Delhi High Court
Kawaljeet Bansal vs Kavita Jain & Ors on 12 November, 2018
$~139
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 12.11.2018
+ CM (M) No.1366/2018
KAWALJEET BANSAL ..... Petitioner
Through: Dr. Anurag Kumar Agarwal,
Adv. and Mr. Umesh Mishra,
Advs.
versus
KAVITA JAIN & ORS ..... Respondents
Through: Mr. Shiv C. Garg, Adv. and Mr.
G. Tyagi, Adv.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
CM APPL. 46769/2018 (exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
CM(M) 1366/2018
3. The order dated 08.10.2018 passed by the Court of learned
Additional District Judge-03, (Central) Tis Hazari Courts, Delhi
(„ADJ‟) dismissing the application of the petitioner under
Section 151 of the Code of Civil Procedure, 1908 („CPC‟) for a
direction to the respondent to deposit the conversion
charges/parking charges qua the tenanted premises is the subject
CM (M) No.1366/2018 Page 1 of 5
matter of challenge in this petition under Article 227 of the
Constitution of India.
4. Admittedly, the petitioner/defendant has taken the premises in
question on rent from the respondent by a registered lease deed
dated 24.05.2017 for a period of nine years with a lock-in-
period of four years. The clause 8 of the Lease deed reads as
under:-
"If any service tax ever imposed by MCD or any
other authority, it will be the liability of the Second
Party/Tenant and the conversion and parking tax if
applicable then the same shall be paid and borne
by the first party/lessors.
5. The learned counsel for the petitioner contends that the
respondents have not deposited the complete conversion
charges with the MCD. He submits that in case, conversion
charges and parking charges are not deposited, the property in
question is likely to be sealed by the MCD and the petitioner
would suffer an irreparable loss and injury. The learned „ADJ‟
has dismissed the application by impugned order observing that
"The property is of the plaintiffs and it is for the plaintiffs to
take a call whether to deposit the conversion charges/parking
charges or not. It is for the plaintiffs to take a call as to
whether they would like to have their property converted into a
commercial one by deposit of the requisite charges. This
essentially depends on the personal volition of the plaintiffs. It
is no doubt correct that clause 8 of the lease deed speaks of
CM (M) No.1366/2018 Page 2 of 5
liability of plaintiffs to pay conversion/parking tax, if
applicable. However, to my mind, such a clause is not
enforceable as it depends on personal volition of plaintiffs. In
the event of breach of the terms of the contract, the aggrieved
party may sue for damages. Secondly, at the time when the
property was taken on rent, the notification dt. 22.06.2007 was
already in force. If this was so, the point is that the defendant
had taken premises knowing fully well that no conversion
charges qua the tenanted premises which was being taken on
rent for commercial activities had been paid."
6. In my considered view, the learned „ADJ‟ has rightly dismissed
the application of the petitioner. The property is owned by the
respondent and it is for him to take the call to pay the
conversion and parking charges in order to secure the benefits.
The petitioner/tenant cannot compel the landlord/respondent to
make the payment of conversion/parking charges to the Local
Authority. This is particularly when the property was demised
to the petitioner on lease, the notification dated 22.06.2007 was
already in force. Unfortunately, the petitioner has not annexed
its copy with the petition, when it has been referred to by the
learned „ADJ‟ in the impugned order. The word "if" mentioned
in Clause 8 of the lease deed as referred hereinbefore with
regard to applicability of conversion and parking charges
indicate uncertainty of the clause and hence, it is not
enforceable u/s 29 of the Indian Contracts Act, 1872.
CM (M) No.1366/2018 Page 3 of 5
7. Further, the said clause 8 in the lease deed is in the nature of the
Respondent's own volition and such a clause can't be enforced
in a court of law. Section 14 of the Specific Relief Act, 1963
(SRA) lays down specific cases where contracts are not
enforceable in law. At this stage, it would be relevant to refer to
the section :-
"14. Contracts not specifically enforceable.--
(1) The following contracts cannot be specifically
enforced, namely:--
(a) a contract for the non-performance of which
compensation in money is an adequate relief;
(b) a contract which runs into such minute or numerous
details or which is so dependent on the personal
qualifications or volition of the parties, or otherwise
from its nature is such, that the court cannot enforce
specific performance of its material terms;
(c) a contract which is in its nature determinable;
(d) a contract the performance of which involves the
performance of a continuous duty which the court cannot
supervise.
................."
A bare perusal of Section 14(1)(b) of the SRA is
sufficient to observe that contracts that are dependent on the
personal qualifications or volitions of the parties are
categorically unenforceable.
8. In the case at hand, a sole reading of the Clause 8 of the Lease
deed indicates that the onus on the respondent to pay the
conversion and parking charges is in the nature of the
respondent's personal volition. The respondent is the owner of
the said property and the choice of whether to pay the parking
CM (M) No.1366/2018 Page 4 of 5
and conversion charges with respect to his property lies with
him and the Court cannot compel the Respondent to pay these
charges. However, that being said, the Petitioner is still not left
remediless and he still can, if he suffers any loss due to the
breach of the said clause, file a suit for damages.
9. In view of this discussion, I do not find any illegality or
infirmity in the order. The petition is dismissed with no order as
to costs.
VINOD GOEL, J.
NOVEMBER 12, 2018
'sandeep'
