Siddhatha Singh vs Ajit Singh Bawa (Deceased) ...
2022 Latest Caselaw 2120 Del

                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                  Reserved on: July 05, 2022
                                                          Pronouned on : July 12, 2022
                          +     RFA(COMM) 40/2022 & CM APPL.26156-158/2022
                                SIDDHATHA SINGH                    ..... APPELLANT
                                              Through: Mr. Harsh Gokhale, Advocate.
                                              versus
                                AJIT SINGH BAWA (DECEASED)
                                THROUGH LRS                   ..... RESPONDENT
                                              Through: None.
                                CORAM:
                                HON'BLE MR. JUSTICE SURESH KUMAR KAIT
                                HON'BLE MR. JUSTICE SAURABH BANERJEE

                                                       JUDGMENT

SAURABH BANERJEE, J.

1. Appellant-tenant, the original defendant before the learned trial court

(hereinafter referred as "Appellant"), has preferred the instant appeal

against the impugned judgement dated 19.02.2022, whereby, the learned

trial court has allowed the application under Order XIII A of The Code of

Civil Procedure, 1908 (hereinafter referred as "CPC") read with Section

151, CPC read with Section 3 of The Commercial Courts Act, 2015

(hereinafter collectively referred as "Order XIII A application") filed by

the respondent-landlord, the original plaintiff before the learned trial court

(hereinafter referred as "Respondent") and decreed the suit in favour of the

respondent and against the appellant.

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20

2. Succinctly put, the respondent instituted a suit for possession, arrears

of rent along with mesne profits (hereinafter referred to as "suit") against the

appellant, inter alia, claiming the following reliefs:-

"3.1. Pass an Order/ Judgment/ Decree in favour of the Plaintiff and against the Defendant directing the Defendant to vacate the said Property at 19F, Basant Lok, Vasant Vihar, New Delhi 110057; super area ad-measuring 1000 sq. ft. and deliver the peaceful, vacant possession to the Plaintiff;

3.2. Pass an Order/Judgment/Decree in favour of the Plaintiff and against the Defendant directing the Defendant to make a payment of INR 94,215.80/- [Indian Rupees Ninety Four Thousand Two Hundred Fifteen and Eighty Paise Only] as arrears of rent for the period of 23.05.2020 to 08.07.2020;

3.3. Pass an Order/ Judgment/ Decree in favour of the Plaintiff and against the Defendant directing the Defendant to pay liquidated damages to the Plaintiff for unauthorized occupancy of the Said Property @10000/- [Indian Rupees Ten Thousand Only];

3.4. Pass an Order/ Judgment/ Decree in favour of the Plaintiff and against the Defendant directing the Defendant to pay all dues (water, electricity, gas, maintenance and service charges) pertaining to the said Property, up till the date of delivering actual, physical and legal possession of the said Property to the Plaintiff;

3.5. Pass an Order/ Judgment/ Decree in favour of the Plaintiff and against the Defendant thereby restricting the Defendant from transferring/ alienating/ encumbering/ creating third party rights or parting with possession of the Said Property at 19F, Basant Lok, Vasant Vihar, New Delhi 110057."

3. Being the absolute owner of the commercial property bearing No. 19

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"premises"), the respondent had given the said premises on lease to the

appellant for it to carry out authorised commercial activity like running a spa

or any other activity vide a registered Lease Deed dated 18.12.2010

(hereinafter referred as "Lease Deed") for a period of 15 years, commencing

from 15.05.2010 to 14.05.2025 as per the terms and conditions set out

therein.

4. It was during the subsistence of the aforesaid Lease Deed, that the

unfortunate outbreak and spread of COVID-19 pandemic across India

caused suffering to the public, including the appellant, primarily during the

then prevailing lockdown period since and from March, 2020 for the

ensuing months. This resulted in non payment of rent in compliance of the

Lease Deed by the appellant to the respondent which in turn resulted in the

respondent issuing legal notice(s) on 20.04.2020, 11.05.2020 and

28.05.2020 to the appellant calling upon him to pay the monthly rent as per

the Lease Deed. So much so, in one such legal notice the respondent

voluntarily offered to suspend the obligation of the appellant to pay the

monthly rent for a period of 60 days with effect from 23.03.2020 to

22.05.2020 on compassionate grounds. However, the appellant never

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 responded to the aforesaid offer and thus never availed of the same and

instead chose to remain in possession of the premises, till termination of the

Lease Deed by the respondent, without exercising his right to terminate the

Lease Deed.

5. Facing the lull from the appellant, the respondent was constrained to

terminate the Lease Deed by issuing a termination notice dated 07.06.2020.

It was then that the appellant vide its reply dated 10.06.2020 took the plea of

„force majeure‟ contained in clause 14 of the Lease Deed and denied its

liability.

6. However as the appellant was not relenting to comply with the

mandatory provisions stipulated in the Lease Deed, the same led to an

institution of a suit by the respondent against the appellant before the

learned trial court. During pendency of the said suit and before framing of

the issues therein, the respondent filed an Order XIII A application pleading

that in terms of clause 7 of the Lease Deed the appellant was permitted to

use the premises in question for carrying on authorised commercial activity

like running a spa or any other activity deemed fit or proper by it during the

period of lockdown in dispute and further that in terms of clause 2 of the

same Lease Deed the premises was never rendered „unfit for use‟ during the

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 period of lockdown in dispute.

7. After completion of pleadings in the aforesaid Order XIIIA

application the learned trial court heard both the counsel for the parties and

took their respective written synopsis on record. Upon consideration

thereof, the learned trial court, after discussing the mechanism to be

followed in an Order XIII A application and placing reliance upon various

judgements came to the conclusion that the parties were bound by the terms

of the contract i.e. Lease Deed executed inter-se and that the appellant

always retained the possession of the premises during the period of

lockdown in dispute without vacating the same and that the said premises

was always „fit for use‟ during the said period of lockdown in dispute and

also that the appellant was always free to carry out any commercial activity

permissible by the authorities, not limited to running of a spa.

8. In view thereof, the learned trial court came to conclusion that as the

appellant had failed to establish any ground of defence, he had no real

prospects to defend the claim(s) of the respondent and thus allowed the

Order XIII A application vide its impugned judgement.

9. Being aggrieved, the appellant has challenged the impugned

judgement on various grounds but primarily agitated and pressed three basic

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 grounds. Firstly the learned counsel for the appellant sought to contend that

the learned trial court had overlooked the fact that the premises was „unfit to

use‟ alleging thereby that because of the then prevailing lockdown situation

during the period in dispute and passing of different circular(s) issued by

various Government(s) from time to time the appellant was unable to carry

on the activity of running a Spa from the said premises.

10. Secondly, the learned counsel for the appellant sought to contend that

the learned trial court had wrongly applied the provision of Section 108(e)

of the Transfer of Property Act, 1882 even though the parties were

admittedly bound by the terms of the Lease Deed executed inter-se and that

the Transfer of Property Act was not applicable to the facts and

circumstances of the case.

11. Thirdly, the learned counsel for the appellant sought to contend that as

there was no commercial use of the premises permissible and/ or possible

during the aforesaid period in dispute before the learned trial court, the

respondent was not entitled to rent for the said period.

12. Before dwelling into the factual aspects of the case and the arguments

addressed by the learned counsel for the appellant, this Court feels that it

would be in the interest of things to pen down some facts about the

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 introduction, emergence and purpose of Order XIII A, CPC:

12.1 The said provision of Order XIII A was introduced in the CPC by way

of an amendment in the year 2015 with respect to all kinds of commercial

disputes only. The said Order XIII A, CPC is a provision enabling the

courts to take up and decide claim(s) in the commercial disputes without

recording oral evidence, i.e. without following the ordinary procedure to be

adopted and followed in an ordinary suit. For this, it is mandatory for all the

parties involved to mandatorily follow all the stipulations contained in Order

XIII A, CPC whereby, during the pendency of the proceedings, i.e. a suit, all

the parties to the dispute can apply for a summary judgment at any stage

after the service of the summons but prior to the framing of the issues.

While deciding the said application for passing a summary judgment under

Order XIII A, unlike the provision of O XII rule 6, CPC, there need not be

an „admission‟ and it is not a pre-condition. Two fundamental grounds

which have to be satisfied while deciding an Order XIII A application are

that a party has to show that the other party has no real prospect of

succeeding in and/ or defending the claim and that there is no other

compelling reason as to why the claim should not be disposed of before

commencement of trial, i.e. recording of oral evidence.

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 12.2. In an Order XIII A application, the applicant has to mandatorily

contain the matters relating to a statement that firstly it is for passing of a

summary judgment and secondly it must precisely disclose all material facts

and identify the point of law, if any and thirdly if any reliance upon any

documentary evidence is placed then it should contain and include such

documentary evidence and fourthly further identify the relevant content

thereof on which the reliance is placed upon and fifthly it must contain the

reason why there are no real prospects of succeeding and/ or defending the

claim, as the case may be and sixthly it must contain the specific relief

sought and lastly briefly state the grounds for seeking such relief.

Additionally the Order XIII A application may also contain any other

relevant matters.

12.3. Upon the hearing fixed for summary judgment, the non-applicant has

to be given at least thirty days notice containing all the details qua the date

fixed for the hearing and the claim proposed to be decided at the time of the

said hearing. Thereafter, the non-applicant may, within thirty days of the

receipt of notice of application of summary judgment or notice of hearing

(whichever is earlier), file a reply, mandatorily containing the matters firstly

disclosing all the material facts and secondly identifying the point of law, if

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 any and thirdly stating the reasons why the relief sought by the applicant

should not be granted and forthly if any reliance upon any documentary

evidence is placed then it should contain and include such documentary

evidence and fifthly further identifying the relevant content thereof on which

the reliance is placed upon and sixthly stating the reason why there are no

real prospects of succeeding and/ or defending the claim, as the case may be

and seventhly concisely stating the issues that should be framed for trial and

eighthly identifying what further evidence shall be brought on record at trial

that could not be brought on record at the stage of summary judgment and

lastly stating why, in light of the evidence or material on record if any, the

application for passing a summary judgment should not be proceeded with,

in addition to other relevant matters.

12.4. Furthermore and if the non-applicant wishes to rely upon additional

documentary evidence during the hearing then it must file such documentary

evidence and serve copies of such documentary evidence on every other

party to the application at least fifteen days prior to the date of the hearing.

Similarly, if the applicant for summary judgment wishes to rely on

documentary evidence in reply to the documentary evidence by the non-

applicant, the applicant must file such documentary evidence in reply and

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least five days prior to the date of the hearing. As further stipulated,

notwithstanding any of the aforesaid, no documentary evidence shall be

required to be filed if such documentary evidence has already been filed or

served upon a party on whom it has already been served.

13. On a careful analysis of the aforesaid, it emerges that the provision of

Order XIII A, CPC has been specifically introduced by the legislature so as

to adjudicate and decide the issue(s) at the threshold itself without

proceeding to the unnecessary rigours of a prolongated trial and to save

time, effort and money by making it more convenient and expeditious for all

concerned, be it the court(s) and/ or the parties involved. Furthermore, an

Order XIII A application can be allowed and a court can proceed to pass a

summary judgment if a party has a real prospect of succeeding and/ or

defending in the claim and there is no real purpose of proceeding to trial, i.e.

recording oral evidence.

14. This Court, upon hearing the learned counsel for the appellant at

length and carefully perusing all the documents on record before it, finds

that the respondent was able to make out a case showing „real reason‟ and a

„real justification‟ in his favour before the learned trial court to consider in

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 order to invoke the force majeure clause and all the aforesaid requisites were

squarely covered by the parties in the Order XIII A application. Another

vital aspect to be noted is that all the grounds raised and adjudicated by the

appellant before this Court had already been raised and agitated before the

learned trial court and under the garb of the instant appeal, the learned

counsel for the appellant is merely trying to reagitate the same issues in the

form of grounds which have all been heard, taken note of and decided by the

learned trial court in the impugned judgment once again by simply giving a

different flavour to them.

15. Be that as it may, on the basis of the documentary evidence on record

and the arguments addressed by the learned counsel for the appellant this

Court is of the opinion that it is undistinguishable that there is a relationship

of respondent-landlord and the appellant-tenant inter-se the parties and that

they are bound by the contractual terms and conditions set out in the Lease

Deed executed inter-se and that as the appellant neither chose to exercise his

right to terminate the Lease Deed nor chose to vacate the said premises at

any point of time until termination thereof by the respondent, he was always

in possession of the said premises all throughout the period of lockdown in

dispute. As such, there is no such clause in the Lease Deed by virtue

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 whereof the appellant could claim non-payment of rent to the respondent,

however, he was bound to continue paying the rent in terms of the clear

stipulation contained in the Lease Deed. Thus, the appellant was clearly

guilty of breach of the Lease Deed and as the respondent was denied the

receipt of its legitimate dues and had to suffer losses during that period, he

was well and truly liable to pay the lease rentals as per the Lease Deed

alongwith interest thereon for the period in issue as rightly held by the

learned trial court in the impugned judgment.

16. Furthermore, as per the own contention of the appellant, though the

premises was not in use due to the then prevailing lockdown but admittedly

as there was never complete destruction thereof nor it was ever unfit for use

at any point of time. The premises were always fit to use and in terms of the

Lease Deed, the appellant was free to carry on any kind of commercial

activity barring running a Spa. Thus, it could be of no avail to the appellant

to not pay the rent in terms of the Lease Deed. It is a well settled law that

temporary non-use of premises during the lock down period cannot be

construed as rendering either the stipulated term of the Lease Deed void or

giving any benefit to the tenant i.e. appellant to claim suspension of rent on

the ground of mere non-use thereof.

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20

17. Lastly, the argument advanced by the learned counsel of the appellant

qua the wrongful application of the provision of Section 108(e) of The

Transfer of Property Act, 1882 is totally incorrect and wrong as the learned

trial court has not applied the said provision anywhere in the impugned

judgment. It is worthwhile to note that the learned counsel for the appellant

failed to show any averment qua the implementation of the said Section

108(e) of The Transfer of Property Act, 1882 by the learned trial court in the

impugned judgment. Even otherwise, admittedly the parties had executed a

Lease Deed inter-se themselves and thus were admittedly bound by the

terms thereof. As such and even otherwise, said Section 108(e) of The

Transfer of Property Act, 1882 is inapplicable to the facts of the instant case.

The said argument further falls flat on its face in view of the judgement

rendered by the Hon‟ble Supreme Court in re.: Energy Watchdog v. Central

Electricity Regulatory Commission & Ors.: (2017) 14 SCC 80 wherein it

has been held that in case the contract itself contain an express or implied

term relating to force majeure condition the same shall be governed by

Section 32 of the Contract Act 1872 and the fact that the learned trial court

has, rightly, placed reliance upon the Lease Deed executed inter-se the

parties. It is a settled law that if a contract contains a clause providing for

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20 some sort of waiver and/ or suspension of rent, it is only then that the tenant

could claim the same. In the instant case as the appellant willingly chose to

retain the possession of the premises and as there was no clause giving any

respite to it, the appellant was bound to pay the monthly charges to the

respondent in terms of the clear stipulations contained in the Lease Deed.

18. Considering all the aforesaid and taking the overall facts and

circumstances and position of law, in response to the three contentions

(supra) raised by the learned counsel for the appellant, this Court finds that,

as noted hereinabove, they all have been already heard, taken note of and

decided by the learned trial court vide the impugned judgment. In view

thereof, this Court finds no infirmity, perversity or illegality in the impugned

judgment passed by the learned trial court which would require interference

in the present appeal.

19. Appeal is accordingly dismissed.

(SAURABH BANERJEE) JUDGE

(SURESH KUMAR KAIT) JUDGE JULY 12, 2022/So

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Digitally Signed By:BABLOO SHAH Signing Date:12.07.2022 19:09:20