M/S Torque Bikes Pvt. Ltd. vs Harsha Gupta
2017 Latest Caselaw 2621 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No. 21/2017 & CRP No. 56/2017

%                                                       24th May, 2017

+     FAO No. 21/2017

M/S TORQUE BIKES PVT. LTD.                                 ..... Appellant
                  Through:               Mr. Ashin Mittal, Advocate.
                           versus

HARSHA GUPTA                                            ..... Respondent

                           Through:      Mr. Vivek Sood, Sr. Adv. with
                                         Mr.
+     CRP No. 56/2017

M/S TORQUE BIKES PVT. LTD.                                 ..... Appellant
                  Through:               Mr. Ashin mittal, Advocate.
                           versus

HARSHA GUPTA                                            ..... Respondent
                           Through:      Mr. Vivek Sood, Sr. Adv. with
                                         Mr.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?           YES


VALMIKI J. MEHTA, J (ORAL)

FAO No. 21/2017

1. This first appeal under Order XLIII Rule 1 (r) of the Code

of Civil Procedure, 1908 (CPC) is filed by the

appellant/defendant/tenant impugning the order of the trial court dated

27.10.2016 by which the trial court in exercise of powers under Order

XXXIX Rule 10 read with Order XVA CPC (as applicable to Delhi)

has directed the appellant/defendant/tenant to pay the admitted rate of

rent for the period for which rent has admittedly not been paid. The

rent has not been paid with effect from 1.3.2016 and the admitted rate

of rent is Rs.1,84,500/-. CPC was amended with respect to suits filed

in Delhi by the landlords for possession against tenants and in which

suit for payment of interim rent an application can be filed under Order

XVA CPC. This provision of Order XVA CPC reads as under:-

ORDER XVA STRIKING OFF DEFENCE IN A SUIT BY A LESSOR (A) "In any suit by a owner/lessor for eviction of an unauthorized occupant/lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the court may direct on account of arrears upto the date of the order (within such time as the court may fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the court may direct. The defendant shall continue to deposit such amount till the decision of the suit unless otherwise directed.

In the event of any default in making the deposit as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off the defence.

(2) Before passing an order for striking off the defence, the court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence.

(3) The amount deposited under this rule shall be paid to the plaintiff owner/lessor or his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination."

2. The aforesaid provision of Order XVA CPC was

specifically inserted by the legislature inspite of there existing the

provision of Order XXXIX Rule 10 CPC in order to ensure that a

tenant did not stay in the tenanted premises during the pendency of the

suit filed by the landlord for possession without payment of rent.

3.           In     the    present     case       it   is   undisputed         that

appellant/defendant          became           a        tenant      of          the

respondent/landlord/plaintiff in terms of the lease deed dated

26.5.2015. The total area let out was an area of 4500 sq. feet. The area

which has been let out is situated in part of the property bearing

Municipal No. 30, Najafgarh Road, Shivaji Marg, New Delhi.

Appellant/defendant under this lease deed admittedly entered upon the

suit premises as a tenant and started using the same. The

appellant/defendant, however, failed to pay the rent with effect from 1 st

March, 2016. The subject suit for possession, arrears of rent and

damages was hence filed by the respondent/plaintiff by terminating the

tenancy by notice dated 15.4.2016 on account of non-payment of

admitted rent by the appellant/defendant. It is in this subject suit that

the subject application for payment of pendente lite rent was filed and

which has been allowed by the impugned order dated 27.10.2016 and

which order reads as under:-

"27.10.2016 Present: Sh. Sachin Mishra and Sh. Bharat Deepak, counsel for the plaintiff. Sh. H.S.Arora, counsel for the defendant/counter-claim. Previous cost of Rs.10,000/- paid by the defendants. The documents in compliance of the previous order are supplied to the counsel for the plaintiff against receipt.

Arguments on the application under order 39 Rule 10 CPC heard.

Record perused.

The plaintiff has filed the present suit for possession, arrears of rent, damages/mesne profits and injunction against the defendant. It is submitted that the plaintiff is owner and landlord of the suit property which was let out to the defendant vide lease deed dated 26.05.2015. It is stated that the defendant has fails to pay the rent w.e.f 16.01.2016. It is stated that the legal notice was served upon the defendant but despite service of the legal notice, the defendant has failed to make the payment. Hence, this suit.

The defendant after service of the summons filed the written statement. In the written statement existence of the relationship of landlord and tenant between the parties is admitted. The execution of the lease deed dated 26.05.2015 is also admitted. It is stated that the total rent of the suit property is Rs. 1,84,500/- per month. It is stated that the defendant was constraint to suspend the payment of entire rent w.e.f 01.03.2016. The plaintiff by way of the application under order 39 Rule 10 CPC is praying for issuance of the directions to the defendants to pay the admitted rent. The defendant has admitted the existence of the relationship of landlord and tenant between the parties. The rate of rent of the suit premises @ Rs.1,84,500/- per month is also admitted by the defendant. The execution of the registered lease deed dated 26.05.2015 is also admitted by the defendant. The defendant has raised the defence that the plaintiff with ulterior motive to hide his own illegal acts has filed the present suit as the entire tenanted premises have been rendered useless. It is submitted that the defendant is not able to use the suit premises due to the inaction/malafide action of the plaintiff, therefore, the defendant is entitled for suspension/withheld of the payment of the rent.

The counsel for the defendant has relied upon five judgments I support of his contentions. The judgment mentioned at Sr. no. 1 and 2 are related to the provisions of Delhi Rent Control Act, therefore, the same are not applicable to the present case.

The ratio laid down in the judgment mentioned at Sr. no.3,4 and 5 are not applicable to the facts of the present case.

The perusal of the lease deed dated 26.05.2015 clearly reveals that there is no covenant for suspension of rent. The parties has not agreed for suspension of rent in case of any such even as alleged by defendant. Keeping in view of the admission of registered lease deed and admission of the rate of rent and relationship of landlord and tenant between the parties, the defendant is directed to deposit in the court/or to pay the admitted rent of Rs.1,84,500/- per month w.e.f. 01st March 2016 upto date within 30 days from today. The defendant is directed to continue to deposit or pay the admitted rent on or before 10th day of every month.

This order is passed without prejudice to the contentions raised by the parties to the suit.

Put up for filing of written statement to the counter claim and replication to the plaint for 17.12.2016."

4. It is, therefore, seen that the factum of relationship of

landlord and tenant is admitted, rate of rent is admitted and the period

of non-payment of rent is admitted. In view of the provision of order

XVA CPC, the present was hence a fit case where the court below has

rightly exercised its power directing the appellant/defendant to pay the

admitted rate of rent for the period for which the rent was admittedly

not paid.

5. Counsel for the appellant/defendant argued that the

appellant/defendant was entitled to suspension of rent and that the

appellant/defendant has in fact filed a counter-claim. It is argued that

the suit premises were unusable on account of construction being made

in an another part of the property and also that the roof of the part of

the tenanted premises in Hall no. 1 had fallen down making the

tenanted premises unusable and hence the appellant/defendant was

entitled to invoke the doctrine of suspension of rent and hence there

was disentitlement of the respondent/plaintiff for payment of rent.

Reliance is placed upon the photographs which are filed in this Court

to support the arguments urged on behalf of the appellant/defendant.

6. I have gone through the photographs. The so called

„falling down of the roof‟ is really a bizarre argument to say the least.

Roof definitely has not fallen down. The photographs only show that

there is a space of about one sq. feet in one iron sheet in the roof.

Surely therefore such minor damage in one small portion on a roof

which is purely made of iron sheet cannot amount to „falling down of

the roof‟. It is noted by this Court that as per Clause of Repair and

Maintenance at pages 9 and 10 of the lease deed, the repair and

maintenance of the tenanted premises during the currency of the lease

has to be carried out by the appellant/defendant. Therefore, though

counsel for the appellant/defendant sought to take benefit of the first

three lines at page 10 of the lease deed, appellant/defendant cannot use

these three lines in the lease deed to claim that the repairing of the roof

even during the tenancy period at all times would be of the

respondent/plaintiff, inasmuch as, these three lines is only with

reference to the initial repairing of the roof at the time lease was taken.

Therefore, the defence of the rent not being paid with respect to the

area of 4500 sq. feet by showing of one photograph wherein there is

damage to one very very small portion/part of the roof containing an

iron sheet it cannot thereby be alleged that the roof has fallen down.

This argument is a totally a frivolous reason for non-payment of rent

and is therefore rejected.

7. The second defence urged on behalf of the

appellant/defendant invoking the doctrine of suspension of rent is by

placing reliance upon certain photographs which show that at certain

point of time in the year 2016, there were certain debris and jhuggis

which were existing in portion of the premises 30, Nazafgarh Road,

Shivaji Marg, New Delhi and part of which premises is under the

tenancy of the appellant/defendant. In other words, the entire premises

30, Najafgarh Road, Shivaji Marg, New Delhi is a very large plot of

land and out of this plot of land only a part of the constructed area is let

out to the appellant/defendant. The total land area of the

respondent/landlord is 1.66 acres with one acre being 4840 sq. yds.

Besides the appellant/defendant there are about two other tenants of the

respondent/landlord in the plot in question and who continue to use

their tenanted premises on payment of rent. One part of the property

30, Nazafgarh Road, Shivaji Marg, New Delhi belongs to one co-

owner and it is that other co-owner who for a period of few months in

the year 2015-16 carried out some construction work as a result of

which there were some temporary disturbances. Disturbance and that

too a temporary disturbance is not a prevention for the

appellant/defendant from using the tenanted premises when various

other tenants were also existing in the premises, using their tenanted

premises, and paying the rent to the respondent/landlord.

8. I may finally observe that the photographs filed in this

case on behalf of the appellant/defendant are only convenient

photographs for a very small portion of entire property 30, Nazafgarh

Road, Shivaji Marg, New Delhi and that too with respect to a limited

period in the year 2015-16 and thus such photographs showing a

limited and convenient position cannot be interpreted as a complete

blockage to the appellant/defendant from using the tenanted premises

for the entire lease period. Once a minor disturbance or minor blockage

has not prevented other tenants from using their portion and paying

rent to the respondent/landlord, then this defence of the

appellant/defendant of it being prevented from using the tenanted

premises is clearly therefore farfetched and in fact a dishonest stand

and is thus rejected.

9. Learned counsel for the respondent/plaintiff argued that

the appellant/defendant is habitual of taking premises on rent and

thereafter it stops paying the rent to the landlords and that various

litigations are thus pending of various other landlords against the

appellant/defendant, however, so far as these proceedings are

concerned, this aspect being not relevant is not being touched upon.

10. In view of the above discussion, it is found that the

present appeal is an abuse of the process of law. The present appeal is

filed by a tenant who from March 2016 is not paying the huge admitted

rent of Rs. 1,84,500/- per month. Appellant/defendant wants to

continue in the tenanted premises without paying of rent and which is

unacceptable especially after amendment of CPC by adding Order

XVA CPC so far as Delhi is concerned.

11. This appeal is therefore dismissed with actual costs.

Actual costs will be the cost not only of the present appeal, but also the

costs incurred by the respondent/plaintiff for pursuing the proceedings

under Order XXXIX Rule 10 CPC read with Order XVA CPC in the

trial court. Respondent/plaintiff will file an affidavit and certificate of

costs including the fees of its lawyers with respect to these proceedings

and the subject proceedings in the trial court within a period of four

weeks from today. Costs will be paid by the appellant/defendant to the

respondent/landlord/plaintiff within a period of four weeks thereafter.

CRP No. 56/2017

12. This civil revision petition under Section 115 CPC

impugns the order dated 16.1.2017 by which the defence of the

appellant/defendant was struck of on account of non-payment of rent

directed to be paid under Order XVA CPC by the earlier order of the

trial court dated 27.10.2016.

13. Since there is admitted non-compliance of the order dated

27.10.2016 and I have already dismissed the FAO No. 21/2017

upholding the order dated 27.10.2016, accordingly, there is no merit in

this revision petition and the same is therefore dismissed with actual

costs. The respondent/landlord will file the certificate of costs with an

affidavit with respect to these proceedings as also the subject

proceedings in the court below with respect to striking off defence

within a period of four weeks and costs will be paid by the

appellant/defendant to the respondent/landlord/plaintiff within four

weeks thereafter.

MAY 24, 2017/ib/AK                           VALMIKI J. MEHTA, J