Delhi High Court
Friends Motel Pvt. Ltd. Through ... vs Supertracdk Hotels Pvt. Ltd. ... on 14 September, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 14th September, 2016
+ I.A. No.5844/2016 in OMP (I) No. 643/2015
FRIENDS MOTEL PVT. LTD. THROUGH ITS DIRECTOR
MR. ARUN DIWEDI ..... Petitioner
Through Mr.Sandeep Sethi, Sr. Adv. with
Mr.S.P. Sinha and Mr.Shahid
Anwar, Advs.
versus
SUPERTRACK HOTELS PVT. LTD THROUGH ITS DIRECTOR MR.
SUNIL GUPTA ..... Respondent
Through Mr.Sunil Gupta in person.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By order dated 29th April, 2016 the present petition was
disposed of with the following directions:
"36. Therefore, for the aforementioned reasons, the
present petition is disposed of with the direction that
the respondent is directed to pay a sum of
Rs.13,04,490/- outstanding amount of agreed rent as
per lease deed from November, 2015 till 30th April,
2016, within two weeks from today to the petitioner,
with an undertaking to be filed by way of affidavit
within the same period of time that it would continue to
pay the agreed rent regularly without any failure. In
failure to comply the said direction, the respondent
shall hand over the vacant possession to the petitioner
after the expiry of two weeks.
37. As far as the other claims of the petitioner, i.e.
damages at Rs.2 lac per day are concerned, the same
dispute may be raised before the Arbitral Tribunal.
Similarly, the respondent is also allowed to raise its
claim as alleged in the reply including the amount spent
by him on the premises, the said claims of the parties
shall be decided as per its own merits by the Arbitral
Tribunal."
2. The abovementioned application has been filed by the
petitioner for modification/clarification of the judgment dated 29th
April, 2016 passed by this Court.
3. It is stated in the application that in the last line of para 3(b)
of the said judgment, the name "Friends Motel Pvt. Ltd." has been
mentioned whereas it should have been "Supertrack Hotels Pvt. Ltd."
4. It is further stated that in para 27 of the said judgment it has
been mentioned that the named Arbitrator of the respondent was
not acceptable to the petitioner and intimation in this regard was
given on 11th December, 2015.
5. It is also stated in the application that in para 34 of the said
judgment it has been mentioned that "admittedly'' the Director of
the respondent was present in the Court on 21st March, 2016 as well
as on 7th April, 2016 when the statement was made that it shall
handover the vacant physical possession of the suit property subject
to no dues certificate and full and final receipt issued by the
petitioner and withdrawal of matters under Section 138 of Negotiable
Instrument Act.
6. It is stated in the application that in para 36 of the said
judgment, due to typographical error the figure of Rs.13,04,490/-
was mentioned instead of the figure of Rs.1,30,44,960/- as
outstanding amount of agreed rent as per lease deed dated 27 th
March, 2014.
7. Admittedly, it is recorded in the order dated 17th May, 2016
that the possession of the suit property was handed over to the
petitioner which was confirmed by the counsel for the petitioner but
he submitted that the possession was taken under protest.
8. Notice of the application was issued to the learned counsel for
the respondent who upon instruction stated that the respondent had
no objection if the said errors are corrected. The said typographical
errors were corrected accordingly. Counsel for the petitioner
pressed for other reliefs as sought in the abovementioned
application.
9. When the application was taken up for disposal on 12th July,
2016, the counsel for the respondent upon instructions took the date
for settlement. The application was adjourned for 1st August, 2016.
On the said date, again the respondent was agreeable to resolve the
disputes. However, on the next date i.e. 10th August, 2016, the
Director of the respondent-Company Mr.Sunil Gupta appeared in
person and sought time to file the reply. There was no response at
all on his behalf for settlement.
10. On 29th August, 2016 both the parties made their submissions.
The respondent at present wishes to raise all pleas which were
raised earlier at the time of hearing when the petition was disposed
of. The said pleas cannot be allowed to be re-agitated again.
11. Counsel for the petitioner submitted that it was not the
petitioner who did not accept the named Arbitrator of the
respondent. As per letter dated 11th December, 2015, it was the
respondent himself who intimated the petitioner about the
Arbitrator's refusal to act as an Arbitrator and also informed that he
was looking for replacement of the named Arbitrator. The said
clarification is taken on record.
12. Counsel appearing on behalf of the petitioner submits that the
statement of the respondent was recorded in the order dated 21st
March, 2016 which is also quoted in para 33 of the said judgment.
Counsel states that on the said date there was no conditional
undertaking that the vacation of the suit premises was subject to the
condition of full and final settlement between the parties vis-à-vis
pending accounts/ withdrawal of criminal complaint filed under
Section 138 of the Negotiable Instruments Act. Counsel for the
petitioner argued that it was raised/stated only after the respondent
filed an application for modification of order dated 21st March, 2016
which was an afterthought.
13. Counsel appearing on behalf of the petitioner submits that the
said amount of Rs.1,30,44,960/- was till the month of September,
2015 as the lease was terminated with effect from 1st October,
2015. He submits that the respondent should have been directed to
pay the outstanding agreed rent for the period from October, 2015
to 30th April, 2016 @ Rs.18,42,480/- per month which is after
adjusting the service tax and TDS and only thereafter, the
respondent had to file an undertaking for payment of agreed rent
regularly without any failure. It was also submitted on behalf of the
petitioner that suit property was handed over to the petitioner on
16th May, 2016 i.e. after passing of the order dated 29th April, 2016.
The said fact has not been denied by the respondent. As far as non-
payment of agreed rent for the period from 1st October, 2015 to 16th
May, 2016 as per lease deed which was terminated with effect from
30th September, 2015 is concerned, the same has not been paid.
Even no document is produced in support thereof. There is no
specific denial on the part of the respondent.
14. Counsel for the petitioner submits that in addition to above,
the respondent was liable to pay electricity bill dues of
Rs.18,00,000/- and water bill dues of Rs.15,500/-. The electrictiy
connection of the suit premises was disconnected by the NDMC due
to non-payment of the dues. The petitioner made the payment for
getting the connection activated. Therefore, the respondent is liable
to pay the same.
15. As far as damages @ Rs.2,00,000/- per day are concerned, as
already stated, it is a disputed amount. If the disputes are not
resolved, the said claim of the petitioner would be adjudicated by
the Arbitral Tribunal. Without prejudice, the petitioner had offered
that in case the respondent is agreeable to pay actual amount of
outstanding amount of rent towards the period 1st October, 2015 till
16th May, 2016 at the same rate as per the lease deed, the
petitioner may not press the said claim.
16. The said offer was considered by the respondent from time to
time but on 22nd August, 2016, he made the statement that at the
best the respondent is only able to pay Rs.25 lac to 35 lac as full and
final settlement amount towards amount due as he had a huge loss
in his business and is not in a position to pay the amount demanded
by the petitioner. He has also disputed the figure of electricity bill
and water bill. The petitioner is not inclined to accept the proposal
given by the petitioner mainly on the reason that it has to pay the
said amount to the bank as installments which fact is known to the
respondent. As there is no consensus between the parties, the
application is disposed of with the direction to the respondent to pay
the balance admitted amount due after adjustment of security
amount.
The learned counsel for the petitioner has provided the details
of the amount due from the respondent. The same is mentioned as
under:
i. Net rental between 1st April, 2014 to 16th May, 2016 -
Rs.4,73,81,220/-.
ii. Total payment by the respondent including the security deposit
in the said period - Rs.3,43,09,760/-.
iii. Net rental due (i-ii) = Rs.1,30,71,460/-
17. The respondent is granted liberty to pay the said amount in
five equal monthly installments on 7th day of every calendar month,
subject to furnishing an undertaking that the respondent shall pay
the amount every month positively and in case of any default, the
entire balance amount shall be paid along with interest at the rate of
18% per annum. The first installment shall be paid on 7th October,
2016 and remaining on 7th of every succeeding month. He shall also
give an undertaking to pay the actual electricity and water charges
against the bill to the petitioner within one month from the date of
payment of fifth installment. The petitioner would provide the copies
of the bills to the respondent within two weeks from today. In
failure to comply the above referred directions and in the absence of
undertaking or in failure to pay first installment, the petitioner would
be entitled to recover the entire amount by way of filing of the
execution petition.
I.A. No.10170/2016
18. The cost of Rs.20,000/- was imposed upon the respondent by
order dated 10th August, 2016. The abovementioned application has
been filed by the respondent for the waiver of the said cost. The
prayer is not opposed by the petitioner.
19. In view of the reasons explained in the application, the prayer
is allowed. The cost is waived.
20. The application is accordingly disposed of.
(MANMOHAN SINGH)
JUDGE
SEPTEMBER 14, 2016
