Delhi High Court
Mrs. Mahdu Gupta & Anr vs Stepup Food Corps & Others on 7 March, 2018
$~OS-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 07.03.2018
+ CS(COMM) 755/2017
MRS. MAHDU GUPTA & ANR ..... Plaintiffs
Through Ms.Mukti Chaudhary and Ms. K.
Megha, Advs.
versus
STEPUP FOOD CORPS & OTHERS ..... Defendants
Through Mr.Vineet Malhotra, Adv. for D-2.
Mr.Mukesh Kumar, Advocate for D-3
and D-4.
Ms.Meera, Proxy Counsel for D-5 to
7.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. This suit is filed by the plaintiffs to pass a decree of possession of the
suit property, namely, Ground and Mezzanine Floors of the premises at 48,
Janpath, New Delhi. Other connected reliefs are also sought.
2. Some of the relevant facts are that the plaintiffs and defendant No.1
through their partners defendant Nos.2 to 6 had entered into a lease deed
dated 30.11.2015 for a period of 9 years. Initially the lease was for a period
of 3 years at a monthly rent of Rs.20,00,000/- which was to be renewed
subsequently. It is the case of the plaintiffs that the defendants have been
defaulting in payment of rent despite several reminders. Hence, a notice was
issued on 16.01.2017 to the defendants in regard to non-payment of rents for
November and December, 2016. Subsequently, the plaintiffs have received a
reply on 05.08.2017 wherein the defendants alleged that the possession of
the suit property was handed over to the plaintiffs on 01.05.2017. It is
contention of the plaintiffs that no such possession was handed over to the
defendants and the averment is being made to wriggle out of the liability for
payment of rents. Hence, the present suit has been filed.
3. On 22.01.2018 the learned counsel for defendant Nos. 5 and 6 has
entered appearance and accepted notice. He also submitted that defendant
Nos.5 and 6 have no objection in case the plaintiffs take possession of the
suit property.
4. On 13.02.2018 when the matter was listed in court, the learned
counsel for defendant Nos.2 to 4 entered appearance and they have also
reiterated that they have handed over possession of the suit property to the
plaintiffs on 01.05.2017 though they do not have any receipt of having
handed over the possession. It was also stated by the learned counsel for
defendant No.2 that a restaurant by the name of 'Calendar's Kitchen and
Bar' is being run by some third party to whom the plaintiffs have handed
over possession. In view of the contention of the defendant No.2, the said
entity 'Calendar's Kitchen and Bar' was impleaded as defendant No.7 and
summons were sent to him.
5. On 28.02.2018 the learned counsel for the plaintiffs made a
submission that it is actually Mr.Shray Jain, defendant No. 5 who is running
the Calendar's Kitchen and Bar. Permission was sought to issue summons
to the said the Calendar's Kitchen and Bar through defendant No. 5. The
prayer was accepted. On that date also this court appointed a local
commissioner to visit the suit property and ascertain as to who is in actual
physical possession of the suit property. He was to also make an inventory
of the goods lying in the premises and to take photographs and make a video
recording.
6. Although the report of the local commissioner is not on record,
advance copy of the said report is available with the learned counsel for the
plaintiffs who has filed a copy of the same in court. It is sent for scanning to
the Registry to be placed on record.
7. As per the report of the local commissioner, the premises are lying
locked with the articles abandoned and scattered. He has also made enquiry
from some of the neighbours who have confirmed that the premises is lying
locked for the last 3-4 months approximately and only at times in late
evening hours the premises have been opened to cater away some of the
moveables articles.
8. Learned counsel for defendant Nos.5, 6 and 7 has appeared. She has
however not been able to communicate any averments on the issue except
stating that she needs time to file written statement.
9. The learned counsel for the plaintiffs has pointed out that defendant
Nos.5 and 6 have filed their written statement and advance copy of the same
is available with her wherein they again have taken the plea that keys of the
suit property have been handed over to the plaintiffs on 01.05.2017. She
submits that they essentially reiterated the contentions of defendant No.2 to
4. She also submits that there is no averment in the written statement
claiming that defendant No.7 is in possession of the suit property.
10. Situation arises is that as far as defendant Nos.2 to 4 are concerned,
they have claimed that they have handed over the possession of the suit
property to the plaintiffs on 01.05.2017. Defendant Nos.5 and 6 also appear
to be reiterating the same facts. As noted above, this court on 22.01.2018
noted the submission of defendant Nos.5 and 6 that they have no objection
in case the plaintiffs take possession of the suit property.
11. As per report of the local commissioner, the property is lying vacant
though locked. However, none of the defendants claim that they are in
possession. According to them, they have handed over possession of the
premises to the plaintiffs in May, 2017. In my opinion, there is sufficient
ground made out to pass a decree of possession in favour of the plaintiffs
and against the defendants for possession of the suit property. A decree of
possession is accordingly passed in favour of the plaintiffs.
12. All other issues are kept open for adjudication. Defendants may file a
written statement within stipulated period.
13. In the peculiar facts and circumstances of the case Mr.Siddhant
Asthana, Advocate (Mobile No.:9818501011) who had earlier been
appointed as local commissioner is again appointed as local commissioner.
He will again visit the suit premises at 48, Janpath, New Delhi. He will,
break open the locks of the premises and will make inventory of the goods
lying in the premises and hand over the goods on superdari to the plaintiffs.
These goods may be kept by the plaintiffs in custody subject to further
orders of this court. His fee is fixed at Rs.50,000/- plus out of pocket
expenses. Thereafter, he will hand over vacant physical possession of the
suit premises to the plaintiffs. The local commissioner will also take
photographs of the moveable articles and the area. He may seek police
assistance if required. The SHO of the area will comply with any such
request if made.
14. Local commissioner will visit the suit premises on 10.03.2018 at
12.00 Noon. The defendants/authorised representatives may remain present
on the said date at the suit premises.
15. A copy of this order be given dasti under the signature of the court
master.
16. List on 05.04.2018 before Joint Registrar for further proceedings.
JAYANT NATH, J.
MARCH 07, 2018/v
