Pari Service P.Ltd. vs Pennzoil Quaker State India Ltd
2018 Latest Caselaw 1685 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision: 13th March, 2018
+                                 RFA 51/2007
       PARI SERVICE P.LTD.                               ..... Appellant
                      Through:         Mr. Rakesh       Kumar, Advocate.
                                       (M:9811549455)
                         versus

       PENNZOIL QUAKER STATE INDIA LTD       ..... Respondent
                    Through: Ms. Shilpi Chowdhary, Advocate.
                              (M:9718848910)
       CORAM:
       JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

CM APPL. 36658/2017 (restoration) in RFA 51/2007

1. This is an application seeking restoration of the appeal which was dismissed on 12th September, 2017. For ready reference the order dated 12th September, 2017 is extracted herein below:

"Nobody appeared on behalf of the appellant. Perusal of record shows that the present appeal was filed in the year 2007. The appeal was admitted on 08.07.2009. On 18.07.2011, nobody appeared for the appellant and the matter remained on board. On 19.07.2011 and 25.07.2011 again nobody appeared for the appellant. The appeal and applications were dismissed on 25.07.2011. Thereafter on 23.08.2011, the appeal was restored to its original number and ordered to be listed as per its own turn in the Regular List. On the last date of hearing i.e. on 25.08.2017 nobody appeared for the appellant. Today also nobody

appeared on behalf of the appellant.

The conduct of the appellant shows that they are not interested in pursuing the present appeal. Consequently the present appeal is dismissed in default."

2. A perusal of the order sheets shows that there have been a large number of dates on which there was no representation on behalf of the Appellant. The said dates are 18th July, 2011, 19th July, 2011 and 25th July, 2011. In fact on 25th July, 2011 the appeals came to be dismissed and upon an application for restoration the appeal was restored on 23rd August, 2011 to its original number. Matter was on the regular board and on 25 th August, 2017 also no one appeared on behalf of the Appellant. On 12th September, 2017 again no one appeared on behalf of the Appellant and the matter was dismissed in default.

3. The only reason given in the application is that learned counsel for Appellant was held up in another Court. There is nothing to support this averment and except this ground there is no other ground.

4. In any event, since both parties were represented, the Court has heard the matter even on merits. The Court has also examined the impugned order and the pleadings on record.

5. Admittedly, the suit premises was taken on rent by the Respondent with effect from 15th June, 1994 with a rental amount of Rs.1080/- per day. The rent was being paid by the Respondent and on 5th October, 1994, a letter was issued by the Respondent that they wish to vacate the premises. The said letter is extracted herein below:

"05 October, 1994

M/s Pari Services (P) Ltd.

New Delhi

Dear Sirs,

Premises at Ishwar Nagar, New Delhi

This is to advise you that we would like to discontinue with the arrangements entered into between us in respect of the above premises with effect from October 10, 1994. In this regard, we enclose a Cheque No.723940 Dtd. 5.10.1994 for Rs.10,805/- favouring Pari Services (P) Lid. towards rent for the period 1st Sept., 1994 to 10th October, 1994, made up as under:

               Rent @ 1080/- per                        43,200/-
               day for 40 days
               Less:    Unadjusted                      29,167/-
               Deposit paid in
               advance
               Less: TDS @ 23%                           3,228/-
               on Rs.14,033/-
               (i.e.   Rs.43,200/=
               Rs.29,167/=)
                                                        10,805/-
                Kindly acknowledge the receipt. "

6. Receipt of this letter is admitted by the Appellant, however, Appellant took the stand that this letter was not in accordance with the provisions of Section 106 of the Transfer of Property Act which requires 15 days period for notice being issued. On a specific query to learned counsel for Appellant, as to whether there was any reply sent to this letter dated 5 th October, 1994, it was submitted that there was no reply sent. Learned Trial

court, under such circumstances, in the impugned judgment framed the following issues.

"(i) Whether the tenanted premises are owned by Mr. Chetan Sharma or any of his relative or by the Plaintiff company in which Mr. Chetan Sharma has a share? OPD

(ii) Whether Mr. Chetan Sharma had formed the plaintiff company during the employment with the defendant company and started running a parallel and competing business with that of the defendant company under the name and style of the plaintiff company? If so, to what effect? OPD

(iii) Whether the defendant had not vacated the tenanted premises on 10.10.1994? OPP

(iv) Whether the defendant had hired the furniture lying in the tenanted premises? If so, to what effect? OPP

(v) If the issue No.(iv) is decided in the negative, then on what date the furniture was removed from the tenanted premises? OPP

(vi) What was the tenancy period of the premises under which the defendant occupied and used the premises and what is the tenancy period for which the plaintiff is entitled to rent from the defendant and at what monthly rent? OPP

(vii) If the issue No.(v) is decided in the negative, whether the plaintiff is entitled to rent for the period from 1.9.94 to 5.9.96? OPP

(viii) Whether the defendant had made efforts to remove the furniture but the same could not be

removed due to any act on the part of the plaintiff? OPP

(ix) To what amount if any, the plaintiff is entitled to? OPP

(x) Whether the plaintiff is entitled to any interest, if so, at what rate? OPP

(xi) Relief. "

7. On the main issues i.e. issue nos.3, 6 & 7 the Trial Court arrived at the following conclusion.

"As it is admitted case of the plaintiff company that defendant has not even tendered any rent after 10.10.94. Despite that plaintiff has not taken any action against the defendant before sending the legal notice. In this case the monthly rent is more than Rs.32,000/- despite that plaintiff company even did not think proper to write a single letter to the defendant company to make inquiry why they were not sending the rent after 10.10.94. The General Manager of the defendant company was none-else but the son of Mr. R.N. Sharma. i.e Mr. Chetan Sharma. Despite that plaintiff company failed to get rent from the defendant company after 10.10.94 and plaintiff company failed to even lodge its protest by writing a few lines to the defendant company. Though PW1 in his cross-examination deposed that he had sent letters and made verbal requests several times to the defendant company but he failed to produce any such letters and also failed to disclose the name of the person with whom he contacted in the defendant company. Thus, the testimony of PW1 to the extent that he wrote letters and made enquiries about the rent in the

defendant company does not inspire any confidence. The conduct of the plaintiff is contrary to the conduct of any prudent person. If defendant had not vacated the tenanted premises on 10.10.94, plaintiff should at least wrote few lines to the defendant company asking them why they were not paying rent after 10.10.94. On the other hand the conduct of defendant company tor not tendering tent after 10.10.94 shows that they vacated the premises w.e.f. 10.10.94. .............................. Thus, the plaintiff's version that the keys were handed over on 05.09.96 by the representative of M/S Ashoka Furniture does not appear trustworthy.

As it is already discussed that Mr. Chetan Sharma dealt with on behalf of defendant company at the time of creating tenancy, hence it can safely be presumed that the keys of premises were accepted by Mr. Chetan Sharma on behalf of defendant company and Mr. Chetan Sharma is none else but the son of Mr. R. N. Sharma who is father of Mr. Chetan Sharma and had dealt with the defendant company at the time of creating tenancy. There is no evidence on record that Mr. Chetan Shama had entrusted the key with any other official/officer of the defendant company. In these circumstances, inference can be drawn that the keys were in the possession of Mr. Chetan Sharma at the relevant time."

8. A perusal of the Trial Court judgment clearly shows that the Appellant did not raise any objection or issue any notice during the period from 1st September, 1994 to 5th September, 1996. For the first time, the Appellant made a demand for the rent for the said period on 5 th May, 1997.

There is no letter of communication prior to the said date seeking payment

of rent. It is not fathomable as to how a landlord would maintain complete silence after receiving the notice dated 5th October 1994, from the tenant that it would be vacating the suit property. It is also inexplicable that the landlord continued to permit the tenant to occupy the premises for several months without receiving any rent and not issuing any notice. It appears that the landlord maintained a strategic silence after the notice issued by the Respondent only to raise a claim for rent later on. The notice dated 5th October 1994, extracted above categorically states that the Respondent would be vacating the premises w.e.f. 10th October 1994. If the possession was not handed over at that time, a notice for payment of rent ought to have been issued in the subsequent months by the Appellant. The Appellant's case is that he received possession of the property on 5th September, 1996. It is not clear as to who handed over the possession to the landlord. The Trial Court holds that the stand of the Appellant is not supported by any evidence on record that the Appellant was given possession of the property by M/s. Ashoka Furniture House only on 5th September, 1996. Under such circumstances, the reasoning given by the Trial Court does not call for any interference.

9. CM for restoration is dismissed. Matter is also examined on merits and the Trial Court judgment cannot be interfered with. Appeal is accordingly dismissed.

PRATHIBA M. SINGH Judge MARCH 13, 2018/dk