Delhi High Court
M/S H. G. Retail Solutions Pvt. ... vs Joginder Sansanwal on 22 January, 2018
$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22nd January, 2018
+ RFA 490/2013
M/S H. G. RETAIL SOLUTIONS PVT. LTD. ..... Appellant
Through: None.
versus
JOGINDER SANSANWAL ..... Respondent
Through: Mr. Karamveer Singh, Advocate.
(M-9250925395)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
RFA 490/2013
The Respondent/Plaintiff (hereinafter, 'the Plaintiff') filed the suit for
possession and mesne profits against the Appellant/Defendant (hereinafter,
'the Defendant'). The Plaintiff claimed to be the owner of property bearing
No. A124/8, Main Road, Katwaria Sarai village, near Qutub Hotel, New
Delhi 110016, consisting of upper ground floor having super area of 950
square feet (hereinafter, 'suit property').
2. The Plaintiff had let out the suit property to the Defendant for a
monthly rent of Rs.58,500/- . The monthly rent was liable to be paid either
w.e.f. 15th May, 2010, or from the date of the business in the suit property,
whichever was earlier. The Defendant took possession of the suit property
on 1st April, 2010. The Defendant was irregular in payment of the rent and
also did not pay the complete advance amount of Rs. 3 lakhs. The tenancy
was terminated by the Plaintiff on 24th September, 2010 and notice was
issued to the Defendant to hand over vacant and peaceful possession of the
suit property within 15 days from receipt of notice. Due to failure by the
Defendant, the Plaintiff filed a suit for possession, arrears of rent and mesne
profits.
3. Before the Trial court, the case of the Defendant was that the intention
between the parties was to create a tenancy for 9 years, and 45 days was to
be rent free in order to enable the Defendant to occupy the suit property and
start working from the premises. The Defendant also contended that the
Plaintiff had failed to provide the infrastructure as agreed to between the
parties and failed in performing his contractual obligations.
4. The Trial court has passed orders directing the Defendant to clear the
arrears from time to time but finally due to non-compliance of the previous
orders, the defence of the Defendant was struck off on 30th November, 2011.
The Plaintiff led evidence but the Defendant's request for leading evidence
was declined. The parties addressed their respective arguments before the
Trial court and after perusing the entire record and the evidence led, the
Trial court decreed the suit in favour of the Plaintiff in the following terms :
"In view of the findings, given on issue no. 1,2 and 3
above, the plaintiff suit is decreed as follows :
(i) The plaintiff suit for arrears of rent of Rs.87,750/- is
decreed in favour of the plaintiff and against the
defendant,
(ii) the plaintiff suit for mesne profit of
Rs.3,80,250/for the period 16.10.2010 to November
2010, October, 2011 to December 2011 and January
and February 2012 (i.e. total 6 ½ months @
Rs.58,500/per month) is decreed in favour of the
plaintiff and against the defendant,
(iii) the plaintiff suit is further decreed for interest
@ 8% per annum from the date of until realisation on
the amount (i) above and @ 8% per annum from the
date of decree till realisation on amount (ii) above;
and
(iv) entire cost of suit are also allowed, inclusive
of on the suit of possession in favour of plaintiff and
the defendant. However, the plaintiff is required to pay
the deficient court fee and thereafter decree sheet will
be drawn".
5. The present RFA was listed before this court on 23rd October, 2013 on
which date, the delay in filing the appeal was condoned. The execution of
the decree was stayed subject to the entire decretal amount with interest
being deposited by the Defendant. On 7th May, 2014, the decretal amount
was directed to be kept in a Fixed deposit. Since on 9th March, 2015, none
appeared for the Appellant, adverse orders were deferred by the Court. Even
today, despite two pass-overs since morning, none appears for the Appellant.
6. Learned counsel for the Respondent submits that the Appellant has
absconded, as is evident from the orders passed by the learned Metropolitan
Magistrate (Negotiable Instruments Act, Patiala House Courts). The service
report filed in the said proceedings under NI Act shows that Mr. Karan
Tomar was not available at any of his addresses and a proclamation under
Section 82 Cr.P.C. was read over at the place, where he was last residing.
On the strength of these orders and the service report submitted by the
Process Server in the Patiala House Courts, the learned counsel for the
Plaintiff seeks release of the decretal amount, as the Plaintiff is in dire
financial need.
7. The Court has perused the impugned judgment. There is hardly any
dispute on the facts of this case i.e. that the premises was taken on rent by
the Defendant, and even the monthly rent stands admitted. The Trial court
has arrived at a conclusion that the rent for the claimed period has been paid.
The Trial court further held that the Defendant is liable to pay arrears of rent
amounting to Rs.87,750/- per month w.e.f. 1st June, 2010. The decree has
been passed after duly making adjustments for the security amount which
was lying with the Plaintiff. Thus, the Trial court decreed the suit for the
mesne profits for a total of 6½ months at Rs.58,500/- per month from 16th
October, 2010 to November, 2010; October, 2011 to December, 2011; and
January, 2012 to February, 2012. The keys of the property were admittedly
handed over by the Defendant to the Plaintiff on 25th February, 2012. There
is no illegality or perversity in the Trial court's order. The decree is liable to
be upheld.
8. With the above directions and observations, the appeal is accordingly
dismissed, being devoid of merit and non-prosecution on behalf of the
Defendant.
CM APPL. 2447/2018
9. This application has been filed by the Plaintiff seeking release of the
decretal amount deposited by the Defendant with the Registry.
10. None appears for the Defendant.
11. The Director of the Defendant company is also claimed to be
absconding and is alleged to be unable to pay his dues to several debtors as
per the application. In view of above discussion, it is directed that the
amount lying deposited in this court be released to the Plaintiff along with
any interest accrued thereon. The Plaintiff would be entitled to seek
execution of any other amount that may be due or payable to him.
12. List before the Registrar on 5th February, 2018 to enable release of the
amount deposited in favour of the Plaintiff. On the said date, the Plaintiff
shall remain present before the Registrar.
CM APPL. 3435/2015
13. This is an application filed under Section 340 Cr.P.C. against Mr.
Karan Tomar, the Director of the Appellant company
14. In view of the order passed in the appeal, this application is not
pressed and is disposed of as such.
PRATHIBA M. SINGH
(Judge)
JANUARY 22, 2018
j
