Delhi High Court
J.K. Lakshmi Cement Ltd vs Master Avishkar & Anr. on 24 May, 2022
$~2 (SB) to 6 (SB)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th May, 2022
+ RSA 2/2022, CM APPL. 717/2022 & REVIEW PET. 70/2022
J.K. LAKSHMI CEMENT LTD. ..... Appellant
Through: Mr. Dayan Krishnan, Sr. Advocate
with Mr. Jai Sahai Endlaw, Mr. Sukrit
Seth & Mr. Ashish Kumar, Advocate.
(M:8989810577)
versus
MASTER AVISHKAR & ANR. ..... Respondents
Through: Mr. R.K. Saini & Mr. Ankit Singh,
Advocates (M-8989004412)
3 (SB) WITH
+ RSA 3/2022, CM APPL. 725/2022 & REVIEW PET. 71/2022
J.K. LAKSHMI CEMENT LTD. ..... Appellant
Through: Mr. Dayan Krishnan, Sr. Advocate
with Mr. Jai Sahai Endlaw, Mr. Sukrit
Seth & Mr. Ashish Kumar, Advocate.
versus
MANISH GULATI & ORS. ..... Respondents
Through: Mr. R.K. Saini & Mr. Ankit Singh,
Advocates.
4 (SB) WITH
+ RSA 4/2022, CM APPL. 728/2022 & REVIEW PET. 72/2022
J.K. LAKSHMI CEMENT LTD. ..... Appellant
Through: Mr. Dayan Krishnan, Sr. Advocate
with Mr. Jai Sahai Endlaw, Mr. Sukrit
Seth & Mr. Ashish Kumar, Advocate.
versus
HARJINDER PAL SINGH & ANR. ..... Respondents
Through: Mr. R.K. Saini & Mr. Ankit Singh,
Signature Not Verified
Digitally Signed
By:DEVANSHU
JOSHI
Advocates.
5 (SB) WITH
+ RSA 5/2022, CM APPL. 733/2022 & REVIEW PET. 73/2022
J.K. LAKSHMI CEMENT LTD. ..... Appellant
Through: Mr. Dayan Krishnan, Sr. Advocate
with Mr. Jai Sahai Endlaw, Mr. Sukrit
Seth & Mr. Ashish Kumar, Advocate.
versus
VISHAL TAYAL ..... Respondent
Through: Mr. R.K. Saini & Mr. Ankit Singh,
Advocates.
6 (SB) AND
+ RSA 6/2022, CM APPL. 748/2022 & REVIEW PET. 74/2022
J.K. LAKSHMI CEMENT LTD. ..... Appellant
Through: Mr. Dayan Krishnan, Sr. Advocate
with Mr. Jai Sahai Endlaw, Mr. Sukrit
Seth & Mr. Ashish Kumar, Advocate.
versus
MAN MOHAN TAYAL& ANR. ..... Respondents
Through: Mr. R.K. Saini & Mr. Ankit Singh,
Advocates.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done through hybrid mode.
2. These are review petitions seeking review of the order dated 6th
January, 2022 passed in the present second appeals. The said second appeals
had arisen out of judgments passed by the Appellate Court in October, 2021,
partly allowing the appeals against the Trial Court's judgments/decrees
dated 31st May, 2018. The said judgments/decrees had been passed in suits
filed by the Respondents/Plaintiffs/Review Applicants (hereinafter
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By:DEVANSHU
JOSHI
"Plaintiffs") against the Appellant/Defendant (hereinafter "Defendant") for
recovery of possession and recovery of money in respect of various suit
properties in Bahadur Shah Zafar Marg, New Delhi. In effect, the Defendant
was directed to pay use and occupation charges in respect of the suit
properties, except payment of enhanced house tax. This was challenged by
the Defendant in the present second appeals.
3. Vide order dated 6th January, 2022, in these second appeals, this
Court had observed as under:
"6. The submission of Mr. Dayan Krishnan, ld. Senior
Counsel appearing for the Appellant is that there is a
substantial question of law which arises in this matter.
He relies upon the registered lease deeds dated 23rd
August, 1994 which are almost on identical terms in
each of the appeals. According to the appellant, clause
4 of the lease deeds prescribed for automatic renewal
of lease till a period of 11 years from the date of
execution of the lease, i.e., 24th August 1994.
7. Ld. Sr. counsel submits that Clause 4, as it reads,
would mean that the lease cannot be terminated prior
to the expiry of 11 years and the renewal would be
automatic during this period. It is only after the period
of expiry of 11 years, if there is no lease executed
between the parties on mutual agreement, that the
tenant could have been considered as an unauthorised
occupant. He relies upon Section 53 A of the Transfer
of Property Act, 1882 to argue that the said plea of
part performance can be raised as a defence in a suit
for possession as held by the Supreme Court in
Maneklal Mansukhbhai V. Hormusji Jantshedji
Ginwalla and Sons, AIR 1950 SCC 1.
8. Advance copy of this petition is stated to have been
served upon Respondents and Mr. G.D. Chopra
learned counsel for the Respondents is stated to have
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JOSHI
also joined the virtual court in the morning. However,
thereafter when contacted by the court staff he has
informed the Court Master that he does not have
instructions to appear today in these matters. Clause 4
of the lease deed reads as under:
"4. That the present lease is for a period of
three years commencing from 14th January,
1994 and it can be renewed by the lessee for
further two period of three years successively
and then for two years, after increasing the
rent by 20% (twenty percent) on the last rent
paid each time the lease is renewed for three
years/two years. And fresh lease deed will be
executed at each such time. Further
extension, if any, after the expiry of II years
shall be only on the terms and conditions as
may be mutually agreed upon between the
lessor and the lessee at that time and a fresh
lease deed will be executed."
In the light of the above clause, which provides for the
term of the lease, the issue raised by Ld. Sr. counsel
prima facie deserves consideration.
9. Issue notice to the Respondents, returnable on 24th
March, 2022 before the Registrar. Additionally, a copy
of this order be sent to Mr. G.D.Chopra by the Id.
Counsel for the Appellant. On the next date,
submissions would be heard on behalf of both parties
as to the substantial question of law, if any, that are to
be framed in this matter.
10. Subject to deposit of Rs.20 lakhs in each of the five
appeals, the impugned judgments/decrees shall remain
stayed. The deposit shall be made in favour of the
Registrar General within four weeks."
4. As per the above order, on the basis of preliminary submissions which
were made, the Court had considered that there may be a substantial
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By:DEVANSHU
JOSHI
question of law arising in the present second appeals. Accordingly, the Court
had directed deposit of a sum of Rs. 20,00,000/- in each of the five second
appeals, for granting stay of the impugned judgements/decrees.
5. The present review petitions have been filed specifically seeking
review of the condition of deposit of Rs.20,00,000/- imposed vide the said
order dated 6th January, 2022. The submission of Mr. Saini, ld. Counsel for
the Plaintiffs is that under Order XLI Rule 5 CPC, three primary conditions
have to be satisfied for grant of stay of execution of the impugned decrees:
(i) the entire decretal amount ought to be deposited before the Court
or security,
(ii) sufficient cause is to be shown to the Court, and even in that case,
(iii) substantial loss has to be shown to be caused to the Defendant
unless the stay is granted.
6. Mr. Saini, ld. counsel, submits that the Defendant was a tenant who
continued in unauthorized occupation of the suit properties, after termination
of the lease. Accordingly, the suits were decreed for mesne profits. In order
to stay the said decrees, the entire mesne profits along with the interest
which was granted in favour of the Plaintiffs ought to be directed to be
deposited.
7. On the other hand, Mr. Dayan Krishnan, ld. Sr. Counsel for the
Defendant, submits that as per the lease deeds dated 23rd August, 1994
which are almost on identical terms in each of the appeals, the Defendant
was entitled to retain the premises for a total period of 11 years and it was
only after the expiry of the 11 year period, that mutual terms and conditions
had to be further agreed upon between the parties. He submits that as per
Clause 4 of the lease deeds, the initial period of lease was for three years
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JOSHI
and, thereafter, for every two years, there would be an increase in rent which
was specified in the lease deeds. On the strength of this Clause in the lease
deeds, he submits that under Section 53A of the Transfer of Property Act,
1882, the lease could not have been terminated prior to the expiry of 11
years, and hence the Defendant would not have been an unauthorised
occupant.
8. He thus submits that the Defendant has made out a substantial
question of law, in respect of the grant of mense profits, which deserves to
be adjudicated upon by this Court. Reliance is placed upon the Supreme
Court decisions in Maneklal Mansukhbhai v. Hormusji Jantshedji
Ginwalla and Sons, AIR 1950 SCC 1 and in Union of India v. K.C.
Sharma & Others [Civil Appeal No.9049-9053 of 2011, decided on 14th
August, 2020].
9. Mr. Saini, ld. Counsel for the Plaintiffs, relies upon the judgement in
Hardesh Ores (P) Ltd. v. Hede and Company [(2007) 5 SCC 614] to argue
that there is no automatic renewal of the lease.
10. Heard. The Court, at this stage, is not considering the merits of the
matter, but only as to whether the order dated 6th January, 2022 deserves to
be reviewed or not. After hearing both parties, the Court has given its
thoughtful consideration.
11. The basic facts in this case are that the Defendant was a lessee as per
the lease deeds dated 23rd August, 1994, in flats located on Bahadur Shah
Zafar Marg, which is a prime property in New Delhi. As per the Defendant,
it was entitled to automatic renewal of the lease deeds while as per the
Plaintiffs, there was no automatic renewal of lease and the same could be
terminated. The Trial Court has held that the Defendant was an unauthorised
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JOSHI
occupant, after the termination of the lease deeds and has, accordingly,
granted mesne profits in the following terms:
""In view of above discussion, the suit of the plaintiff is
decreed on the following terms:-
Plaintiff is entitled to relief of mesne profit/damage for
the use and occupation of the suit property pursuant to
the termination of the tenancy vide notice under Section
106 TPA dt. 21.07.1998 on the following rates i.e.
-Upto December, 2001 @ Rs. 125 per sq ft.
-From January, 2002
to December, 2002 @ Rs. 100/- per sq ft.
-From January, 2003
to 25.09.2004 @ Rs. 80/- per sq. ft.
The above amount so calculated is to be reduced by part
payment made by defendant after termination of tenancy
for the relevant period. Plaintiff is entitled to interest @
9% on the recoverable amount after deduction of the
payment made by the defendant from the date it becomes
due.
Plaintiff is further entitled to Municipal Taxes as per Ex.
PW-1/14 to Ex. PW-1/19. Plaintiff is entitled to the cost
of the suit. Plaintiff is directed to file deficient Court fees
for the purpose of preparation of decree. File be
consigned to Record Room.
Announced in the Open Court today i.e.
31.05.2018.""
12. This order was appealed against before the Appellate Court and the
Appellate Court partly upheld the same, except payment of house tax.
13. This Court notes that the question as to whether the Defendant was
entitled to automatic renewal of the lease and whether it is an unauthorised
occupant would be adjudicated upon, only upon the question of law raised
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By:DEVANSHU
JOSHI
under Section 53A being adjudicated by the Court. The parties confirm that
the possession of the premises has already been handed over by the
Defendant to the Plaintiffs. It is also confirmed that for the entire period
during which the Defendant was in occupation of the premises, the admitted
rent amounts in terms of the lease deeds have also been paid.
14. Thus, the only question is whether the mesne profits would be liable
to be paid or not. For this purpose, the Court prima facie considered the
matter on 6th January, 2022. As per the Plaintiffs, the total amount in terms
of the decree if calculated would come to a sum of Rs.2,89,91,000/- as on
the date of decree, and along with the interest, the amount would be
Rs.3,10,74,000/-, upto February, 2022. This Court had already directed
deposit of a sum of Rs.1,00,00,000/- (Rs.20,00,000/- in each of the appeals).
The Defendant is also currently a tenant of two further flats belonging to the
Plaintiffs, which have been leased out by the Plaintiffs to the Defendant,
after the passing of the decrees.
15. It is the settled position of law that the Court has the discretion to
direct deposit of a part of or the entire decretal amount, under Order XLI
Rule 5 CPC. The same has been upheld by a Division Bench of the Gujarat
High Court in Manibhai & Brothers v/s Birla Cellulosic, [Civil Application
(For Orders) No. 11793 of 2015 in First Appeal No. 3176 of 2012, decided
on 22nd January, 2016] as below:
12. Apart from there being a long-standing
practice, in the opinion of this court, the power to
permit withdrawal of the amount deposited by the
judgment-debtor for stay of execution of the
decree or order is traceable to the inherent
powers vested in the court under section 151 of
the Code. Under rule 5 of Order XLI of the Code,
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JOSHI
the court makes an order laying down conditions
for stay of execution of the decree, one of which
may be to deposit the whole or part of the decretal
amount. The application for withdrawal of such
amount though could be decided simultaneously
with an application under rule 5 of Order XLI, the
order passed on such application would always be
subject to compliance with the condition for
deposit of the amount. Therefore, while the court
is not precluded from passing a consolidated
order while deciding an application under rule 5
of Order XLI of the Code, at the same time, there
is no bar against an application for withdrawal
being moved after the amount is deposited
inasmuch as, such order is an order under section
151 of the Code and not Order XLI rule 5 thereof.
16. A similar view is also taken by the Supreme Court in Pam
Developments Private Ltd. v. State of West Bengal, AIR 2019 SC 3937.
Various other judgements have been cited on the merits of the matter. This
Court is not at this stage considering the merits as to whether any substantial
question of law is liable to be framed in this matter or not.
17. Thus, in the overall facts and circumstances of the case, the Court is
of the view that the Plaintiffs' interest has been adequately secured -
(i) by the deposit of Rs.1,00,00,000/- ;
(ii) the standing of the Defendant being a well-established company;
and
(iii) the fact that the Defendant-company is also a current tenant of the
Plaintiffs for two further flats located in the same area i.e., Bahadur
Shah Zafar Marg, New Delhi.
18. In these circumstances, without going into the merits of the question
of law which is raised by the Defendant which is opposed by the Plaintiffs,
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JOSHI
this Court is of the opinion that no review is called for of the order dated 6th
January, 2022.
19. The review petitions are accordingly rejected.
20. List these second appeals before the regular Roster Bench, on 6th July,
2022.
PRATHIBA M. SINGH
JUDGE
MAY 24, 2022
dj/ms
Signature Not Verified
Digitally Signed
By:DEVANSHU
JOSHI
