Delhi High Court
Jin Kushal Exports And Anr vs D J Khera Huf on 1 December, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:02.12.2020
17:57:24
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st December, 2020
+ C.R.P. 78/2020 & CM APPLs. 30787-88/2020
JIN KUSHAL EXPORTS AND ANR. ..... Petitioners
Through: Dr. Rajiv Nanda & Mr. Brijesh
Pandey, Advocate. (M-9560956524)
versus
D.J. KHERA (HUF) ..... Respondent
Through: Mr. Sayed Kamran Ali, Advocate.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done by video conferencing.
2. The present petition has been filed, challenging the impugned order
dated 21st September, 2020, passed by the ADJ-03, South District, Saket
Courts, by which the ld. ADJ has held that the Petitioner/Lessee would have
to deposit the entire amount due in the following schedule:
"...
Viz a viz the service charges/ hire charges which are
nearly equal to that of lease money I am of the view
that the same are not to be included within the rent
and it is altogether a separate transaction and with
regard to the said services no order under Order XV
A CPC can be passed. Nonetheless it is also an
agreement and Court cannot adopt a hyper
technical view and let the defendant enjoy the
premises or remain in occupation without payment
of the agreed amount. The grievance of the
defendants that such services were not provided or
infact were deliberately stopped by the plaintiff can
be adequately met by directing him to deposit a sum
of Rs.65,000/- per month in Court rather than
paying to the plaintiff. The same would serve the
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:02.12.2020
17:57:24
interest of both the parties as well. As such
defendants are directed to pay a sum of Rs.65,000/-
w.e.f February, 2020 till September, 2020 within a
period of one month from today in the name of the
Court by way of DD or by deposit in the Court. The
defendants to continue to deposit the payment @
Rs.65,000/- latest by 7th day of each month w.e.f.
October, 2020 and continue to deposit during the
pendency of the same without fail. This amount
shall be kept in Court and shall be released at the
time of final adjudication of the case."
3. Brief background of this petition is that the Petitioners and the
Respondent entered into two agreements i.e. a lease agreement (`lease
agreement') and an agreement for services cum furniture hire (`Hire
agreement'), on 25th March, 2019, in respect of property bearing no. B-18,
Swami Nagar, New Delhi-110017 (hereinafter, "suit premises"). As per the
two agreements, the amount payable was Rs.70,000/- per month under the
lease for a two year period, and Rs.50,000/- per month, initially for a year,
under the Hire agreement, which was to be later increased to Rs 65,000/- per
month, for another year. Admittedly, the last payment under the lease
agreement was in April, 2020 and under the hire agreement, the last payment
was made in February, 2020.
4. There was thus a default in payment of the amounts, after April, 2020
and February, 2020, under the respective agreements. The ground which the
Petitioners/Lessee took, before the trial court, was that he was not able to
enjoy the premises fully, and accordingly legal notice dated 7th March, 2020
was served to the Respondent/Lessor. The Lessor however filed a suit seeking
the entire amount payable and due, along with interest. In the said suit, an
application under Order XXXIX Rule 1 and 2 CPC r/w order 15A was also
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:02.12.2020
17:57:24
filed by the Lessor. The impugned order dated 21 st September 2020, which
has been challenged before this court, has allowed this application.
5. Mr. Rajiv Nanda, ld. Counsel appearing for the Petitioners/Lessee,
submits that the Petitioners has been unable to enjoy the peaceful possession
of the premises due anti-social elements in the stilt area of the building. He
further submits that the entire scheme of the agreements was to evade tax and
in any event, the Petitioners were willing to pay, and the agreement is coming
to an end in March 2020. He further submits that an amount of Rs.2,40,000/-
of security deposit is also lying with the Lessor.
6. On the other hand Mr. Ali, ld. Counsel appearing for the
Respondent/Lessor, submits that there is a forfeiture clause in the agreement
which clearly provides that if there is any default in the payment, the security
deposit would be liable to be forfeited, and the agreement itself shall stand
terminated.
7. After perusing the record, it is clear that the Lease agreement and the
Hire agreement contain the following two clauses:
Clauses in the Lease Agreement:
"10. That notwithstanding anything in this
agreement if the lessee defaults in monthly payment
of dues by the 1st of every month or in case any of
the cheques bounce on presentation to the bank the
lease agreement will be deemed to be prematurely
terminated and the necessary notice in terms of law
is deemed to have been served and the applicable
security deposit of Rs. 2,40,000/- or Rs. 4,00,000/-
as applicable will be forfeited and clause-10, 18
and clause 19 shall apply.
.....
"19. That the lease is commencing on 01.04.2019,
and expires on 31.03.2021, and the necessary
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:02.12.2020
17:57:24
notice in terms of law is deemed to have been served
by the lessor to the lessee b y virtue of this clause in
this agreement. No further notice would be required
to be served by the lessor to the lessee on expiry of
this lease period on 31.03.2021. The lessee has
agreed to handover vacant and peaceful possession
of the said premises on or before 31.03.2021,
otherwise the lessee shall pay a penal rent of Rs.
15,000/- (Rs. Fifteen Thousand only) per day w.e.f.
01.04.2021. The penal rent of Rs. 15000/- per day
shall also apply in case this clause comes into force
after premature termination of the agreement and
the second party does not vacate the premises after
premature termination of the agreement. The
Lessee may seek an extension beyond 01.04.2021,
subject to the sole discretion of the Lessor, provided
the Lessee confirms the terms of extension on or
before 28.02.2021.
xxx"
Clauses in the Hire Agreement:
"18. That notwithstanding anything in this Services
Agreement in case any of the cheques bounce on
presentation to the bank or the cheques are
dishonoured due to any other reason, the Lease
Agreement dated 25th March, 2019 and this services
cum Furniture Hire Agreement both will be deemed
to be prematurely terminated and the necessary
notice in terms of law is deemed to have been served
and the security deposit of Rs.400,000/- (Rupees
four Lac only) will be forfeited.
19. That this Agreement is for a period of 23 months
and there is a lock in period of 23 months ending
31.03.2021 in case the Second Party vacates the
said Premises prior to 31.03.2021 deposit of
Rs.4,00,000/- shall stand forfeited. Hence this
Service agreement is for total period of 23 months
for which cheques have been handed over by
Pavtira Singh."
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:02.12.2020
17:57:24
8. The above clauses show that if there is any default, the agreements get
prematurely terminated and the security deposit could also be forfeited. The
question as to which of the parties is in default is to be determined in the suit.
But at least insofar as payments by the Lessee is concerned, the admitted
position is that there has been non-payment since April 2020 under the Lease
Agreement, and non-payment since February 2020 under the Hire Agreement.
The impugned order passed by the Trial Court directed the Lessee to deposit
the entire payment within a period of one month with the Court. The said one
month period has also lapsed. The Respondent/ Lessor claims that he has
forfeited Rs.2,40,000/-. This issue is not being gone into currently, and would
be the subject matter of adjudication in the suit. However, insofar as the non-
payment of the amounts is concerned, there is no justification.
9. The tenure of the lease is till March 2021. Thus only a few months are
left. The outbreak of pandemic since March, 2020, could have been a reason
for delay in the payments and hence considering the extenuating
circumstances that are generally prevailing, the Court considers it appropriate
to give time to the Lessee to pay the amounts. The trial court has directed
deposit in the Court. However, the same would not serve any purpose. The
Lessor is a senior citizen and ought not to be deprived of his monthly income
which in any case has been considerably delayed.
10. Considering the overall facts and circumstances, it is directed that the
payments shall be made by the Lessee to the Lessor strictly, in accordance
with the schedule below:
Under Lease agreement:
Lease agreement : Amount payable since May, 2020 - Rs.70,000 for 8
months.
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:02.12.2020
17:57:24
Under Hire agreement:
Services cum Furniture Hire Agreement: Amount payable since March,
2020 - Rs.65,000 for 10 months.
The total amount due is Rs.12,10,000/-. The same shall be paid to the
Respondent/ Lessor in the following manner:
▪ Rs.7 lakhs by 25th December, 2020
▪ Rs.5 lakhs by 10th January, 2021.
11. The monthly amounts payable, from the month of January 2021, shall
be paid on or before the 7th of every month. If there is any default in these
payments, for every month an additional amount of Rs.10,000/- would be
payable since the months of default i.e., May 2020 and March 2020 under the
respective agreements. All payments shall be made by the way of a Demand
Draft in favour of the Respondent/Lessor. Subject to the above payments
being made, the defence of the Petitioners shall not be struck off by the trial
court.
12. The above observations, and the observations in the impugned order,
are only for the purposes of deciding the interim applications, and shall have
no bearing on the final decision in the suit filed by the Respondent/Lessor.
13. This petition, and all pending applications, are disposed of in these
terms. If there is any violation or non-payment, the Lessor/Respondent is at
liberty to move an appropriate application.
PRATHIBA M. SINGH
JUDGE
DECEMBER 1, 2020
Rahul /Ak
