Delhi High Court
Pradyuman Kumar Aggarwal & Ors vs Orchid Salon Services Pvt Ltd. & ... on 14 September, 2018
$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 11th September, 2018
Pronounced on: 14th September, 2018
+ CS (COMM) 29/2018
PRADYUMAN KUMAR AGGARWAL & ORS
..... Plaintiffs
Through : Mr.Rahul Gupta, Mr.Shekhar
Gupta and Mr.Utkarsh, Advocates.
versus
ORCHID SALON SERVICES PVT LTD. & ANR
..... Defendants
Through : Ms.Shreya Singhal and
Mr.Tanveer Oberio, Advocates
with Mr.Navin Gupta/defendant
No.1 in person.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
IA No. 9670/2018, 500/2018, 501/2018, 502/2018, 10906/2018
1. The IA No.9670/2018 is under Order XII Rule 6 and XIII A of
CPC, IA No.501/2018 is under Order XXXIX Rule 10 read with Order
XXXIX Rule 1 and 2 to pass necessary orders and directions against
defendant no. 1 and 2 to pay and deposit the arrears of rent and other
dues; IA No.10906/2018 is under Section 151 CPC for pass necessary
directions in IA No.500/2018, 501/2018 and 502/2018.
2. The present suit is filed by the plaintiff for recovery of possession
of suit property No. M-32, entire first floor having exclusive entrance
from the front side and common entrance from the rear side admeasuring
1950 sq ft area at M-Block Market, Greater Kailash-I, New Delhi -
110048 along with the relief of recovery of arrears of rent, damages,
mesne profit, dues of service tax, GST, also towards maintenance charges
of the lift and for recovery of amount with respect to non-deposit of TDS.
3. It is alleged the defendants no.1 and 2 have filed their written
statement, a bare perusal of which would reveal there is no defence and
triable issue raised and rather the claims of the plaintiffs are admitted and
resultantly the plaintiffs are entitled to the decree in the suit on the basis
of admissions made by them.
4. The defendant no.1 in its written statement has admitted the
relationship of landlord/tenant vide registered Lease Deed dated
30.06.2015, signed and executed between the plaintiffs and defendant
No.1.
5. The rental of 7.00 lacs per month is also admitted by the
defendant no.1. Clause 2(v) of the lease deed dated 30.06.2015
specifically prohibits the sub-letting of the suit property and it runs as
under:
"2. v) The LESSEE shall have no right and/or authority under
any circumstances to assign, sublet, underlet, mortgage, or grant
license to use or otherwise part with the possession of the
demised premises or any part thereof. Change in constitution in
the lessee company shall tantamount to sub-letting for the
purposes of this clause. It is clarified that the possession of the
demised premises shall not be parted away to anybody by the
lessee under any circumstances."
6. Admittedly, the rent has not been paid since June 2017 though the
learned counsel for the defendants says security deposit of 28.00 lying
with the plaintiff has been adjusted against the rent for four months i.e.,
till September 2017, which I feel could not have been adjusted at this
stage and defendant no.1 has no authority to do it. The security deposit is
liable to be adjusted only once the dealing/relations of the parties are
coming to an end and the dues are finally settled. Hence admittedly the
rent has not been paid by defendant no.1 to the plaintiff since June 2017.
Admittedly the tenancy of defendant no.1 is terminated with effect from
31.12.2017 by legal notices dated 16.05.2017 and 12.12.2017, duly
served-but never replied. The written statement of both the defendants do
not make out anything except blaming each other.
7. The argument of the learned counsel for the defendant no.1 is
though the rent deed was registered in the name of plaintiff and defendant
no.1 but in fact the oral understanding between the parties, for all intents
and purposes, was the premises shall be occupied by defendant no.2 and
she shall be paying the rent and in fact have paid the pagadi amount of
2.5 lacs vide a cheque. It is submitted defendant no.1 has nothing to do
with the premises and only defendant no.2 is in the possession of the
same.
8. Per Section 91 and 92 of the Indian Evidence Act, when there exist
a written document the intention of the parties have to be culled out from
such written document viz. the registered lease deed dated 30.06.2015
and not from any alleged oral understanding. Thus considering the fact
the lease of defendant no.1 being terminated and even having expired by
efflux of time and since the defendant no.2 has no right to be in the
premises and even otherwise, the defendant no.2 is in premises only
through defendant no.1 despite the lease deed prohibits such sub-letting,
hence the decree of possession is hereby passed in favour of the plaintiff
and against defendant no.1 as also against defendant no.2, since
defendant no.2 is in possession only through defendant No.1; in violation
of clause 2(v) of the lease and thus both are directed to vacate the
premises and hand over its vacant and peaceful possession to the plaintiff
within four weeks from today. This order is being passed under the
provisions of Order XIII-A of the CPC read with Order XII Rule 6 of
CPC since the defendants have admitted the claim of the plaintiffs and
have not been able to raise any triable issue/defence in their written
statement and no purpose shall be served by continuing the proceedings
qua possession in the present suit.
9. The defendant no.1 is further directed to deposit with the Registrar
General of this Court the arrears of rentals with effect from June 2017 till
date within four weeks and also every month till the possession is handed
over as aforesaid. The amount so deposited shall be released to the
plaintiff on its furnishing an undertaking that such amount shall be re-
deposited in the Court within four weeks if so directed. The applications
are disposed of in terms of the above.
10. Qua the dues of the TDS, damages, mesne profits, service and
maintenance charges of lift etc. the suit shall continue.
CS(COMM) 29/2018
11. List on 15.01.2019 for further directions.
YOGESH KHANNA, J
SEPTMBER 14, 2018
DU
