Delhi High Court
Manmohan Singh vs Harish Kumar Setia on 22 January, 2021
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22.01.2021
+ CM(M) 53/2021
MANMOHAN SINGH ..... Petitioner
Through: Mr.C.M. Sharma, Adv.
versus
HARISH KUMAR SETIA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
CM APPL. 2349/2021 (Exemption)
Allowed, subject to all just exceptions.
CM(M) 53/2021 & CM APPL. 2348/2021
1. This petition has been filed by the petitioner challenging the
order dated 06.11.2020 passed by the learned District Judge
(Commercial Court)-02, West District, Tis Hazari Courts, Delhi in
Suit, being CIV DJ No. 244/2020, filed by the respondent against the
petitioner, dismissing the application filed by the petitioner seeking
review of the orders dated 08.06.2020 and 29.07.2020 passed by the
learned Trial Court exercising powers under Order XVA of the Code
of Civil Procedure, 1908 and directing the petitioner to clear the
arrears of rent and to deposit future monthly rent.
2. The Suit has been filed by the respondent seeking recovery of
possession as also mesne profits on basis of a registered Lease Deed
CM (M) 53/2021 Page 1
dated 02.05.2019. The learned Trial Court by its order dated
08.06.2020 issued the following directions under Order XVA of the
Code of Civil Procedure, 1908: -
"5. Considering the fact that the defendant has been
served only on 26.05.2020 and also considering the
situation in which the case is being taken up during
the lockdown, I deem it appropriate to grant 30 days
time to the defendant for filing his written statement
as well as reply to the present application. In case
no reply is filed within 30 days i.e. by 26.06.2020,
the plaintiff shall be entitled to receive the rate of
rent as per registered rent agreement dated
02.05.2019 i.e. @ Rs.49,000/- per month w.e.f.
01.05.2019. The defendant is directed to clear the
arrears of rent @ Rs. 49,000/- per month for the
period 01.05.2019 till 31.03.2020 and user charges
at the same rate for the period 01.04.2020 till
30.06.2020 within a period of 6 months w.e.f.
01.07.2020, failing which, the same shall be
recoverable with simple interest @ 10% per annum.
The plaintiff shall also be entitled to receive user
charges @ Rs.49,000/- per month w.e.f. 01.07.2020
during the pendency of the suit.
6. In case the defendant files his written statement as
well as reply to the application under consideration
and wants a hearing on this application afresh, he is
directed to move an appropriate application to this
effect for alteration of this order. With these
directions, the application under consideration
stands disposed off. Matter be listed for further
proceedings before the concerned court/duty officer
on 02.07.2020."
3. On an application filed by the respondent, the said order was
modified by the order dated 29.07.2020, directing the petitioner herein
CM (M) 53/2021 Page 2
to clear 50% of arrears of rent and user charges within a week and rest
of the amount be cleared in equal monthly installments within a period
of six months.
4. The petitioner thereafter filed an application seeking review of
the orders passed by the learned Trial Court. Apart from claiming that
the petitioner had not been properly served in the petition and could
not be represented, the main ground for seeking review was as under: -
"d. That the defendant already had informed the
plaintiff to evict the tenanted shop and requested to
take key of the vacated shop but the plaintiff himself
insisted the defendant to remain in tenancy atleast
upto the period mentioned in the rent agreement and
only thereafter he will return the security amount to
the defendant, for which defendant became ready,
however the defendant had already bind up his
business, which fact was well within the knowledge
of plaintiff. But due to unfortunate pandemic of
Corona Virus, lockdown was started from 22-03-
2020 onwards and government strictly advice to
senior citizen not to go out of house and not to come
in touch of any person. As the answering defendant
is a senior citizen and aged about 70 years,
therefore the defendant did not go outside of his
house nor visited to the tenanted shop, however
plaintiff was informed telephonically and through
messenger to take possession of the tenanted shop
lying vacant but the plaintiff misuse the process of
law just to export money from the defendant and
filed the present suit under reply based on the false
and concocted facts. As such under the above said
facts and circumstances, which was beyond the
control of answering defendant, the defendant is not
liable to pay even a single penny either in account of
rent or otherwise to the plaintiff for the period of 01-
CM (M) 53/2021 Page 3
04-20 to 29-07-20 nor the plaintiff is entitle for the
same. Further the plaintiff is guilty of committing
wrong his own and thus he cannot be allowed to
take benefit of his own wrong.
XXXXX
e. That no amount is due against the defendant
either in account of arrear of rent as
alleged by the plaintiff or in any other
account rather the plaintiff is liable to
return the returnable security amount of
Rs.1,00,000/-, which is required to be
return to the defendant by the plaintiff
immediately at the time of vacating the
premises but the plaintiff did not do the
same till date."
5. The learned Trial Court has dismissed the said application by
way of the Impugned Order on ground of limitation as also on merit.
6. As far as the merit of the application is concerned, the learned
Trial Court has observed as under: -
"16 The mistake or error apparent on the face of
record is relevant for us. The impugned
order was passed on the registered rent
agreement executed between the parties
where monthly rent @ Rs.49,000/- was fixed
up till 31.03.2020 and defendant had paid
cheques towards payment of rent which got
dishonoured and legal notice dated
14.11.2019 was given and tenancy was
terminated w.e.f. 01.12.2019 and thereafter
defendant had approached the plaintiff and
settlement/lkrarnama was executed on
27.11.2019 whereby defendant undertaken
to clear the outstanding rent till March,
CM (M) 53/2021 Page 4
2020 and post dated cheques were given.
Cheques, however, for rent uptil April, 2019
were cleared and other cheques became
dishonoured towards outstanding rent.
Again fresh legal notice was issued
terminating the tenancy of the defendant
w.e.f.31.03.2020. Thereafter suit was filed.
Therefore rent agreement, dishonoured
cheques, returning memo and
settlement/lkrarnama were filed alongwith
the suit and on the basis of the same present
application under Order 15A CPC (as
application to Delhi) was moved on which
impugned order dated 08.06.2020 was
passed directing the defendant to clear the
arrear of rent and user charges within a
period of six months. Subsequently
modification, of the said order was sought
by the plaintiff claiming that the defendant
was already in arrear of rent and further six
months time was granted to him to clear the
arrear thereupon modification was allowed
to the effect that defendant shall clear 50%
of arrear of rent and user charges within a
week and rest of the amount shall be cleared
in equal monthly installments within six
months from today.
17 The applicant/defendant sought review of
the impugned orders claiming being senior
citizen, the defendant could not go out due to
Covid-19 and hence could not properly
defend and also on the basis of oral
agreement of returning Rs.9000/-, however,
he failed to point out any error apparent on
the face of record. Impugned orders were
passed on the basis of material placed on
record and therefore there is no error either
in the order dated 08.06.2020 or its
CM (M) 53/2021 Page 5
modification order dated 27.08.2020.
Accordingly the review petition is liable to
be rejected."
7. The learned counsel for the petitioner submits that the
application filed by the petitioner was not only in terms of the liberty
granted in the order dated 08.06.2020 by the learned Trial Court but
was also even otherwise within limitation considering that the
petitioner was supplied with a copy of the plaint and the documents
only on 11.08.2020. On merit, he submits that there was an oral
agreement between the parties that the rent shall stand reduced from
Rs.49,000/- to Rs. 40,000/-. He further submits that certain cheques
encashed by the respondent were not taken into account nor were
mentioned in the plaint.
8. I have considered the submissions made by the learned counsel
for the petitioner. In the order dated 22.07.2020, while considering the
application of the respondent seeking modification of the order dated
08.06.2020, the learned Trial Court observed as under:-
"It is submitted on behalf of defendant that
they need time to file reply to application for
modification of previous order dated 08.06.2020
and engage counsel, which is strongly opposed by
counsel for plaintiff. On the previous date as well,
despite having knowledge regarding hearing of the
case, none had joined the meeting/video
conferencing on behalf of the defendant and today
also they sought time for reply/arguments. The
application is of urgent nature. In view of it, let
counsel for plaintiff be heard and case be posted for
order on the application with liberty to defendant to
submit reply and written arguments on the e-mail id
CM (M) 53/2021 Page 6
of the reader i.e. [email protected]
three days prior to next date of hearing with
advance copy to counsel for plaintiff through e-mail
i.e. [email protected] and
[email protected]"
9. Thereafter, in the order dated 29.07.2020, the learned Trial
Court observed as under:-
"I am in agreement with the Counsel for the plaintiff
that sufficient time has already been granted for
arguments on the modification as reflected in the
order sheets."
10. The learned Trial Court then passed a separate order on the
same date modifying the direction under Order XVA of the CPC. The
said order has not been placed on record by the petitioner. Therefore,
this court cannot give its opinion on the validity of the same. Even
otherwise, the direction to pay the rent has been passed on basis of the
registered Lease Deed. The plea of an oral understanding reducing the
rent, cannot be accepted. I, therefore, find no merit in the present
petition.
11. As far as the submission of the petitioner that certain cheques
issued by the petitioner have been duly encashed by the respondent,
the petitioner shall be entitled to claim benefit of such payment while
making compliance with the orders passed by the learned Trial Court.
12. It is further clarified that any amount paid by the petitioner in
compliance with the orders passed by the learned Trial Court, shall be
subject to the outcome of the Suit and in case of success of the
CM (M) 53/2021 Page 7
petitioner in the suit, shall liable to be refunded to the petitioner with
interest.
13. The petition is disposed of in the above terms. There shall be no
order as to cost.
NAVIN CHAWLA, J
JANUARY 22, 2021/rv
CM (M) 53/2021 Page 8
