Delhi High Court
Goodwill Appartment Pvt Ltd vs Velvet Apple Hotels Pvt Ltd & Anr on 23 March, 2016
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on February 09, 2016
Judgment delivered on March 23, 2016
+ IA 19582/2013 & CS(OS) 1345/2013 with IA Nos.
24206/2014, 10734/2013
GOODWILL APPARTMENT PVT LTD
..... Plaintiff
Through: Mr. Kirti Uppal, Sr. Adv.
with Mr. L.M. Asthana, Mr.
Sidhant Asthana & Mr.
Siddharth Chopra, Advs.
versus
VELVET APPLE HOTELS PVT LTD & ANR
..... Defendant
Through: Mr. Mohit Chaudhary, Adv.
with Ms. Damini Chawla &
Mr. Kunal Sachdeva, Advs.
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
IA 19582/2013
1. By this order, I shall dispose of the application filed by the
plaintiff under Order XV-A of the Code of Civil Procedure being I.A
No. 19582/2013. Before I narrate some of the relevant facts, I may only
note, the relief claimed by the plaintiff, the landlord, in the suit, is
primarily for possession of the entire suit property consisting of entire
basement, ground floor, and first floor comprising of 17 fully furnished
rooms with attached bathrooms, reception area etc. The plaintiff has also
sought, a decree, for a sum of Rs.1,13,46,000/- i.e. recovery of arrears of
rent for the period up till 31st January, 2013, along with future rent as
Rs.10,35,000/- till the possession is handed over with interest @24% p.a.
The prayers made in the application are as under:-
"(a) Pass an order striking off the defence of the
Defendants thereby decreeing the suit of the Plaintiff for
a sum of Rs. 1,89,87,909/- in favour of the Plaintiff and
against the Defendants;
(b) Any other relief/order which this Hon'ble Court may
deem fit and proper may be passed in favour of the
Plaintiff and against the Defendants."
2. The subject matter of the suit is E-82, Greater Kailash, Part-I, New
Delhi-110048 consisting of entire basement ground floor and first floor
comprising of 17 fully furnished rooms with attached bathrooms,
reception area and kitchen along with use of common passage and other
usual facilities related to the said premises with fixtures and fittings and
the same was leased out to the defendants. The case of the plaintiff is
that the suit was listed before this court on July 12, 2013 when this Court
had passed an interim order in favour of the plaintiff as per which, the
defendants were restrained from creating any third party interest in the
suit or transferring or alienating in any manner whatsoever and further
from handing over whole or any part of the suit premises to any third
party or causing any damages, structural alterations/construction in the
suit premises. The defendants were further directed to deposit in Court,
the entire arrears of rent up to date by next date of hearing i.e. December
3, 2013 in respect of suit premises.
3. It is averred in the application that the plaintiff/applicant moved an
application under Order XXXVIII Rule 1 and 5 read with Section 151
CPC apprehending that defendant No.2 will abscond from the territorial
jurisdiction of this Court in order to frustrate the suit of the plaintiff. The
said application was listed on September 9, 2013 and the defendants
appeared along with counsel and handed over the keys of the suit
premises in the Court and after hearing both the parties, this Court
appointed a local commissioner to visit the suit premises and to open the
locks and with the direction to hand over the possession to the plaintiff.
The plaintiff would state, that he has not received any intimation
regarding the deposit of arrears of rent. The plaintiff has also averred that
there are arrears of statutory dues unpaid by the defendants like dues
towards MCD on account of user charges for the period of 2008-2014;
dues towards electricity, water bills etc. The plaintiff would aver that the
defendants have been in constant breach of the various terms of the lease
deed and have been in arrears of rents during the period of the lease
deed. In para 10 of the application, the plaintiff has averred that the
defendants have been directed by this Court to deposit in Court, up to
date arrears of rent vide order dated July 12, 2013. The defendants are in
arrears of Rs.1,89,87,909/- and the said order is a condition precedent for
the defendants, in order to proceed with their defence. In the light of the
defendants handing over the keys before this Court in terms of order
dated September 09, 2013, the defendants have admittedly been in
possession till September 09, 2013 and are therefore, liable to pay the
rents in court which is an incontestable legal obligation of the
defendants.
4. The defendants have not filed any reply to this application except,
learned counsel for the defendants, during the hearing on July 31, 2014
stated that the reply is not necessary to this I.A and the written statement
filed, may be treated as his reply to the application as well. In the
written statement, it is the case of the defendants that the plaintiff
approached the defendants with the property located at E-82, GK-I, New
Delhi, giving a very rosy image of its location and construction. The
plaintiff gave false image to the extent that the entire building occupant
pays the maintenance charges and the building is well maintained. The
defendants had stated that a lease deed dated December 26, 2008 was
executed between the plaintiff and the defendants, for a period of three
years, pursuant to which, the defendants were put into occupation of 17
rooms. According to the defendants, at the time of execution of the
original lease deed, the defendants handed over to the plaintiff, 24 post
dated cheques (PDCs) bearing numbers 038926 to 038950 each for an
amount of Rs.6,96,060/-, which constituted advance rent for the period
from January, 2009 to January, 20l1.
5. The defendants' case is that, the figure of Rs 6,96,060/- was
arrived at after deducting TDS at the rate of 22.66% of the agreed lease
of Rs 9,00,000/- under the original lease agreement. From January, 2009
till August, 2009 the cheques from same series were presented and were
honoured towards the liability of rent. Thus, 8 cheques bearing No.
38926 and 38933 were honoured. In the month of September, 2009 the
parties re-negotiated the rent amount and reduced it from Rs. 9,00,000/-
to Rs.7 lakhs. The factum of reduction in rent after negotiation is
admitted by the plaintiff in para No. 6. The defendants denied the stand
of the plaintiff that reduction was only for a particular year. According to
the defendants, it is in this background, that amounts of Rs.7 lakhs less
TDS at the rate of 10.3% was being paid by defendants to the plaintiff.
As, now the cheques were given from time to time for the amount of
Rs.7 lakhs less TDS, the earlier cheques No. 38934 - 38950 remained in
the hands of plaintiff, which are being misused by it. It is the case of the
defendants that any claim of arrears of rent for any period within the
tenure of the original lease period is disputed and denied, as with the
plaintiff's consent altered the original lease deed as far as monthly rent is
concerned. The plaintiff accepted the defendants payment of reduced
monthly rent at the rate of Rs.7 lakhs per month without any protest and
demur. The original lease deed is statutorily barred under Section 62 of
the Indian Contract Act.
6. The defendants in their written statement has also sought dismissal
of the suit on the ground of concealment of vital facts with regard to
adjustment of Rs.36 lakhs, which was admittedly lying with the plaintiff
as security amount. According to the defendants, as per clause 2(xi)of
the lease deed dated December 26, 2008, a sum of Rs. 36 lakhs was
given by the defendants to the plaintiff, as security deposit. That with the
ending of financial year March 31, 2013, a joint meeting was undertaken
by defendant No. 2 with Mr. G.S. Jolly of the plaintiff company, wherein
it was decided that the security amount of Rs. 36 lakhs would be
adjusted towards the future rents i.e. for four months. At that stage,
defendant No. 2 made it clear that due to booking in hands, it is not
possible for him to vacate the premises before September, 13, 2013.
Thus, it was agreed that the security amount would be adjusted between
the parties, wherein for an intervening month i.e. for the month of June,
2013 defendants would pay the entire rental and thereafter security
amount will be adjusted towards rental of July and August 2013. In other
words, the agreement for that period of four months would be split in
April and May in one batch, thereafter for June defendants would pay the
rent and again July and August would be another batch of two months,
for which security amount would be utilized for the purpose of rentals. It
is averred that out of the security deposit of Rs. 36 lakhs, the rent for
only four months i.e. Rs.30,80,000 (Rs. 7,70,000 x 4) has been adjusted.
Rest of the amount is still lying with the plaintiff.
7. The defendants had also referred to quid-pro quo arrangement
between plaintiff and the defendant relating to the use and occupation of
the hotel by its guests and adjustments against monthly rent payable. As
aforesaid, the plaintiff, every now and then made its guests occupy the
rooms of the hotel, who will leave without even paying basic tariff for
use and occupation. Not a single penny for consumables was paid. As
this according to the defendants, was on a constant rise, the defendants
protested against it somewhere in May 2011 upon which it was agreed
between the plaintiff and the defendants that the plaintiff would use the
defendant's guest house for its guests and the expenses incurred towards
the stay of plaintiff's guests would be set off towards the part/full
monthly rent of Rs.7 lakhs payable by the defendants. According to the
defendants, in their written statement, they have given a chart of true
position of the accounts, which is reproduced as under:-
"II. True position of accounts:
a. In view of the facts mentioned hereinabove, the true position
f payments made by the defendants is as under:-
Month Rent agreed TDS Rent/set off
Sep-09 700000 158620 627900
Oct-09 700000 72100 627900
Nov-09 700000 72100 627900
Dec-09 700000 72100 627900
Jan-10 700000 72100 627900
Feb-10 700000 72100 627900
Mar-10 700000 72100 627900
Apr-10 700000 72100 627900
May-10 700000 72100 627900
Jun-10 700000 72100 627900
Jul-10 700000 72100 627900
Aug-10 700000 72100 627900
Sep-10 700000 72100 530135
Oct-10 700000 72100 627900
Nov-10 700000 72100 627900
Dec-10 700000 72100 627900
Jan-11 700000 72100 627900
Feb-11 700000 72100 627900
Mar-11 700000 72100 627900
Apr-11 700000 72100 627900
May-11 700000 72100 The plaintiff's guests
started occupying the
rooms of the hotel without
paying any tariff for use
and occupation. On a
single penny for
consumables was also paid.
As this saga of loot was on
a constant rise, the
defendant protested against
it somewhere in May 2011
upon which it was agreed
between the plaintiff and
the defendant that the
plaintiff would use the
defendant's hotel for its
guests and the expenses
incurred towards the stay
of plaintiff's guests would
be set off towards the
monthly rent payable by the
defendant during the
second tenure of the lease.
(Quid pro quo
arrangement)
Jun-11 700000 70000 627900
Jul-11 700000 70000 The quid pro quo
arrangement as agreed
between the parties
Aug-11 700000 70000 The quid pr quo
arrangement as agreed
between the parties
Sep-11 700000 70000 630000
Oct-11 700000 70000 427000
Nov-11 700000 70000 200000 (balance rent of
October, 2011)
Dec-11 700000 70000 126000 (combined rent of
Nov. 2011 and December,
2011)
Jan-12 700000 70000 The quid pro quo
arrangement as agreed
between the parties
Feb-12 700000 70000 630000
Mar-12 700000 70000 630000
Apr-12 700000 70000 630000
May-12 700000 70000 The quit pro quo
arrangement as agreed
between the parties
Jun-12 700000 70000 630000
Jul-12 700000 70000 The quid pro quo
arrangement as agreed
between the parties
Aug-12 700000 70000 630000
Sep-12 700000 70000 The quid pro quo
arrangement as agreed
between the parties
Oct-12 700000 70000 630000
Nov-12 700000 70000 Paid in December, 2012
Dec-12 770000 77000 1323000
Jan-13 770000 77000 The quid pro quo
arrangement as agreed
between the parties
Feb-13 770000 77000 693000
Mar-13 770000 77000 693000
Apr-13 770000 77000 The rent was adjusted
against the security deposit
May-13 770000 77000 The rent was adjusted
against the security deposit
Jun-13 770000 77000 693000
Jul-13 770000 77000 The rent was adjusted
against the security deposit
Aug-13 770000 77000 The rent was adjusted
against the security deposit
b. As evident from the above payments, in the month of May,
2011, no rent was paid by the Defendant No. 2 to Plaintiff, in view
of the fact that the Plaintiff had taken services of boarding and
lodging of its clients, with the defendants the bill show generated
was mutually set off between the parties.
c. By quid pro quo arrangement, Mr. G S Jolly started acting
like the owner of the guest house and has several times booked the
room and party halls for his personal parties. It was agreed that
the expenses of these parties would be set off in lieu of the rents,
however, several times, Mr G.S.JoIIy used to cancel the bookings
at last minute. One of these incidents took place in October, 2011
when rooms were booked but cancelled at the last minute. The
Defendant Company initially adjusted the rent, however, when the
booking was cancelled by Mr. G.S.JoIIy, the Defendant Company
paid the balance amount in the month of November" Though as
per the guest house's policy, initially the Defendant Company
deducted the booking charges @ Rs. 2,00,000, but later on when
the Plaintiff Company did not agree to it, the Defendant Company
ended up paying the balance amount of Rs.2,00,000/- to the
Plaintiff Company. The last minute cancellation by Mr. G.S.Jolly
resulted into huge revenue losses to the Defendant Company.
d. Similar position happened with regard to the period of July
and August, 2011. Thereafter, the payment was made in
September, 2011.
e. In October, 2011, the bill so generated upon the plaintiff
and the said sum was again set of and balance amount of Rs.
4,27,000/- was paid and accepted by the plaintiff as rent.
Position in regard to January, September, 2012 and
January, 2013 is similar to the earlier months.
III. Recovery of arrears of rent: As far as arrears of rent are
concerned, the Plaintiff has sought the following arrears in rent:
A. From the period commencing from September 2010-
October, 2011 @ Rs 2 lacs /month.
The original Lease Deed dated 26.12.2008 so far as the monthly
lease amount of Rs. 9 Lacs is considered was partially altered by the
free consent of both and a revised monthly lease of Rs.7 lacs was agreed
upon to be effective for the entire duration of the original lease.
B. From the period commencing from November, 20ll to April, 2Ol2:
@ Rs 9 Lacs * 15% increment / month = Rs 10.35 Lacs/month.
It is relevant to mention here that as the rent was modified to Rs. 7
lacs, the clause I (ii) was also altered and it was agreed that instead of
15% increment, 10% of rent would be increased. The same is
corroborated with the fact that the Plaintiff since December, 2011, the
Plaintiff has accepted the rent of Rs. 693000 (Rs. 770000- TDS from the
Defendants.
C. From the period commencing May 2012-January, 2013: @ Rs.
9 lacs*15% increment/month=Rs.10.35 lacs/month
It is relevant to mention here that as the rent was modified to Rs. 7 lacs,
the clause I (ii) was also altered and it was agreed that instead of 15%
increment, 10% of rent would be increased. The same is corroborated
with the fact that the Plaintiff since December, 2011, the Plaintiff has
accepted the rent of Rs. 693000 (Rs. 770000- TDS from the Defendants.
Suffice to state, that the defendants had made a counter claim CC
No. 27/2014 wherein the defendants had made the following prayers:-
"PRAYER TO COUNTER CLAIM
In view of the above, the Defendants Company prefers a
counter claim of Rs. 1 Crore against the Plaintiff in the
nature of damages towards mental harassment and
agony and losses caused to the Defendants and
Defendant Company's officials.
In view of the above mentioned grounds, the present suit
deserves to be dismissed with exemplary costs and the
counter claim preferred by the Defendant should be
allowed."
8. In the replication, the plaintiff has denied contents of the written
statement. Admitting the execution of the lease deed dated December
26, 2008, for a period of three years, the plaintiff denied the fact that the
defendants had handed over 24 post dated cheques to the plaintiff. The
defendants had given complete authority to the plaintiff to fill in the
dates for monthly rental as and when the same became due, but just after
the completion of one year from the date of the lease period, the
defendant No.2 on October 10, 2009, being the representative of
defendant No.l company, approached the plaintiffs director Sh. G.S.
Jolly and requested that due to recession and other financial difficulties
faced by defendants, requested the plaintiff to reduce the monthly rental
from Rs.9 lakhs per month to Rs.7 lakhs per month for a period of one
year beginning on September 01, 2009 till August 31, 2010. The
plaintiff, considering the request of the defendants, reduced the rent for a
period of one year with effect from September 01, 2009 till August 31,
2010. The defendants taking advantage of the good gesture of the
plaintiff continued to pay rent of Rs. 7 lakhs per month even after the
expiry of the above mentioned period on August, 31, 2010. Plaintiff
thereby wrote a letter dated December 08, 2011 notifying the defendants
that the rent will be restored back to Rs. 9 lakhs per month with effect
from September 01, 2010. The said letter was duly received by the
defendants on December 09, 2011 and was endorsed with their company
seal and signatures. It is plaintiff's case in the replication that a legal
notice dated February 04, 2013 was sent to the defendants for arrears of
rent as also the possession of the property. The defendants contacted the
plaintiff and held various meetings with the plaintiff and during the said
meetings asked for return of the cheques lying with them stating that
dates will be filled by them. The officers of the defendants thereafter
filled the dates on the cheques and along with these cheques also issued
three other cheques towards part payment. Those three cheques drawn on
United Bank of India when presented were dishonoured. The plaintiff
has also denied the plea of quid-pro quo arrangement between the
plaintiff and the defendant and finally it is the case of the plaintiff that
the total arrears of rent is Rs.1,89,87,909/- and the suit be decree for that
amount.
9. Mr. Kirti Uppal, learned Senior Counsel appearing for the plaintiff
has drawn my attention to the provisions of lease deed to highlight that
the rent of the property in question was Rs.9 lakhs per month. He would
concede to the fact that for a period of one year, the rent was reduced
from Rs.9 lakhs to Rs.7 lakhs. He also states, that after a period of one
year, the rent was to be reverted to the original amount of Rs.9 lakhs.
According to him, it is a settled position of law, a rent, which has been
settled by way of a registered lease deed, could not have been reduced by
an oral understanding or an unregistered document. He would deny the
quid-pro quo arrangement between the plaintiff and the defendants. He
states, that it is a plea now advanced by the defendants to avoid the
liability of paying arrears of rent. He would state, the defendants having
disregarded the order of this Court for deposit of the arrears of rent by
December 3, 2013, would itself is enough for this Court to allow this
application under Order XV-A of Code of Civil Procedure, 1908 and
strike off the defence of the defendants and grant a decree in favour of
the plaintiff. He would rely upon the judgments of this Court in Pyare
Lal Taheem vs. Mohan Murti Shandilya 2013 (202) DLT 365; Mohan
Murti Shandilya vs. Pyare Lal Taheem and another RFA (OS) 15/2014
decided on February 7, 2014; Prem Lata vs. Raghubir Rai 2014(141)
DRJ 195; Raghubir Rai vs. Prem Lata 2014(211) DLT 565 DB in
support of his prayer of striking off the defence of the defendants and
thereafter, pass a decree for arrears of rent in terms of order XV-A CPC.
10. On the other hand, Mr. Mohit Chaudhary, learned counsel
appearing for the defendants would vehemently opposes the
maintainability of the application under Order XV-A CPC on the ground
that the defendants have already handed over the possession of the
premises to the plaintiff. Even otherwise, it is his submission that the
arrears of rent are not payable by the defendants. According to him, it is
the defendants, who have to recover from the plaintiff. He has drawn my
attention to the written statement filed by the defendants in support of his
plea, wherein the defendants have taken a plea of quid-pro quo
arrangement between the parties. He would also justify the reduction of
rent from Rs.9 lakhs to Rs.7 lakhs per month. He would state, that the
present application needs to be rejected.
11. Having heard the learned counsel for the parties and considering
the pleadings and the documents on record and noting the order passed
by this Court on July 12, 2013, there is no dispute to the fact that this
Court had directed the defendants to deposit in this Court by the next
date of hearing, the up to date arrears of rent in respect of the suit
premises, and the fact that the plaintiff was in occupation of the suit
premises, the first requirement of Order XVA Rule 2 CPC has been met.
The justification of the defendants as noted from the pleadings is
primarily the following:
(i) quid pro quo arrangement
(ii) reduction of rent from Rs.9 lakhs to Rs.7 lakhs
(iii) increase in rent was reduced from 15% to 10%.
According to the defendants, it is in view of the above, the defendants
were paying an amount of Rs.6,93,000/- after deducting the TDS from
7,70,000/- and adjusted, the rent against, quid pro quo arrangement. In
other words, nothing is due as arrears of rent. It is clear from the
registered lease deed dated December 26, 2008 that the total rent for the
premises was Rs.9 lakhs per month. It is the plaintiff's case that the rent
was reduced for a period of one year to Rs.7 lakhs. The plaintiff has
taken a specific plea that the plaintiff wrote a letter dated December 8,
2011 informing the defendants that the rent will be restored back to Rs.9
lakhs per month with effect from September 1, 2010. No reply was
given to the legal notice. In other words, the same remains,
uncontroverted, despite receipt of the same. There is also no dispute,
that in terms of the original lease deed, the rent was Rs.9 lakhs and was
to be increased @15% after the initial three years and further by another
15% for a further period of three years. These terms were settled
through a registered deed. The learned counsel for defendants has not
pointed out any document with regard to quid pro quo arrangement;
reduction in rent from Rs.9 lakhs to Rs.7 lakhs even after one year w.e.f.
October 1, 2010, i.e. for the lease period, so also the reduction in
increase of rent from 15% to 10% after 2011. The plaintiff has also
referred to the issuance of the earlier cheques by filling the dates and
also three other cheques drawn on United Bank of India towards part
payments and the order dated July 12, 2013, remained unchallenged by
the defendants and the prayer made in the counter claim is not for
recovery but for damages, for mental harassment and in the plaint, the
arrears of rent has been sought on the following details:-
Payment what defendants were supposed to make.
(i) Rs.9 lacs for 08 months from
1/1/2009-31/08/2009 total = Rs.72,00,000/-
(ii) Rs.7 lacs for 12 months from
1/9/2009-31/8/2010 total = Rs.84,00,000/-
(iii) Rs.9 lacs for 14 months from
1/9/2010-31/10/2011 total = Rs.1,26,00,000/-
(iv) Rs.10.35 lacs include 15%
Increase in rent after expiry of
First 3 years for 12 months from
1/11/2011-31/10/2012, total = Rs.1,24,20,000/-
(v) Rs.10.35 lacs for 3 months from
1/11/2012-31/01/2013 total = Rs.31,05,000/-
TOTAL = Rs.4,37,25,000/-
TOTAL TO BE PAID AS PER THE LEASE DEED RS.4,37,25,000/-
(Four Crore Thirty Seven Lacs Twenty Five Thousand only)
The actual payment made by defendants:
a) 9 Lacs for 8 months from
01/01/2009 to 31/08/2009 = Rs.72,00,000/-
b) 7 Lacs for 33 months from
1/9/2009-30/4/2012 total = Rs.2,31,00,000/-
TOTAL = Rs.3,03,00,000/-
Total Payment Made by defendants till date Rs.3,03,00,000/-
(Three Crore Three Lacs only)
Amount supposed to be paid as per
lease deed till date Rs.4,37,25,000/-
(Less) Amount actually paid by defendants (-) Rs.3,03,00,000/-
The amount still due against the defendants Rs.1,34,25,000/-
12. Pursuant to issuance of legal notice dated 4th February, 2013
which was duly received by the Defendants. The Defendants made part
payments towards arrears of rent which is as under-:
Cheque Details Amount
410263 dated 15 / 02/ 2013 Rs.6,93,000/-
410278 dated 11, / 03 / 2013 Rs.5,00,000/-
410279 dated 13 / 03 / 2013 Rs.1,93,000/-
389563 dated 03 / 06 / 2013 Rs.6,93,000/-
All drawn on United Bank of India.
The above mentioned payments were made by the Defendants which
were honoured. In addition to the above mentioned part payments, the
Defendants also issued 12 Post Dated Cheques in favour of the Plaintiff
on account of part payment, most of the cheques have been presented by
the Plaintiff through its banker and have been returned unpaid with
remarks 'FUNDS INSUFFICIENT". Such has been the conduct of the
Defendants which in itself shows that the Defendants intend to continue
holding the suit property illegally. Therefore the arrears which were
pending against the Defendants after the above part payment are as
under and further Defendants are liable to pay further rent / arrears:-
Rs. 1,34,25,000 / -
Less amounts received Rs. 20,79,000/-
Amount due Rs. 1,13,46,000/ -
12. There is no manner of doubt that the defendant has failed to
comply with the order passed by this Court on the said date requiring
him to pay the arrears of rent.
13. Insofar as the first plea, advanced by Mr. Chaudhary, that the
defendants having given the possession of the suit premises to the
plaintiff, the application under Order XVA Rule 2 CPC would not be
maintainable is concerned, the same is without any merit and in similar
facts, this Court had allowed the application filed by the plaintiff under
Order XVA Rule 2 CPC wherein, the defendants in the said case, had
vacated the premises in question. In other words, vacation of premises
in question would have no bearing on the application under Order XVA
Rule 2 CPC. Suffice to state, in Raghubir Rai (supra), the Division
Bench of this Court had considered the purpose behind inserting Order
XVA to the statute book. In Pyara Lal Teheem & Anr. (supra), this
Court in para 19 has held as under:-
"19. Order 15A of the CPC, being a Delhi amendment, is unambiguous
in its terms that where a defendant who is required to deposit rent as per
the directions of Court, fails to do so his defence is liable to be struck off.
It gives statutory expression to the law earlier explained in several
decisions. In M/s Jwala Pershad Ashok Kumar Chopra HUF v. M/s
Nath Tubes Pvt. Ltd., AIR 1994 Del 317, the Court held that it can, in a
case of this kind, in fair exercise of its judicial discretion, order for
deposit of money pending the decision of the suit. In Erum Travels v.
Kanwar Rani, 69 (1997) DLT 567, the Court considered the
permissibility of striking off the defence for non-payment of
rent/damages under Section 151 and Order XXXIX Rule 10 CPC. The
Court held "The combined effect of Order XII Rule 1 and Order XXXIX
Rule 10 of the Code of Civil Procedure is that a Court can, in a case of
this kind, in fair exercise of its judicial discretion order for deposit of
money pending decision of a suit. Surely, the provisions of Section 151
of the Code of Civil Procedure can be invited in aid to cover all such
cases as are analogous to these principles. "
14. As noted above, the direction of the Court was only to deposit the
money in the Court pending decision of a suit, the defendants having
failed to deposit the amount as directed and it is not the case of the
defendants that they are ready to deposit the arrears of rent, the present
application needs to be allowed and the defence of the defendants is
struck off. Having said that, the consequence being, on the analogy of
Order 8 Rule 10, the prayer, made in the plaint need to be granted. The
prayer at (a) para 20 does not survive as possession has been handed
back to the plaintiff of the suit premises.
CS(OS) 1345/2013
A decree is passed in favour of the plaintiffs against the
defendants for arrears of rent of Rs.1,13,46,000/- as on January 31, 2013,
with further rent of Rs.10,35,000/- per month w.e.f. February 1, 2013 till
September 9, 2013, after adjustment of the security deposit of
Rs.36,00,000/- against the defendants. The said amount shall be paid by
the defendants to the plaintiff within 8 weeks from today failing which, it
would carry simple interest of 9% per annum till the actual date of
payment. The suit is decreed in the above terms with no order as to
costs. The connected application being IA No. 10734/2013 (under Order
39 Rules 1 & 2 CPC) is disposed of as infructuous.
IA No. 24206/2014 (filed by defendant Nos. 1 & 2)
In view of the order passed in the suit, the present application is
dismissed as infructuous.
Counter Claim No.27/2014 & CCP (O) Nos. 91/2013,101/2013
List on September 20, 2016.
(V.KAMESWAR RAO)
JUDGE
MARCH 23, 2016/ak
