Sujata Prakash vs Sh. Angad S. Batra
2018 Latest Caselaw 4035 Del

$~OS-7
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: 17.07.2018
+     CS(COMM) 805/2017
      SUJATA PRAKASH                        ..... Plaintiff
                      Through Ms.Aditi Sharma, Adv.
               versus
      SH. ANGAD S. BATRA                    ..... Defendant
                      Through  Mr.Luv Kumar, Adv.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL

IA No.13782/2017

1. This application is filed by the plaintiff under Order XV-A readwith Order XXXIX Rule 10 read with section 151 CPC. The case of the plaintiff is that the defendant approached the husband of the plaintiff for taking on lease the first floor measuring 1350 sq.ft. and the terrace alongwith partially covered construction on the second floor of the property M-82, Greater Kailash-II New Delhi-110048. The parties entered into a registered lease agreement with regard to the suit property for a period of nine years and three months commencing from 15.4.2013 to 15.4.2022. As per clause 9 of the Lease Agreement the monthly rent was Rs.2,65,000/- for a period of three years. This amount was to be enhanced by another sum of Rs.46,375 and was to be enhanced to Rs.3,11,375/- after a lapse of a period of three years. As per the lease the current rent would be Rs.3,11,375/-. The grievance of the plaintiff is that defendant has failed to pay the rent from February 2017 till June2017 amounting to Rs.70,42,706/-. It is also stated

CS(COMM) 805/2017 Page 1 that the plaintiff has terminated the lease agreement w.e.f. 15.7.2017 vide legal notice dated 28.06.2017. Hence, the present application asking the defendant to deposit the arrears of rent and also to pay the subsequent rent @ Rs.3,11,375/- as per lease deed.

2. The defendants have filed their reply to this application. They have also filed a counter-claim. In the counter-claim it has been stated that assurances had been given by the husband of the plaintiff that the suit property is fit for commercial use. It is on this assurance that the parties entered into a registered lease agreement. What was not disclosed to the defendant was that the schedule premises is a residential colony and not fit for commercial purpose. The defendant came to know the fact when the MCD demanded conversion charges from the plaintiff and issued notice of demand for the same. It is also pleaded that the defendant believing plaintiff's word that the suit premises is commercial invested Rs.1,23,67,504/- including the machinery, furniture, kitchen, lightings, plumbing works, interior works, advertisements, promotions etc. to run a restaurant in the premises. Subsequently the defendant came to know that the suit premises is not commercial and the statutory authorities started demanding statutory dues. Hence, the defendant is stuck with the huge investment. Hence, the defendant seeks a a sum of Rs.1,23,67,504/-with costs and interest. It is also stated that an amount of Rs.15,90,000/- is already deposited as a security with the plaintiff.

3. Order XVA CPC reads as follows:-

"(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

CS(COMM) 805/2017 Page 2 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. .... "

4. Clause 9 of the registered sale deed dated 15.4.2013 reads as follows:-

"(9) The monthly rent (hereinafter referred to as the "Rent") for the said premises shall be calculated @ Rs.2,65,000/- p.m. (Rupees two lacs sixty five thousand only) per month plus service tax for the first three year of the Lease i.e. from 16 th April 2013 to 15th April 2016. With due respect to the condition that the first month is rent-free.

Subsequently thereafter 16th April 2016 to 15th April 2019 there shall be an increase in rent by Rs.46,375/- on the last rent paid for the next 3 years i.e. the rent shall be @ Rs.3,11,375/- (Rupees Three Lacs Eleven Thousand Three Hundred Seventy Five Only) per month plus service tax.

Subsequently thereafter (16th April 2019 to 15th April 2022) there shall be an increase in rent by 54,490/- on the last rent paid for the next three years i.e. the rent shall be @ Rs.3,65,865/-(Rupees Three Lacs Sixty Five Thousand Eight Hundred Seventy Five Only) per month plus service tax.

Subsequently thereafter from 16th April 2022 to 15th July 2022 the rent is mutually agreed as Rs.10,000,000/- (Rupees Ten Lacs only) per month plus service tax.

The Service tax on the rent shall be borne by the LESSEE as applicable.

That the rent shall be payable on monthly basis in advance on or before 20th day of each month. The same shall however be subject to all the applicable tax deductions at source, as pertinent

CS(COMM) 805/2017 Page 3 to the Lessor, and other statutory deductions, if any.

Unless otherwise agreed, the Lessee shall credit the designated bank a/c. Number of the Lessor by an account payee cheque payable at New Delhi on/before the 20th day of each month. Within 14 days of each such credit date Lessor will provide Lessee with a rental receipt baring the PAN number and any other details required by Lessee."

5. User of any premises are stipulated under the Masterplan and zonal plan. These are statutory documents. Defendant cannot plead ignorance of these statutory documents. Prima facie it was for the defendant to have done appropriate due diligence as to whether as per statute the area is fit for commercial or residential use. Prima facie also merely arguing that the area was residential and hence the defendant has suffered damages per se cannot be accepted as an excuse to avoid paying rent of the premises. It is a matter of fact that the defendant continues to occupy premises. In my opinion, as he continues to occupy the premises he is liable to pay the admitted rent as per registered lease deed.

6. Accordingly, I direct the defendant to deposit the arrears of rent in court w.e.f. February 2017 in terms of clause 9 of the lease deed till June 2018. This amount will be deposited within six weeks from today.

7. Application stands disposed of accordingly.

CS(COMM) 805/2017 Defendant may file his affidavit of admission/denial of documents within two weeks from today.

List on 16.10.2018.

                                       JAYANT NATH, J
JULY 17, 2018/n



CS(COMM) 805/2017                                                      Page 4