M/S Queen Distillers & Bottlers Pvt. Ltd vs M/S Kuldip Industrial Corporation And ...
2024 Latest Caselaw 10978 P&H

Punjab-Haryana High Court

M/S Queen Distillers & Bottlers Pvt. Ltd vs M/S Kuldip Industrial Corporation And ... on 8 July, 2024

                                     Neutral Citation No:=2024:PHHC:084258

 CR-3644
    3644 of 2024 (O&M)          1




      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH


                                                       CR-3644
                                                          3644 of 2024 (O&M)
                                                       Decided on: 08.07.2024

M/s Queen Distillers and Bottlers Pvt. Ltd. Works


                                                              ...Petitioner

                                              Versus

M/s Kuldip Industrial Corporation and others


                                                             ...Respondents



CORAM: HON'BLE MRS JUSTICE RITU TAGORE

Present:    Mr. Sunil Chadha, Senior Advocate with
            Mr. Bikramjit
                     ramjit Singh Patwalia, Advocate
            for the petitioner.

            Mr. Ashish Aggarwal, Senior Advocate with
            Ms. Aashna Aggarwal, Advocate
            for the caveator/respondents.
                         ****

RITU TAGORE, TAGORE J.

1. This civil revision petition is filed under Article 227 of the

Constitution of India, challenging challeng the order dated 22.04.2024 (Annexure P P--

1) passed by learned Rent Controller, Chandigarh in Rent P Petition etition No.369 of

2022, regarding provisional assessment of rent rent, as well as the order dated

31.05.2024 (Annexure P-2), P passed by learned Appellate Authority,

Chandigarh, in Rent Appeal

2024, dismissing the appeal,, filed

under Section 15 of the East Punjab Rent Restriction Act, 1949 (in shor shortt

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referred to as the Act, 1949), 1949) against the order of provisional assessment of

rent dated 22.04.2024 passed by learned Rent Controller Controller.

2. At the outset, it is expedient to address the objection regarding

the maintainability of revision petition fil filed ed under Article 227 of the

Constitution of India, India as opposed to Section 15 (5) of the Rent Act, 1949,

asraised raised by learned counsel for the respondent respondents/caveator.

/caveator. Precisely, it is

urged that, given the existence of a specific provision under Section 15 (5)

enacted by the Legislation, filing of a revision vision under Article 227 of the

Constitution of India, India is not maintainable. Con Conversely, learned counsel for

the petitioner submits that nomenclature of the provision does not affect ffect the

maintainability of revision.

revision The substance of challenge is what assumes

significance. It is urged that revision-

revision petition is maintainable under Article

227 of the Constitution of India, India a constitutional remedy remedy, provided under the

Constitution, with reference to the observation made by this Court in Boota

Singh (Major) and others Vs. Roshan Lal and others, 1970 R.C.R.(Rent)

895.

3. Section 15 of the Rent Act, 1949 deals with vesting esting of

appellate authority on officers by State Government Government. The relevant elevant

provisions of the Section are extracted as below: -

"15.

15. Vesting of appellate authority on officers by State Government.

(1)(a)-------------

(b)----------

(2) -------------------

(3)------------------------

(4)The The decision of the appellate authority and subject only to such decision, an order of the controller shall be final and shall not be liable to be called in question in any Court of Law [except as pr provided in sub--

Section (5) of this Section.]

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(5)[[ The High Court may, at any time on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceeding taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.]fit.]"

4. The plain reading of sub clause (5) of Secti Section 15 provides that

any aggrieved party, party on the application, or High Court on its own motion,

can call for and examine the records relating to any order passed or

proceedings taken under the Act for the purpose of satisfaction as to the

legality and propriety propriety of such order passed or proceedings taken and may

pass such order in relation thereto as it may deem fit. In Boota Singh

(supra), a revision petition was filed under Section 15 (5) of the Act, against

the order passed by learned Appellate Authority Authority, allowing amendment of

written ritten statement under Order 6 Rule Rule 17 CPC. An objection was raised that

a revision against the order does not lie before the High Court Court, as such, an

order was not an order passed under the Rent Act within the expression used

in sub-Section Section 5 of Section 15. This Court, after deliberation deliberation, observed that

revision against such an order lies in the High Court Court, and further observed

that even otherwise, otherwise this Court is entitled entitled, in exercise of its original

jurisdiction under Article 227 of the the Constitution Constitution, to set aside any order

passed by subordinate Court or Tribunal within its jurisdiction jurisdiction, if an order is

found to be wholly w unsustainable.

5. Regarding the objection raised by the respondents on the

maintainability of revision petition under Article 227 of the Constitution of

India, in my considered opinion, opinion the remedy under Article 227 of the

Constitution of India is indeed available to the petitioner. This constitutional

remedy cannot be negated on such technical objection objections. The nomenclature of

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a petition should not be the focal point; rather, it is the essence of the

petition that must be considered. In a recent judgment titled in Raj Shri

Agarwal @ Ram Shri Agarwal and another vs. Sudheer Mohan and

others, Civil Appeal No.7266 No.7266 of 2022 (arising out of SLP (c) 14102/2022),

the High Court dismissed the writ petition, preferred under Article 227 of the

Constitution of India, challenging the order of the learned trial Court

dismissing an application under Order 6 Rule 17 CPC CPC, by observing that

writ petition was not maintainable, as remedy by way of revision under

Section 115 CPC was available to the petitioner. In the appeal, Hon'ble the

Supreme Court of India observed that while normal view taken in catena of

decisions that a petition tition under Article 227 of Constitution of India would not

lie where a remedy under Section 115 CPC is available, but this does not

imply that a writ petition under Article 227 of Constitution of India shall not

be maintainable at all. It was further observed rved that rremedy emedy under Article 227

of Constitution of India is a constitutional remedy which cannot be taken

away. Although the High Court may choose not to exercise its discretion

under Article 227 of the Constitution of India, in a given case, for the

aggrieved party has efficacious alternate remedy remedy. However, to say that the

petition under Article 227 of the Constitution of India shall not be

maintainable at all is not tenable. It was further observed that the High Court

ought to have converted the writ petition into a revision petition under

Section 115 CPC and should have decided the matter on its merits in

accordance with law. In light of the above legal position cl clarified by Hon'ble

the Supreme Court of India, the objection raised by respondents regarding ng

maintainability of the writ petition under Article 227 of the Constitution of

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India is without substance.

substance Treating reating this petition as maintainable, the

objection stands answered against the respondent respondents.

6. This now brings me to the merits of the revision revision- petition. The

counsel for the petitioner contends that petitioner is in the business of

Distillation and Bottling ottling of liquor, entered into a rent agreement with

respondents vide lease-deed lease deed dated 11.05.2021 (Annexure P P-3) regarding egarding the

premises situated at plot No.41, Industrial Area, Phase 1, Chandigarh Chandigarh, for a

period of ten years.

7. Learned counsel for the petition petitioner after referring to the

introductory part of the lease-deed lease (Annexure P-3), which mentions that

lease- premises emises was under construction, directed the attention of this Court

to Clause No.1 No. of the lease deed, specifying the commencement date of the

lease, the monthly rent rate with provision for rent increase as stipulated

therein. Further, reference was made to Clause lause No.2, granting a four-month month

rent-free-fitment fitment-period to the lessee by the less lessor, and to Clause No.5

regarding the deposit of Rs. 48 Lacs by the petitioner with the respondents

as refundable security. Attention was also drawn to Clause 12, wherein the

lessor agreed to construct an additional area to meet the requirements of the

lessee.. Learned counsel submits that terms of lease lease, clearly indicate that at

the time of entering into the agreement,, the leased premises was under

construction and major formalities of sanctioning of building plan, various

other approvals including grant of occupation certificate etc. were required

to be obtained by the respondents/lessor respondents/lessor but were not completed by the

respondents within the agreed 3/ 4 months period between the parties.

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8.. It is stated by the learned counsel for the petitioner that

respondents completed the formalities of occupying the building at the end

of November 2022. The revised plans were submitted by respondents

belatedly, and the sanction-letter letter from Chief Administrator was received in

October vide letter 31.10.2022.

31.10. The learned counsel contended that

petitioner was unable to commence distillation ation plant on the leased property roperty

promptly after the execution of lease deed due to delay delays attributable to the

respondents. The petitioner could not take possession of the lease property

till December 2022 and for all intents and purposes, the petitioner could start

his business of distillation and bottling only in June 2023.

9.. The petitioner's counsel argued that it is the respondents who

failed to adhere to the terms of the lease-agreement agreement, both in letter and spirit.

Consequently, the petitioner for no fault on his part, was unable to take

possession of the leased lease property untill December 2022 2022. As a result, the

petitioner was deprived of the opportunity to start his business for which the

premises were leased. Learned counsel ounsel contended that, under these

circumstances the petitioner (tenant) is not obligated to pay rent for the circumstances,

period during which he could not take possession of the leased property and

utilize it.. The learned counsel submits that doctrine of 'suspension of rent' is

applicable to the facts of the present case. To support his arguments referred

to Hakim Sardar Bahadur Vs. Tej Parkash Singh, Singh,1962 PLR 538.. In this

case, it was held that where landlord tortiously deprives a tenant to use part

of the demised demise premises, so long as deprivation continues, landlord cannot

claim the rent for the remaining period. The tenant, in such a case, is

entitled to withhold the whole of the rent for the lease leased premises so long as

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he is deprived of a part of the leased lease premises and cannot be compelled to

pay the rent for the portion of the leased premises in his occupation.

Reference was also made to decision Nilkantha Pati Vs. Kshitish Chandra

Satpati and others, others AIR 1951 (Calcutta) 338 and Budge Budge Company

Limited, 2001 (2) RCR (Rent) 485 wherein doctrine of suspension of rent

was recognized, recogniz observing that in cases where landlord's acts cts were found

tortuous, this rule of equity, equity either for total or partial suspension of rent may

be applied on case to case basis.

10. Learned counsel submits that, given the facts where petitioner--

tenant, was as not given possession of the leased property till December 2022,,

due to respondents' fault, the petitioner is not liable to pay rent from 11st of

May 2021 to December 2022 as as well as for additional four- month period

until til April 2023, pursuant to Clause 2 of the lease lease-deed.

11.. The learned counsel for the petitioner submits that both Courts of

learned Rent Controller and learned Appellate Authority, failed to properly

appreciate the facts and principle of suspension of rent, which was fully

applicable licable to the facts and circumstances of the case, while assessing the

provisional rent. It is stated that the order dated 22.04.2024 passed by the

learned Rent Controller is unsustainable in the eyes of law and dismiss dismissal al of

the appeal by the learned Appellate Appellate Authority vide order 31.05.2024 is also

against the settled canons of law and be set aside aside.

12. Learned counsel representing the petitioner further argues that

Section 13 of the Rent Act 1949 stipulates that that, only rent arrears due on the

date of filing of the eviction petition can be claimed by the landlord against

the tenant. He submits that the present petition (Annexure P-4) was filed by

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the respondents on 09.12.2022, 09.12.2022 seeking rent from 01.09.2021 onwards onwards..

However, thee petitioner was not liable to pay rent till April 2023 2023. Therefore,,

the petition filed against the petitioner is not maintainable. In support of the

arguments, referred to decisions decision titled Dr. N. K. Sood Vs. Smt. Tara Wati

and another, 1992 (1) PLR 27 and Sunder Krishan Vs. Murari Lal, 2003

(1) PLR 419 and Sat Pal Vs. Kesar Singh 1968 PLR 834 834, Neera Chadha

Vs. Smt. Pardeep Kaur @ Pooja, 2021(1) RCR (Rent) 366

366.. Learned counsel

submits that provisional assessment of rent made by the learned Rent

Controller, and affirmed by the learned Appellate ppellate Authority, was wholly

contrary to the provisions of law and judicial decisions interpreting the

definition of 'rent due'. It is stated that hat the orders dated 22.04.2024 and

31.05.2024 do not stand judicial scrutiny andd are liable to be set aside.

13. Contrarily, learned counsel for the respondents/ respondents/landlord landlord

contends that impugned orders are valid in the eyes of law. The provisional

assessment of the rent has been made strictly as per the terms of the lease

agreement, applicable pplicable provisions of law and the pleadings of the parties.

14. Learned counsel submits that respondents filed petition on

09.12.2022, and in para No.2 of the rent ent petition petition, categorically pleaded that

petitioner is in arrears of rent from 01.09.2021 onwards. The learned counsel

states that term 'due arrears of rent'' may also include the period after the

filing of the petition, petition when the landlord has kept the period of 'rent due''

open and extensive in his petition. In present case case, landlord demanded rent

from 01.09.2021 onwards. To support his contentions contentions, learned counsel

referred to Vinod Kumar Vs. Prem Lata, 2003(2) Rent LR 449,, Hon'ble the

Supreme Court in para No.6, observed that provision itself casts an

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obligation on the Rent Controller to calculate and determine by its order (i)

the arrears of rent (ii) interest and (iii) the cost qualifying the amount which

should be paid or tendered by the tenant (at that stage) to comply with the

proviso. It is stated that in Rakesh Wadhawan Vs. M/s Jagdamba

Industrial Corporation, 2002 (1) R.C.R.(Rent) 514 514, Hon'ble the Supreme

Court held that the 'first date of hearing',, would mean the date falling after

the provisional rent has been assessed. By referring to Gurpreet Singh and

another vs. Brijender Bhardwaj and another, 2011 (2) CivCC290, and

Rajan alias Raj Kumar Vs. Rakesh Kumar, 2010(1) R.C.R.(Rent) 386

learned counsel submits that it is duty of the learned Rent Controller to

assess the exact amount of provisional rent and not the tenant. On failure to

pay the provisional rent, eviction must follow.

15. Learned counsel further states that the terms and conditions of

the lease agreement dated 11.05.2021 (Annexure P P-3) are not in dispute. The

assertion of payment of rent in cash has been rightly discarded by the

learned Rent Authorities in the absence of any evidence to prima facie

support such a payment. Learned counsel contends that on the contrary contrary,,

cheques given by the petitioner towards the rent have been dishonored, and

proceeding under Section 138 of Negotiable instruments Act, 1881 have

been initiated against him. It is submitted that the petitioner has not paid any

rent to the respondents respondent and is unlawfully holding the possession of the

leased property.

property It is further stated that the petitioner filed several

applications intentionally to delay the assessment of provisional rent, and

same was assessed almost 16 months after the petition was filed. It is stated

that in n these circumstances, the arrears of 'rent rent due due' were rightly considered

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for assessment of provisional provision rent from 01.09.2021 21 until the date of

assessment on 01.04 2024.

16. Learned counsel submits that the doctrine of 'suspension suspension of

rent' is not applicable to the facts of the case. Firstly, the terms of the lease

agreement do not incorporate the same except to the extent of Clause 2.

Secondly, the lease deed is a registered document and any terms not

explicitly written cannot be considered. In support refer referred to M/s Mohan

Singh Ishwar Dayal Jewellers Main Bazaar, Ballabhgarh Vs. Chuni Lal

and others, 2017 (1) PLR 217, 217, wherein it was observed that once the terms

of contract or grant are reduced in written document, no evidence shall be

given in proof of the terms of such contract or grant, except the document

itself or secondary evidence thereof. No oral evidence shall be admitted

proving the same.

same. Thirdly, there is no material oon n record suggesting

respondents-landlord deprived the petitioner petitioner-tenant through any mala fide

means to use the property or deceived or misled him about the condition of

the demised premises.

17.. Referring to various clauses lauses of the lease lease- deed, learned counsel

argued that petitioner petition was aware that leased property was under construction

and parties had agreed for a four-

four month rent free fitment period. The

petitioner was put in possession of the leased property on 11.05.2021 and the

lease was to commence from the date of its execution execution. The reference nce was

also made to the photocopy of letter dated 01.09.2021 given by petitioner to

the Bank of the respondents, requesting for the inspection of the property

taken on lease by him, him unerringly suggestss that petitioner had possession on n

the property.. This falsifies his claim that he was not put in possession of the

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leased property by the respondents. Therefore, Therefore, it is stated that the doctrine of

suspension of rent as pleaded by the petitioner is not applicable to the facts

of this case.. Based on these submissions,, a prayer for dismissal of the

revision is made, made being meritless.

18. I have heard learned counsel for the parties and have gone

through the paper book, appended and referred to documents documents, and the

judicial precedents.

19. From the material on record, relationship of landlord and tenant

is not in dispute.

dispute The terms of the registered lease deed dated 11.05.2021

(Annexure P-3) P which govern their commercial relationship, are also not in

dispute.. The rate of lease rent and its scheduled payments ha have been outlined

in clause No.3, No. , these too are not in dispute dispute. Clause No.2 speaks of afour--

month rent free fitment period being given by lessor to lessee (petitioner).

20. The introductory part of lease agreement in no uncertain terms

dictate that building was under constructi construction. The parties executed the

agreement, and there is no claim from the petitioner about misunderstanding

of the terms and conditions of the lease agreement. The lease lease- agreement

clearly indicates that the lease was to commence from 11.05.2021. Except

clause No.2, 2, no other condition is mentioned in the lease agreement grants

petitioner the right to seek exemption from pay paying rent. Clause No.3 is

regarding payment of advance cheques in lieu of the rental schedule..

Furthermore,, Clause No.5 specifies that the refundable security shall be

handed over by the lessor to the lessee only when the lessee hands peaceful

possession of the leased property to the lessor lessor. The letter dated 01.09.2021

given to the bank of the respondent, in which he requested the respondents' s'

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bank to o inspect the property, property taken by him on lease from the respondents..

Additionally, the recitals of clauses No.14, 14, 18 and 25, prima facie suggest

that petitioner took possession of the leased property at the commencement

of the lease on 11.05.2021.

11.05. The above evidence evidence, prima facie contradicts the

petitioner's claim c that he obtained possession in December 2022. Moreover,

the facts controverted by the petitioner are require required to be tested on the merits

of the case.. It is for the petitioner to establish tthat landlord prevented him

from using and utilizing the property immediately immediately. The plea of applicability

of doctrine of suspension of rent, at this stage, cannot be considered, as it

requires an assessment of evidence on merits of the case case. Therefore, the

petitioner etitioner is not permitted to state that eviction petition (Annexure P-4) on

alleged arrears of rent due towards him is not maintainable.

21. It would be apt to go through Section 13 of the Rent Act, 1949 1949,,

which deals with eviction of tenants.. The relevant portion extracted reads as

follows:-

"(1)A A tenant in possession of a building or rented land

shall not be evicted therefrom in execution of a decree passed before or

after the commencement cement of this Act or otherwise and whether before or

after the termination of the tenancy, except in accordance with the

provisions of this Section, [or in pursuance of an order made under

Section 13 of the Punjab Urban Rent Restriction Act, 1947, as

subsequently amended]

(2)A A landlord who seeks to evict his tenant shall apply to the Controller

for a direction in that behalf. If the Controller, after giving the tenant a

reasonable opportunity of showing ing cause against the applicant, is satisfied

-(i)that that the tenant has not paid or tendered the rent due by him in respect

of the building or rented land within fifteen days after the expiry of the

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timee fixed in the agreement of tenancy with his landlord or in the absence

of any such agreement, by the last day of the month next following that for

which the rent is payable:

Provided that if the tenant on the first hearing of the application for

ejectment after due service pays or tenders the arrears of rent and interest

at six per cent per annum on such arrears together with the cost of

application assessed by the Controller, the tenant shall be deemed to have

duly paid or tendered the rent within the tim time aforesaid;

(ii)that that the tenant has after the commencement of this Act without the

written consent of the landlord -

(a)transferred his right under the lease or sublet the entire building or

rented land or any portion thereof; or

(b)used used the building or rented land for a purpose other than that for which

it was leased, or

(iii)that that the tenant has committed such acts as are likely to impair

materially the value or utility of the building or rented land, or

(iv)that the tenant has been guilty of such acts and conduct as are a

nuisance to the occupiers of buildings in the neighbourhood, or

(v)that that where the building is situated in a place other than a hill hill-station, station,

the tenant has ceased to occupy the building for a continuous period of

four months without reasonable cause, the Controller may make an order

directing the tenant to put the landlord in possession of the building or

rented land and if the Controller is not ot so satisfied he shall make an order

rejecting the application:

Provided that the Controller may give the tenant a reasonable time for

putting the landlord in possession of the building or rented land and may

extend such time so as not to exceed three mo months in the aggregate......."

22. The plain reading of the section provides for a cause of action

for the landlord to seek eviction of a tenant by apply applying before the learned

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Rent Controller, ontroller, stating s that tenant has not paid or tendered the 'rent due''

against him.. The proviso to the Section ection provides that Rent Controller should

assess the arrears of rent including cost and interest as per the procedure laid

in the section, and tenant is statutory obligated to pay the arrears of rent, as

assessed by the Rent Controller. The legisla lature has not defined 'arrears arrears of

rent' or 'rent due'. In this context, the Section ection provides that landlord is to

file the petition, stating the 'rent due'.. It may be for a specified period, up to

the filing of petition or may be non-specific, specific, starting from default date only

with unspecified future defaults that may be reckoned by the learned Rent

Controller at the time of assessment of the rent, as it has happened in the

present petition

23. T The respondents-landlord landlord has dema demanded the rent due from

01.09.2021 onwards and petitioner has denied the same and is seeking

abatement of rent taking plea of doctrine of suspension of rent on the

grounds discussed above. So, in these circumstances, when learned Rent

Controller assessed the provisional rent on 22.04.2024, he assessed from

01.09.2021 to 01.04.2024, as per the scheduled rate rates of rent as mentioned in

lease deed. This Court is of the firm opinion th that this provisional assessment

of rent is as per the provisions of law, law, which of-course course shall be subject to the

final determination on the merits of the case.

case. In the referred judgment Neera

Chadha (supra), (supra) landlord had demanded rent for 2 months only.. Therefore,

this authority is inapplicable to the facts of this case. In Dr. N. K. Sood

(supra),, rent was claimed upto a particular per period in the petition. In Sunder

Krishan (supra) specific period of unpaid rent was demanded. The facts of

Sat Pal (supra) are distinguishable,, as in said case tenant was in

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arrears of rent.

rent In present case, the petitioner has pleaded that no rent was

due from him from the date of filing of the petition and claimed exemption

from payment of rent on plea of doctrine of ''suspension of rent'.

24. For the reasons recorded above, it is held that the learned Rent

Controller Chandigarh and the Learned Appellate Authority, Chandigarh has

rightly exercised the jurisdiction while passing the impugned order orders. This is

Court finds no illegality or perversity in the impugned orders, warranting ing

any intervention from this Court.

25. Accordingly, this revision petition is dismissed.

26. It is noted that the observations made above should not be

construed as an expression of opinion on the merits of the case pending

before learned Rent Controller, Cont Chandigarh.. Same are purely confined to the

present controversy and deliberations.

27. Pending applications, if any, also stands disposed of

accordingly.

(RITU TAGORE) JUDGE 08.07.2024 Rimpal Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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