For the purpose of decree of
possession, the Plaintiff has only to prove termination of tenancy in
terms of the lease, service of notice dated 22.08.2013 is admitted but
the Defendants have vaguely stated that one or two cheques were
dishonoured and the amount was sent in cash. They have not stated as
to how many cheques were dishonoured and how much amount was
paid in cash and when. Thus, the earlier said averment shall be
deemed to be admitted.
7. In view of these admissions, the Plaintiffs have become entitled to
judgment under Order XII Rule 6, CPC.
8. I accordingly pass a decree of possession in favour of the Plaintiffs
and against the Defendants in terms of para 20(a) of the plaint.
9. The application stands disposed of.
IA No.7253/2014 (O.15-A CPC)
1. Reply to the application has not been filed by the Defendants despite
opportunity being granted to them.
2. By an order dated 13.02.2014 passed in IA No.16859/2013 under
Order 15-A, CPC the Defendants were directed to pay the admitted
rent at the rate of Rs.5,75,000/- per month from March, 2013 till
February, 2014 within four weeks. The Defendants were further
directed to deposit monthly rent at the earlier stated rate on or before
7th of each calendar month.
3. The order dated 13.02.2014 requiring the Defendants to pay arrears of
rent and then to pay future rent month by month has not been
complied with. An application for striking out the defence of the
Defendants has been moved. The Defendants have failed to file any
reply to the application or give any justification for non compliance of
the order dated 13.02.2014. The defence of the Defendants is
therefore, ordered to be struck off.
4. The Learned counsel for the Plaintiffs states that the Plaintiffs restrict
their claim to the mesne profits to the agreed rate of rent.
5. As per the Lease Deed Ex.P-3, the tenancy was created between the
parties at the rate of Rs.5,75,000/- per month plus service tax w.e.f.
01.07.2012, Rs.6 lacs per month plus service tax w.e.f. 01.11.2013,
Rs.7,20,000/- plus service tax w.e.f. 01.05.2015 and Rs.8,64,000/-
plus service tax w.e.f. 01.05.2018.
6. The suit of the Plaintiffs is accordingly decreed for recovery of
rent/mesne profits at the rate of Rs.5,75,000/- plus service tax per
month from 01.03.2013 till 31.10.2013; at the rate of Rs.6 lacs plus
service tax from 01.11.2013 till 30.04.2015 as stated in the Lease
Deed. If the possession of the premises is not delivered by 30.04.2015,
the Plaintiff shall be entitled to recover mesne profits at the agreed
future rent as stated in para 5 earlier.
7. The Plaintiffs shall also be entitled to interest @ 7% per annum on the
arrears of rent i.e. the rent not paid monthly in terms of the lease.
8. The Plaintiffs shall be liable to pay the court fee under Order XX Rule
12 CPC on the amount being quantified on the recovery of the
rent/mese profits.
9. The suit of the Plaintiffs for grant of permanent injunction in terms of
para 20(b) of the plaint is also decreed.
10. The Plaintiffs will be entitled to costs of the suit.
(G.P. MITTAL)
JUDGE
SEPTEMBER 16, 2014
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