Anil Jain & Ors vs Gullus Bar-B-Que & Anr
2019 Latest Caselaw 659 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CS(COMM) 894/2018

        ANIL JAIN & ORS                            ..... Plaintiffs
                      Through: Mr. Ankur Mahindro, Advocate with
                               Mr. Jayant Mohan Varma, Advocate.

                           versus

        GULLUS BAR-B-QUE & ANR                               .....Defendants
                     Through: None.


%                               Date of Decision: 01st February, 2019

        CORAM:
        HON'BLE MR. JUSTICE MANMOHAN

                               JUDGMENT

MANMOHAN, J: (Oral)

1. Present suit has been filed for recovery by plaintiffs landlord-owner against defendants-tenant forRs.58,79,939/- (Rupees Fifty Eight Lakhs Seventy Nine Thousand Nine Hundred and Thirty Nine Only) along with pendente lite and future interest at 18% per annum on the following basis:-

Particulars Amount Rent form May, 2012 to August, 2013 @ 51,12,990/- Rs.3,40866/- p.m. Interest @12% p.a. till the date of filing of the suit. 7,66,949/-

Total 58,79,939/-

2. The prayer clause in the present suit is reproduced hereinbelow:-

"a. Pass a decree for a sum of Rs.58,79,939/- and future interest in favour of the Plaintiffs and against the Defendants on account of rent for the period May 2012 to August 2013:

b. Award the costs of the suit along with Court Fee, litigation expenses in favour of the Plaintiffs; and

Any other further order or relief which this Hon'ble Court deems fit and proper be awarded to the Plaintiffs and against the Defendants in the peculiar facts & circumstances of this case."

3. On 15th September, 2017, this Court had imposed costs of Rs. 35,000/- on the defendant nos.1 and 6, payable to Lok Nayak Hospital, while condoning the delay in filing the written statement by the defendant nos.1 and 6. However, since the said defendants did not pay the aforementioned costs,this Court was constrained to take the written statement filed by the defendant nos.1 and 6 off the record vide order dated 12th September, 2018. Additionally, vide the same order, since none was appearing for defendant nos.2 to 5, they were proceeded ex parte.

4. The plaintiffshave filed theirevidence by way of affidavit. However, thereafter, the defendant nos. 1 and 6 stopped appearing. Consequently, the defendant nos.1 and 6 are proceeded ex parte.

5. The contentions and submissions advanced by learned counsel for the plaintiffs are as under:-

i. The defendant no.1, a partnership firm comprising of defendant nos.2 to 6, had been inducted as a tenant in respect of commercial space admeasuring 1497 sq. ft. super built-up area bearing No. C-101, First

Floor, Block C, Ansal Plaza, Hudco Place, New Delhi (hereinafter referred to as the 'Suit Property') by Ansal Properties and Industries Ltd. vide Sub Lease Agreement dated 13th November, 2001. (Ex. PW-1/2)

ii. On 28th September, 2004, the plaintiffs acquired the Suit Property from Ansal Properties and Industries Ltd.

iii. A Sub Lease Agreement dated 01st October, 2004 (Ex. PW-1/3) was executed between the plaintiffs and the defendant no.1. The relevant portion of the said lease agreement reads as under: - "2.Duration That the present Sub-Lease Agreement is for an initial period of three years out of which there will be an irrevocable period of 20 months (i.e. upto 31.5.2006) and the tenancy shall be deemed to commence with effect from 1st day October 2004. The sub-Lease agreement can be renewed at the option of the lesseee for a further period of 3 years with an escalation of 15% of the last paid rent. A fresh agreement will be stamped and got registered for the renewed term. After the expiry of above period the lease can be extended for further period at the option of the FIRST PARTY subject to mutually agreed terms and conditions by the SECOND PARTY every renewed term.

3: Rent That the SECOND PARTY shall pay a sum of Rs.2,96,406/- (Rupees two lac ninety six thousand two hundred four only) per month as rent calculated at the rate of Rs.198/- per sq. ft. on super area basis per month to the FIRST PARTY for the demised premises of 1497 sq.ft. (super built up area)."

iv. The defendants were habitual defaulters and never tendered rent of the Suit Property in time.

v. The plaintiffs were constrained to adjust the outstanding dues of the defendants from the Security Deposit of the defendants in terms of Clause 7 of the Sub Lease Agreement dated 01st October, 2004.

vi. The defendants vacated the Suit Property on 10th August, 2013.

vii. On the date of filing of the suit, an amount of Rs.1,17,68,501/-

(Rupees One Crore Seventeen Lakhs Sixty-Eight Thousand Five Hundred and One Only) was outstanding in favour of the plaintiffs and against the defendants. However, in view of Article 52 of the Limitation Act, 1963 the plaintiffs were constrained to limit their claim for the last 36 months preceding the filing of the suit.

viii. The suit was filed on 29th May, 2015. Consequently, in the present suit, the plaintiffs have limited their claim towards mesne profit/damages for the period commencing from May, 2012 upto 10 th August, 2013 at the rate of Rs.3,40,866/-.

6. Learned counsel for the plaintiffs states that the plaintiffs have averred in the plaint that in terms of the Sub Lease Agreement dated 01st October, 2004, the defendants were liable to make payment of rent of Rs.2,96,406/- (Rupees Two Lakhs Ninety-Six Thousand and Four Hundred and Six Rupees Only) per month, at the rate of Rs.198/- (Rupees One Hundred Ninety-Eight Only) per square feet on Super Area Basis along with

escalation of 15% on the last paid rent in accordance with the said Sub Lease Agreement.

7. He contends that there is no denial by the defendants in the corresponding paragraphs of the written statement.

8. He emphasises that the plaintiffs had duly proved their case by examining Shri Anil Jain, as PW1 who has duly proved the Sub Lease Agreement dated 13th November, 2001 as Ex. PW-1/2and Sub Lease Agreement dated 01st October, 2004 as Ex. PW-1/3.

9. In the opinion of this Court, asthe defence of the defendants has been taken off record, the averments in the plaint are deemed to have been admitted.

10. It is pertinent to mention that though the plaintiffs in the instant suit are praying for a decree in the sum of Rs.58,79,939/-computed at the rate of the rent of Rs.3,40,866/-,yet as the Sub-Lease Agreements are unregistered andthe plaintiffs have not produced anycontemporaneous documents which show that the market rent of a similar property was Rs.3,40,866/-, the claim of arrears of rent shall be computed on the basis of last paid rent paid by the defendants.

11. Consequently, the suit is decreed in favour of the plaintiffs and against the defendantsfor Rs.42,48,486/-(i.e. Rs.2,96,406/- for the period between May, 2012 upto 10th August, 2013) along with pendente lite and future interest at 7% per annum. This Court may mention that it is awarding the interest at 7% per annum as that is the normal rate at which the banks are lending monies now-a-days.The plaintiffsare also held entitled to actual

costs of litigation. The costs shall amongst others include the lawyer's fees as well as the amount spent on Court-fees. The plaintiffsare given liberty to file on record the exact cost incurred by it in adjudication of the present suit. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J FEBRUARY 01, 2019 rs