Delhi High Court
Dinesh Chand @ Dinesh Kumar & Anr. vs Sanjay Solanki on 30 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 558/2018 & CM No. 28370/2018 (stay)
% 30th October, 2018
DINESH CHAND @ DINESH KUMAR & ANR.
..... Appellants
Through: Mr. R.S.Bhalla, Advocate
(Mobile No.9971730965).
versus
SANJAY SOLANKI
..... Respondent
Through: Mr. Birender Singh,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code of
Civil Procedure, 1908 (CPC) is filed by defendants in the suit
impugning the Judgment of the Trial Court dated 02.04.2018 by
which the Trial Court has dismissed the leave to defend application
and has decreed the suit filed by the respondent/plaintiff/landlord
for an amount of Rs.3,04,850/- along with interest at 8% per
annum.
2. The facts of the case are that the respondent/plaintiff/landlord
filed the subject suit pleading that he and the two appellants being
defendant nos. 1 and 2, entered into a Rent Agreement dated
20.03.2013 whereby the appellants/defendants took on rent from the
respondent/plaintiff/landlord his premises being one industrial built-
up and fully furnished premises bearing no. M-216, Pocket-J,
Sector-1, DSIDC, Bawana, Delhi. The Rent Agreement was for a
total period of eleven months and rent which was payable was an
amount of Rs.8,00,000/- for eleven months. The
respondent/plaintiff/landlord claimed that the appellants/defendants
occupied the premises from 01.02.2013 till 11.04.2013 and
thereafter, the appellants/defendants are pleaded to have taken their
belongings and fled away from the premises without clearing
electricity dues amounting to Rs.1,04,850/-. At the time of taking
the premises on rent, 8 post dated cheques were given by the
appellants/defendants towards rent, 4 cheques by each of the
appellants/defendants, and when two cheques of Rs.1,00,000/- each
were presented by the respondent/plaintiff/landlord, being cheque
nos. 755452 and 728401, being the cheques issued by appellant no.
2/defendant no.2, these cheques were dishonoured by instructions
of 'stop payment'. The Subject suit was, therefore, filed for recovery
of rent from 01.02.2013 till 11.04.2013 and the electricity bill
amounting to Rs. 1,04,850/-.
3. As against the appellant no. 2/defendant no. 2, the Order
XXXVII suit was decreed as he failed to file appearance. The suit
was decreed against the appellant no. 2/defendant no. 2 in terms of
the order dated 19.01.2015. Admittedly, this order has become
final because this order was not challenged by the appellant no.
2/defendant no.2. This Court is thus only concerned with the
impugned judgment dismissing the leave to defend application filed
by the appellant no. 1/defendant no.1. In any case, issues of this
appeal will also govern the aspect of appellant no. 2/defendant no. 2
not being entitled to leave to defend.
4. The appellant no. 1/defendant no.1 in his leave to defend
application pleaded that the amount of Rs. 72,800/- per month
towards rent was paid in cash to the respondent/plaintiff/landlord
and therefore, there were no dues towards rent for the subject period
from 01.02.2013 to 11.04.2013. It was also pleaded in the leave to
defend application that the appellants/defendants had incurred
expenses amounting to Rs. 5,00,000/- for renovating the factory
premises taken on rent belonging to the
respondent/plaintiff/landlord. It was pleaded that the
respondent/plaintiff/landlord threw out the appellants/defendants
from the suit premises. It was, therefore, prayed that unconditional
leave to defend be granted.
5. In my opinion, the trial court has committed no illegality in
dismissing the leave to defend application because if a leave to
defend application does not raise a triable issue or the defence
raised is found to be frivolous and vexatious, then the leave to
defend application has to be dismissed as held by the Supreme
Court in the case of IDBI Trusteeship Services Ltd. Vs. Hubtown
Ltd., (2017) 1 SCC 568 and relevant paras of which read as under:
"17. Accordingly, the principles stated in paragraph 8 of
Mechelec's case will now stand superseded, given the amendment
of Order XXXVII Rule 3, and the binding decision of four judges
in Milkhiram's case, as follows:
17.1. If the defendant satisfies the Court that he has a
substantial defence, that is, a defence that is likely to succeed, the
Plaintiff is not entitled to leave to sign judgment, and the
Defendant is entitled to unconditional leave to defend the suit.
17.2 If the defendant raises triable issues indicating that he
has a fair or reasonable defence, although not a positively good
defence, the Plaintiff is not entitled to sign judgment, and the
Defendant is ordinarily entitled to unconditional leave to defend.
17.3 Even if the Defendant raises triable issues, if a doubt is
left with the trial judge about the Defendant's good faith, or the
genuineness of the triable issues, the trial judge may impose
conditions both as to time or mode of trial, as well as payment into
court or furnishing security. Care must be taken to see that the
object of the provisions to assist expeditious disposal of
commercial causes is not defeated. Care must also be taken to see
that such triable issues are not shut out by unduly severe orders as
to deposit or security.
17.4 If the Defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to time or
mode of trial, as well as payment into court, or furnishing security.
As such a defence does not raise triable issues, conditions as to
deposit or security or both can extend to the entire principal sum
together with such interest as the court feels the justice of the case
requires.
17.5 If the Defendant has no substantial defence and/or raises
no genuine triable issues, and the court finds such defence to be
frivolous or vexatious, then leave to defend the suit shall be
refused, and the Plaintiff is entitled to judgment forthwith.
17.6 If any part of the amount claimed by the Plaintiff is
admitted by the Defendant to be due from him, leave to defend the
suit, (even if triable issues or a substantial defence is raised), shall
not be granted unless the amount so admitted to be due is deposited
by the Defendant in court."
6. Admittedly, the suit premises were with the
appellants/defendants, including the appellant no. 1/defendant no.1
on tenancy from 01.02.2013 till 11.04.2013. For this period,
therefore, rent was payable and the defence of the appellant no.
1/defendant no. 1 is that the rent was paid in cash but no document
at all has been filed to show payment of the rent amount in cash by
the appellants/defendants to the respondent/plaintiff/landlord and
therefore this defence is clearly a frivolous and vexatious defence
raising no triable issue. So far as the electricity bill is concerned,
there is no dispute that the said electricity bill is with respect to the
period for which tenancy was with the defendants in the suit for the
period from 01.02.2013 to 11.04.2013.
7. In view of the aforesaid discussion, the trial court has rightly
dismissed the leave to defend application. There is no merit in the
appeal. The appeal along with pending application is dismissed.
OCTOBER 30, 2018 VALMIKI J. MEHTA, J
aruna
