Delhi District Court
Mrs. Vandana Dhirani vs Mrs. Arti Kirloskar on 27 July, 2023
IN THE COURT OF SHRI NAVJEET BUDHIRAJA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No.588/2021
CNR No.DLSE01-007212-2021
In the matter of :
Mrs. Vandana Dhirani
W/o Shri Vikram Dhirani,
R/o H.No.D-1039, New Friends Colony,
New Delhi-110025.
..... Plaintiff
Vs.
Mrs. Arti Kirloskar
W/o Shri Atul Kirloskar,
R/o H.No.Radha, 453, Gokhle Road,
Model Colony, Pune,
Maharashtra-411016.
.....Defendant
Date of Institution : 31.08.2021
Date on which Judgment
reserved : 17.04.2023
Date of Judgment : 27.07.2023
Result : Dismissed
SUIT FOR RECOVERY OF ARREARS OF RENT
JUDGMENT
This is a suit on behalf of plaintiff for recovery of arrears of rent and interest thereon in respect of lease of property bearing number C-99, 4th Floor, Defence Colony, New Delhi-110024 (for short, 'suit property') against the defendant.
1 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar
2. The narration of the plaint, as culled out from the plaint itself, is as under:
A. The plaintiff, as owner/ landlord, demised unto the defendant the suit property comprising of 3 bedrooms with bathrooms, living and dining room, kitchen and veranda along with furniture, fitting and fixtures for residential purposes and for a term of 11 months, vide lease agreement dated 04.12.2019 on an agreed rate of rent of Rs.4,33,000/- (Rupees Four Lakhs Thirty Three Thousand only) payable in advance on or before the 5th day of each English Calender month for the current month.
B. In terms of Clause 5 of the Lease Agreement dated 04.12.2019, the defendant/ lessee deposited with the plaintiff/ lessor an amount of Rs.8,66,000/- (Rupees Eight Lakhs Sixty Sixty Six Thousand only), equivalent to two months agreed rent by way of interest free security deposit, refundable within 5 days from the date of expiry of the term of the lease above stated.
C. It was mutually agreed by and between the parties vide Clause 3 and 4 of the Lease Agreement dated 04.12.2019 that the lease thereunder shall commence with effect from 01.03.2020 with the initial 5 months thereof being the lock-in period.
D. The plaintiff offered the possession of the suit property to the defendant vide E-mail dated 29.02.2020 and as mutually agreed upon by and between the parties, the lease commenced with effect from 01.03.2020. Pursuant to terms of the lease, the defendant also paid to the plaintiff, advance rent for the month of March, 2020 on 05.03.2020.
2 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar E. Subsequently, in view of the nationwide lockdown later imposed due to the COVID-19 pandemic, the parties mutually agreed to suspend the lease for a limited period of 53 days, from 23.03.2020 till 14.05.2020, with an extension to the right of the defendant to occupy and use the suit property for the said period of 53 days after 31.01.2021, i.e. upon expiry of the agreed lease term. It was further mutually agreed that the defendant shall not be liable for payment of any additional rent for its said extended occupation and use of the suit property and the defendant shall continue to be liable for payment of rent for a period of 11 months only as originally agreed upon in the Lease Deed dated 04.12.2019. The said subsequent agreement was also communicated by the plaintiff to the defendant vide E-mail exchanges dated 03.04.2020 & 04.04.2020, through their property dealer, Sh. Sameer Saran and was also acknowledged by the defendant vide her E-mail dated 02.06.2020.
F. On 02.06.2020, the defendant through its E-mail of even date, sought to terminate the Lease Agreement dated 04.12.2019 unilaterally, illegally and in breach of the lease agreement. It is reiterated that as per Clause 4 of the Lease Deed dated 04.12.2019, the first 5 months of the lease were mutually agreed to be the lock-in period, i.e. from 01.03.2020 till 01.08.2020, which later date stood extended till 23.09.2020 in view of the agreed suspension of 53 days mentioned above. Through its above E-mail dated 02.06.2020, during the above mentioned lock-in period, the defendant sought waiver of the said lock-in period and without such waiver being acquiesced to by the plaintiff, sought to unilaterally terminate the Lease Agreement dated 04.12.2019, contrary to the terms of the agreement. Additionally, the termination as above was sought by the defendant on the ground of the lease agreement having allegedly become impossible to perform and the defendant's temporary non-use of 3 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar the suit property. It is stated that there was no impossibility to perform the lease agreement. It is stated that the Plaintiff had performed its part of the contract by offering possession of the suit property to the defendant on 28.02.2020, the lease commenced on 01.03.2020 and thereafter nothing remained to be performed by the plaintiff. The only remaining performance was that of payment of rent by the defendant which did not become impossible at any point of time. It is further stated that neither the alleged impossibility to perform nor temporary non-use of the premises are legally tenable grounds for termination of lease. Thus, the alleged termination vide E-mail dated 02.06.2020 was also illegal.
G. The above E-mail dated 02.06.2020 was duly replied to by the plaintiff on 05.06.2020, using her son's E-mail ID where the termination E-mail was originally addressed. Through the said E-mail, the plaintiff declined the defendant's request to waive the lock-in period and disputed the alleged impossibility of performing the agreement and the unilateral termination itself. The plaintiff also suggested to the defendant that in case it was not desirous of continuing with the lease agreement, it may exercise its option to determine the same by serving one month's advance notice, after the expiry of the lock-in period, as mutually agreed upon under Clause 4 of the lease agreement.
H. The defendant again wrote an E-mail to the plaintiff on 11.06.2020 reiterating the contents of the its earlier E-mail dated 02.06.2020 and disputing the contents of the plaintiff's E-mail dated 05.06.2020, and unilaterally proposing to again terminate the lease agreement by forfeiture of monies already paid by it to the plaintiff. However, the said offer was also expressly declined by the plaintiff vide 4 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar E-mail dated 16.06.2020 while seeking adherence to the terms of the lease agreement. The plaintiff also sent E-mails dated 07.07.2020, 19.07.2020, 30.07.2020, 16.09.2020, some of which were replied to by the defendant vide E-mails dated 17.07.2020, 30.07.2020 and 16.09.2020, wherein the parties reiterated their respective positions as above mentioned. It is stated that the plaintiff has never waived the lock- in period or the requirement of one month's notice thereafter for termination; the lease agreement has never been validly terminated; and the lease agreement subsisted till 25.03.2021 when it came to an end by efflux to time.
I. Despite expiry of the lock-in period and despite plaintiff's suggestion to terminate the lease as per agreement upon expiry of the lock-in period, the defendant never exercised the said option. As such, the defendant's tenancy continued in terms of the lease agreement till its determination by efflux of time on 25.03.2021, being inclusive of the 53 days suspension period beyond the original term expiring on 31.01.2021, with the defendant being liable for payment of a total rent for a period of 11 months under the lease agreement dated 04.12.2019.
J. The defendant, however, has paid rent for the suit property only for the month of March, 2020 and despite repeated requests and written reminders, including the plaintiff's e-mails dated 07.07.2020, 07.08.2020, 07.09.2020 and 07.10.2020, the Defendant has neglected/ failed/ refused to pay the rent for the remaining period of 10 months under the Lease Agreement dated 04.12.2019.
K. Aggrieved by the non-payment of rent as above mentioned, the plaintiff got sent/ served on the Defendant, a legal notice of demand 5 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar dated 14.05.2021, dispatched vide speed post and e-mail on 14.05.2021, calling upon the defendant to pay to the plaintiff its arrears of rent alongwith the interest accrued thereon as on the date of notice. However, despite service of the legal notice, dated 14.05.2021 and expiry of the period thereof, the Defendant did not pay/ tender any amount whatsoever as demanded therein. The counsel for the defendant sent a reply to the Legal Notice through E-mail dated 27.05.2021, wrongfully disputing the defendant's liability to pay the demanded amount.
L. The defendant is liable to pay to the plaintiff a total principal sum of Rs.34,64,000/- (Rupees Thirty Four Lakhs and Sixty Four Thousand only), being the arrears of the rent calculated @Rs.4,33,000/- (Rupees Four Lakhs Thirty Three Thousand Only) p.m. for the unpaid period of 10 months amounting to Rs.43,30,000/- (Rupees Forty Three Lakhs and Thirty Thousand only) and upon adjustment of Rs.8,66,000/- (Rupees Eight Lakhs Sixty Six Thousand only), equivalent to two months agreed rent by way of interest free security deposit.
M. The Defendant has also not deposited with the Income Tax Department the amount of TDS or otherwise issued any TDS Certificate except with respect to the rent payable for the month of March, 2020.
N. Further, on account of Defendant's default in payment of aforesaid principal amount of Rs.34,64,000/- (Rupees Thirty Four Lakhs and Sixty Four Thousand only) towards arrears of rent, the Defendant has further rendered itself liable for payment of interest @18% p.a. thereon, amounting to Rs.5,71,631/- (Rupees Five Lakhs Seventy One Thousand Six Hundred and Thirty One only) as on 15.07.2021.
6 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar O. Therefore, the plaintiff is entitled to recover from the defendant a total sum of Rs.40,35,631/- (Rupees Forty Lakhs Thirty Five Thousand Six Hundred and Thirty One only) as arrears of rent alongwith the interest thereon, all for the period upto 15.07.2021.
3. Defendant combated the present suit by filing the written statement as under:
3.1. The present suit is an abuse of the process of law as the same has been filed with malafide intention.
3.2. The Defendant denies the entitlement of the Plaintiff to an amount of Rs.40,35,631/- (Rupees Forty Lakhs Thirty Five Thousand Six Hundred and Thirty one only) towards arrears of rent and interest thereon. The Defendant submits that the Plaintiff had failed to make out any case for the payment of the aforesaid amounts and has in fact hidden relevant information and facts from this Court and has approached this court with unclean hands.
3.3. The Suit is bad-in-law in terms of Section-20, Code of Civil Procedure, 1908, inasmuch as, the sole Defendant herein is a permanent resident of Pune, Maharashtra, whereas the captioned Suit is filed in New Delhi. It is submitted that the captioned Suit does not seek any reliefs qua the immovable property and is purely a monetary suit for recovery of monies. Further, the Defendant herein, admittedly, had not occupied the Suit Property for even a single day or otherwise has not till date been put in possession of the property.
3.4. As per the Plaintiff's own admission, the Plaintiff is still in 7 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar possession of the security amount of Rs.8,66,000/- (Rupees Eight Lakhs and Sixty Six Thousand only) which has not been returned to the Defendant till date. Without prejudice to the rights and contentions of the Defendant, even if it is assumed, without admission, that the Lease Agreement dated 04.12.2019 expired due to efflux of time, even then, the aforesaid security amount is liable to be returned to the Defendant with interest.
3.5. The Plaintiff is seeking to enforce a Lease Agreement which has already become void due to the impossibility of performance thereof subsequently set in due to the imposition of the nationwide lock-down due to the advent of novel corona virus pandemic.
3.6. At the relevant point in time, the married daughter of the Defendant resided in New Delhi and had just given birth to her newborn child. Accordingly, the Defendant and her husband wanted to assist their daughter in New Delhi, and help in taking care of the grandchild which required a residential place in New Delhi on temporary basis.
3.7. Under these circumstances, the Plaintiff and the Defendant became acquainted at which time the Defendant had clearly informed the Plaintiff the reasons for which she was looking for a residential premises in New Delhi as aforesaid, and thereafter the Lease Agreement dated 04.12.2019 came to be executed between the parties.
3.8. Thereafter, in or around March, 2020, due to advent of Covid-19 corona virus pandemic, and the subsequent imposition of a nationwide lock-down, it was impossible for the Defendant to travel from Pune, Maharashtra to New Delhi immediately upon execution of the Lease 8 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar Agreement. The Defendant is a senior citizen aged about 60 years, whereas her husband is a senior citizen aged about 65 years, and, as such, on the ground of advanced age and co-morbidities, it was the prevalent professional medical advice that the Defendant could not travel to New Delhi. The contract therefore became void due to the impossibility of performance of the same pandemic and the consequent imposition of nationwide lock-down making it impossible for either party to perform its obligation and which even was not envisaged at the time of execution of the Lease Agreement.
3.9. The nationwide lock-down imposed by the Government of India was being extended from time to time and the number of people being affected by the Covid-19 corona virus pandemic in the country was on a steady rise. Keeping in view the aforesaid facts and circumstances and the uncertainty revolving around the Covid-19 corona virus pandemic and the advanced age of the Defendant and her husband, the Defendant deemed it fit to terminate the Lease Agreement to avoid any technicalities and apprised the Plaintiff of the same vide an E-mail dated 02.06.2021. The Defendant vide her said E-mail had categorically explained to the Plaintiff the impossibility being faced by her and her husband due to the circumstances that did not exist at the time of entering into the Lease Agreement and had further emphasized on the fact that the Defendant has had not been able to visit Delhi and has not taken the possession of the Suit Property.
3.10. Accordingly, the Plaintiff has, indisputably, failed to hand over the possession of the Suit Property to the Defendant, and the Defendant has, admittedly, not even occupied/ resided in/ used the Suit Property for even a single day and never even had the keys thereto. Further, inter alia, 9 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar due to the Covid-19 pandemic, it was not possible or advisable for the Defendant or her husband to travel to New Delhi. Accordingly, the subject-matter Agreement dated 04.12.2019 was never implemented in reality. However, as a measure of bona fide, the Defendant had already made payment of the security deposit of Rs.8,66,000/- (Rupees Eight Lakhs and Sixty Six Thousand only), as also the advance rent for one month i.e. Rs.4,33,000/- (Rupees Four Lakhs and Thirty Three Thousand only). This in itself shows that the Defendant was always ready and willing to perform her part of the contract.
3.11. The above circumstances, difficulty, and impossibility being faced by the Defendant in light of the nationwide lock-down being imposed Government of India, lack of any vaccines, travel restrictions and uncertainty around the situation being faced by the country were duly and promptly informed to the Plaintiff, who approached the situation with a very rigid and stoic stance of refusing to resolve the issues amicably. Accordingly, left with no other option, the Defendant was compelled to cease payment of rental amounts payment for April, 2021, thereby in any event resulting into an automatic termination of the Lease Agreement dated 04.12.2019 as per Clause 15 of the Lease Agreement, and, in any case, the Defendant was prevented from circumstances (Covid-19 pandemic) that resulted in the performance of the Lease Agreement itself becoming impossible thereby resulting in making the Lease Agreement void.
3.12. Even despite the aforesaid intimations and having knowledge of the circumstances prevailing around the Covid-19 pandemic, the Plaintiff issued various wrongful and false E-mails demanding rent from this Defendant. Due to such unlawful demands, the Defendant was 10 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar constrained to issue E-mail(s) dated 02.06.2020 and 11.06.2020, informing the Plaintiff that the argument has been terminated and may be treated as such. In spite of the same, the Plaintiff has mala fide filed the captioned Suit.
3.13. The Defendant submits that taking a pragmatic view of the situation and giving due consideration to the difficulty and hardship being faced by the Plaintiff and with an intention to demonstrate her bona fide and in good faith, solely with an objective to put the matter at rest and as a gesture of good will, the Defendant vide its E-mail dated 11.06.2020 informed the Plaintiff that she was willing to let go of the amounts paid by her thus far approx. amounting to Rupees Thirteen Lakhs provided that all the issues are settled. The Plaintiff has chosen not to do so thereby refusing the Defendant offer.
4. On behalf of plaintiff, replication came to be filed against the written statement of the defendant, wherein the contents of the written statement were denied except to the extent specified in the plaint and contents of the plaint were reiterated.
5. Post consummation of the pleadings, following issues were framed:
1. Whether the possession of the suit property was given to the defendant as per terms of lease agreement? OPP.
2. Whether the defendant did not take possession of the suit property as per said lease agreement? OPD.
3. Whether the defendant used the suit property after taking it on rent? Onus on parties.
4. Whether the lease agreement dated 04.12.2019 stood terminated 11 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar vide defendant's email dated 02.06.2020 or in any other way? OPD.
5. Whether the lease agreement became impossible to be performed due to onset of Covid-19 Pandemic? OPD.
6. Whether the plaintiff is entitled for recovery of possession of the suit property? OPP.
7. Whether the plaintiff is entitled for recovery of arrears of rent and interest thereon from the defendant, as claimed? OPP.
8. Whether the plaintiff is entitled for interest, if so at what rate and for which period? OPP.
6. Further vide order dated 13.07.2022, an additional issue was also framed which is as under:
"Issue No.5A:- Whether the lease agreement dated 04.12.2019 was terminated automatically in terms of clause 15 upon first default in payment of rent by the defendant? OPD."
7. Thereafter, it was noted by Ld. Predecessor of this Court that on account of Covid-19 pandemic, local commissioner can be appointed for recording of evidence. Accordingly, Ms. Yukti, Ld. Advocate, was appointed as a local commissioner by virtue of Order 18 Rule 4(2) CPC.
8. As per report of Ld. LC, on 02.08.2022, Ld. Counsel for plaintiff submitted that he did not wish to lead any evidence in the affirmative and the documents which were admitted by the defendant in the affidavit of admission/denial, be marked. Consequently, the documents were marked as under:
1. Lease Agreement dated 04.12.2019 as Ex.PW1/1
2. Copy of email dated 28.02.2020 as Ex.PW1/2 12 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar
3. Copy of email dated 24.03.2020 as Ex.PW1/3
4. Copy of email dated 27.03.2020 as Ex.PW1/4
5. Copy of email dated 02.06.2020 as Ex.PW1/5
6. Copy of email dated 05.06.2020 as Ex.PW1/6
7. Copy of email dated 11.06.2020 as Ex.PW1/7
8. Copy of email dated 16.06.2020 as Ex.PW1/8
9. Copy of email dated 25.06.2020 as Ex.PW1/9
10. Copy of email dated 07.07.2020 as Ex.PW1/10
11. Copy of email dated 17.07.2020 as Ex.PW1/11
12. Copy of email dated 19.07.2020 as Ex.PW1/12
13. Copy of email dated 30.07.2020 as Ex.PW1/13
14. Copy of email dated 30.07.2020 as Ex.PW1/14
15. Copy of email dated 07.08.2020 as Ex.PW1/15
16. Copy of email dated 07.09.2020 as Ex.PW1/16
17. Copy of email dated 16.09.2020 as Ex.PW1/17
18. Copy of email dated 16.09.2020 as Ex.PW1/18
19. Copy of email dated 07.10.2020 as Ex.PW1/19
20. Copy of email dated 07.11.2020 as Ex.PW1/20
21. Copy of email dated 07.12.2020 as Ex.PW1/21
22. Copy of legal notice of demand dated 14.05.2021 as Ex.PW1/22
23. Copy of reply to legal notice dated 27.05.2021 as Ex.PW1/23
24. Copy of emails dated 28.03.2020, 29.03.2020, 01.04.2020, 02.04.2020, 03.04.2020, 04.04.2020, 09.04.2020 as Mark A to Mark G respectively.
9. Defendant also filed the documents which were admitted by the plaintiff and marked as Ex.D1, Ex.D2 and Ex.DW1/1. Defendant further examined DW1 Dr. Ajay Dhongade, who was cross examined on behalf of the plaintiff. Thereafter, defendant also rested his evidence and the 13 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar case culminated to the stage of final arguments.
10. Ld. Counsel for the plaintiff Sh. Manu Aggarwal advanced the final arguments canvassing the facts of the suit and further asserting that the concept of the frustration of contract does not apply to lease agreements as the transaction was complete and nothing remains to be performed on the part of either party. The lease deed could not have been validly terminated without the compliance of the pre-requisites and, thus, the notice of termination was defective as per Section 111 of the Transfer of Property Act (for short, 'TP Act'). Ld. Counsel then attracted the attention of the Court to Clause 4 and Clause 15 of the lease agreement and also to various emails exchanged between the parties. Ld. Counsel further emphasized upon Clause 4 of the lease agreement to assert that there was a lock-in-period of 5 months and, thus, the alleged termination before the lock-in-period is not valid, and that defendant cannot be permitted to derive any advantage of the Clause 15 as being herself in default of payment of rent by the 10th of each month would not cloth her with the right to terminate the lease agreement. Ld. Counsel for the plaintiff, to bolster his submissions, referred to the judgment of Madras High Court in Ramani Ammal Vs. Susilammal, date of decision 13.07.1990, and also referred to some extracts of Indian Contract and Specific Relief Acts by Pollock and Mulla and of the Transfer of Property Act by Mulla.
11. Conversely, Ld. Counsel for the defendant, while also adverting to various emails exchanged between the parties, urged that the lease agreement stood terminated due to impossibility of performance of contract as the circumstances prevailing at that time owing to Covid-19 pandemic prevented the defendant and her husband to travel to Delhi.
14 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar Ld. Counsel further emphasized that the plaint is completely silent as to clause 15 of the lease agreement whereby the lease was to be determined upon non-payment of the rent by the 10th of every month. Ld. Counsel also pointed out that there is no pleading as to the damages suffered by the plaintiff and as to what steps were taken to mitigate the alleged losses. Ld. Counsel for the defendant further referred to Section 106 (3) of TP Act and asserted that a lock-in-period clause is not in accordance with the said provision. Ld. Counsel also referred to Section 110 Part 3, Section 111 (b) and (g) of TP Act and asserted that the moment defendant/lessee did not pay the rent by 10th of every month, forfeiture took place and lease stood terminated. Ld. Counsel further canvassed that clause 15 of the lease agreement has to be read and interpreted in the light of Section 114 of TP Act.
12. On behalf of defendant written submissions were also filed, supported by the following judgments:
Pyara Lal Taheem & Ors. V. Mohan Murti Shandilya, (MANU/DE/2307/2013);
Bangalore Electricity Supply Company Limited (BESCOM) V. E.S. Solar Power Pvt. Ltd., (2021 SCC OnLine SC 358); Nabha Power Ltd. (NPL) V. Punjab State Power Corporation Ltd. (PSPCL) and Ors., (2018 (11) SCC 508); Sahebzada Mohammad V. Jagdish Chandra Deb, (AIR 1960 SC 953);
M. Lachita Setty & Sons Ltd. & Ors. V. Coffee Board, Bangalore, (1981 SC AIR 162);
Soril Infra Resources Ltd. V. Annapurna Infrastructure Pvt. Ltd. & Ors., (2017:DHC:4240-DB); Manju Bagai V. Magpie Retail Ltd., (2010:DHC:5362).
15 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar My issue wise finding is indicated infra:
Issue No.1: Whether the possession of the suit property was given to the defendant as per terms of lease agreement? OPP & Issue No.2: Whether the defendant did not take possession of the suit property as per said lease agreement? OPD
13. Issue No.1 and 2 are taken up together being concatenated and pertaining to the factum of possession of the suit property by the defendant.
13.1. The perusal of the plaint reveals that the suit property was rented out to the defendant for residential purpose for a term of 11 months, vide lease agreement dated 04.12.2019 Ex.PW1/1 at the rate of rent of Rs.4,33,000/- per month, and in regard to all these facts, there has been no demur on behalf of the defendant. With regard to the possession of the suit property, the unequivocal stand of the plaintiff is that vide email dated 28.02.2020 Ex.PW1/2 (though at one point in plaint, it is mentioned as 29.02.2020), possession of the suit property was offered to the defendant, since admittedly, the defendand had been putting up at Pune, Maharashtra and the lease was also scheduled to commence with effect from 01.03.2020. The email dated 28.02.2020 Ex.PW1/2 is presented as under:
"Dear Shashank, Hope you are well.
Please let us know what time to expect Arti tomorrow.
As mentioned earlier, please send us the tenant police verification asap. Best, Aditya."
16 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar 13.2 This factum of offering of possession of the suit property as well as the commencement of the lease deed with effect from 01.03.2020 has not been specifically oppugned in the written statement. The written statement primarily hinges upon the fact that due to covid-19 restrictions, defendant and her husband were unable to travel to Delhi. The onset of covid-19 pandemic is an undisputed event, and which in fact crippled the day to day lives of the people and played havoc in every nook and corner of our country. However, in the given factual matrix, it cannot be lost the sight of the fact the lease as per lease deed Ex.PW1/1 had commenced from 01.03.2020, and at that time and till few days thereafter, to be precise till 22/23.03.2020, there were no travel restrictions and the written statement is also completely silent as to what prevented the defendant to physically occupy the suit property with effect from 01.03.2020. The written statement merely harps upon the onset of covid- 19 in March 2020 as the reason for inability to take physical possession of the suit property. But in the light of the fact that till about two weeks of March, the people across the country were going about their lives in a normal fashion, the onus was upon the defendant to explicate the circumstances which hindered her to occupy the suit property.
13.3. As per Section 107 of the TP Act, 1882, the leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. In the instant case, the lease agreement is unregistered, and the mandate for making the lease was to deliver the possession. It is a settled legal position that delivery of possession can either be actual or constructive. The possession of the demised property can be delivered in a constructive manner depending upon the surrounding circumstances, and the present case can be said to be an exemplar where the circumstances had 17 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar warranted the handing over of the constructive possession of the suit property to the defendant. Reliance is placed upon the judgment in Uda Ram Vs. Tej Karan and Ors, AIR 1975 Raj 147.
13.4. No doubt, it was the prerogative of the defendant to have occupied the suit property as per her desire and convenience, but, if owing to the subsequent events, if she was unable to physically occupy the suit property, she cannot be permitted to canvass that there was no delivery of possession of the suit property. Apart from this, there is no material in the form of emails exchanged between the parties or otherwise that any formality was remained to be complied from the side of the plaintiff before the delivery of possession of the suit property. In fact, post the email of the plaintiff Ex.PW1/2 on 28.02.2020 verifying the time of arrival of the defendant, there has been no communication from the side of the defendant till 27.03.2020 Ex.PW1/4, whereby she had conveyed her impossibility to travel due to Corona virus and consequent lock down. Thus, since the defendant has failed to discharge the aforesaid onus, it can be safely concluded that the plaintiff vide email dated 28.02.2020 Ex.PW1/2 had offered the possession of the suit property and since the lease was to commence from 01.03.2020 and admittedly rent for the month of March also stood paid, the constructive possession of the suit property had vested with the defendant.
13.5. Issue no.1 is accordingly decided in favor of the plaintiff and against the defendant.
14. Since, the upshot of the aforesaid discussion is that the constructive possession of the suit property was handed over to the defendant, defendant can be said to have taken possession of the suit property as per the lease agreement. Issue no.2 is also, thus, decided against the defendant and in favour of the plaintiff.
18 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar Issue No.3: Whether the defendant used the suit property after taking it on rent? Onus on parties.
15.1. It is an irrefragable position that the defendant could not physically occupy the suit property after taking it on rent, and thus, there did not arise any occasions to use the same. Plaintiff has also nowhere pleaded and proved that the suit property was in any manner used by the defendant. Thus, this issue is disposed of accordingly.
Issue No.4: Whether the lease agreement dated 04.12.2019 stood terminated vide defendant's email dated 02.06.2020 or in any other way? OPD.
& Issue No.5A: Whether the lease agreement dated 04.12.2019 was terminated automatically in terms of clause 15 upon first default in payment of rent by the defendant? OPD.
16. The onus to prove both the aforesaid issues was upon the defendant. Before dwelling upon any discourse on these issues, it is apposite to reproduce Clause (4) and Clause (15) of the lease agreement Ex.PW1/1 and the contents of the defendant's email dated 02.06.2020 Ex.PW1/5:
"4. Lock-in period will be 5 months from the lease commencement date. Either the lessee or lessor can give one-
month advance written notice to the other to vacate the Demised Premises (subsequent to the lock- in period);
15. That if the Lessee fails to pay the monthly rent to the Lessor as hereby agreed upon in time (by 10th of every month) this lease will be terminated/cancelled 19 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar automatically and lessee shall have no right/claim for the Demised Premises as well as this lease agreement;"
"Subject: Termination of Lease Agreement dated December 4, 2019 (the "Agreement") in respect of the premises situated at C 99, Defence Colony, New Delhi-
110024 ("Demised Premises").
Dear Aditya, Hope you and your family are safe.
I refer to the captioned Agreement. The lease granted in respect of the Demised Premises was for a period of 11 months commencing wiht effect from March 1, 2020 to January 31, 2021 on such terms and conditions as mentioned in the Agreement. As you are aware, I had obtained the lease of the Demised Premises so that my husband and I could come to Delhi along with our daughter who has recently delivered a baby, to look after her and the baby in the initial months as grandparents. As you are further aware, due to the outbreak of pandemic disease, novel coronavirus (COVID-19), in India and the consequent imposition of the lockdown throughout the country, I have not been able to travel to Delhi and/or take the possession of the Demised Premises from March 1, 2020 onwards. However, I thank you for taking note of these unprecedented circumstances and having suspended the Agreement and any amounts payable thereunder.
I would like to inform you that due to a lack of the vaccine, extension of lockdown in phases, the existing travel restrictions and uncertainty around the situation, it appears that 20 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar we shall not be able to travel to Delhi in the near future. Further, as my husband is a senior citizen with co-morbidities, he has been strictly advised by our doctor to avoid any kind of travelling in order to avoid the chance of getting infected.
Such inpossibility to perform the Agreement was not expected at the time of execution of the Agreement. Hence, in view of this, I request you to waive the lock-in period obligation under clause 4 of the Agreement and hereby serve this notice of termination to forthwith terminate all obligations under the Agreement.
I am hopeful that you understand the gravity of these circumstances and am sure that you will recognize the need for a cooperative and collaborative action and the need for termination of the Agreement.
Do stay safe and at home!"
16.1. It is an assiduous contention of Ld. Counsel for the plaintiff that the alleged termination of the lease agreement by the email dated 02.06.2020 was unlawful and defective as per Section 111 of the TP Act and the various covenants of the lease agreement, particularly clause 4 where lock in period of five months was provided.
16.2. It is pellucid from the aforesaid clause (4) of the lease agreement Ex.PW1/1 that the lock-in period of five months was provided from the lease commencement date i.e. 01.03.2020, which signifies, that both the parties were bound with the lease agreement for five months commencing from 01.03.2020, meaning thereby, that the plaintiff/landlord could not have got the suit property vacated from the defendant/tenant, and conversely defendant/tenant could not have 21 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar vacated the suit property before the expiry of five months from the commencement of lease. Now, on computation as per the lease deed, the lock-in period would have expired on 31.07.2020. But as per the pleading of the plaintiff, in view of the nationwide lock down due to covid-19 pandemic, the parties mutually agreed to suspend the lease for a limited period of 53 days from 23.03.2020 till 14.05.2020, with an extension to the right of the defendant to occupy and use the suit property for the said period of 53 days after 31.01.2021 i.e. upon expiry of the agreed lease term. It was further mutally agreed that the defendant shall not be liable for payment of any additional rent for the said extended occupation of the suit property. This arrangement was communicated by the plaintiff to the defendant vide email exchanges dated 03.04.2020 Mark E and 04.04.2020 Mark F, and which was acknowledged by the defendant vide her email dated 02.06.2020 Ex.PW1/5. In the written statement, though, it was contended that the defendant was not privy to such communication, and this extension of the term of the lease agreement to beyond 12 months would have required the lease agreement to be compulsory registered.
16.3. The aforesaid stand of the defendant in the written statement is at odds with the email dated 02.06.2020 Ex.PW1/5, wherein she has acknowledged the suspension of the lease agreement. However, it is also a matter to be seen whether the suspension of the lease agreement is permitted as per law.
16.4. Be that as it may, even if the said period is discounted for, and viewing from any angle, in the email dated 02.06.2020 Ex.PW1/5, the defendant had expressed her intention to terminate the lease deed forthwith, which act was in transgression of the clause (4) of the lease 22 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar deed and amounted to breach of agreement. However, at this juncture, for adjudication of issue no.4, it is to be seen whether the said act of the defendant amounted to termination of the lease agreement or not.
16.5. The said email Ex.PW1/5 indicates the circumstances having arisen due to Covid-19 pandemic which had thwarted the plans of the defendant and her husband to travel to Delhi and occupy the suit property for the purpose of taking care of their daughter, however, irrespective of the said reason, the fact of the matter is as discussed in issue no.1 and 2, the constructive possession of the suit property had vested with the defendant, the email dated 02.06.2020 was though in breach of the agreement, but the same also had the effect of rescinding the lease agreement.
16.6. I also feel compelled to highlight, at this juncture, that the present issue is touching upon the validity or non-validity of the email notice dated 02.06.2020, as the plaintiff has been postulating that the said notice cannot be said to be a valid notice which determined the lease and this perception drove him to persist with the lease agreement, however, there has been no prayer sought on behalf of plaintiff to declare this email notice dated 02.06.2020 as null and void, which in my opinion, was indispensable, in the light of the averments in the plaint. I draw support from the judgment of Supreme Court in I S Sikander (D) by LRs & Ors Vs. K. Subramani & Ors, 29.08.2013, wherein one of the issues under consideration was whether the suit for specific performance of contract is maintainable in law against the party, which had rescinded the contract, without seeking the declaratory relief with respect to the termination of agreement to sell notice as null and void. This was answered by the Supreme Court as under:
23 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar
"17. Answer to Point No.1 The first point is answered in favour of the defendant No. 5 by assigning the following reasons:
It is an undisputed fact that there is an Agreement of Sale executed by defendant Nos. 1-4 dated 25.12.1983 in favour of the plaintiff agreeing to sell the schedule property in his favour for a sum of Rs. 45,000/- by receiving an advance sale consideration of Rs.5,000/- and the plaintiff had further agreed that the remaining sale consideration will be paid to them at the time of execution of the sale deed. As per Clause 6 of the Agreement of Sale, the time to get the sale deed executed was specified as 5 months in favour of the plaintiff by the defendant Nos.1-4, after obtaining necessary permission from the competent authorities such as the Urban Land Ceiling Authority and Income Tax Department for execution and registration of the sale deed at the cost and expenses of the plaintiff.
If there is any delay in obtaining necessary permission from the above authorities and the payment of layout charges, the time for due performance of agreement shall further be extended for a period of two months from the date of grant of such permission. In the instant case, permission from the above authorities was not obtained from defendant Nos. 1-4. The period of five months stipulated under clause 6 of the Agreement of Sale for execution and registration of the sale deed in favour of the plaintiff had expired. Despite the same, the defendant Nos. 1-4 got issued legal notice dated 06.03.1985 to the plaintiff pointing out that he has 24 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar failed to perform his part of the contract in terms of the Agreement of Sale by not paying balance sale consideration to them and getting the sale deed executed in his favour and called upon him to pay the balance sale consideration and get the sale deed executed on or before 18.3.1985.
The plaintiff had issued reply letter dated 16.3.1985 to the advocates of defendant Nos. 1-4, in which he had admitted his default in performing his part of contract and prayed time till 23.05.1985 to get the sale deed executed in his favour. Another legal notice dated 28.03.1985 was sent by the first defendant to the plaintiff extending time to the plaintiff asking him to pay the sale consideration amount and get the sale deed executed on or before 10.04.1985, and on failure to comply with the same, the Agreement of Sale dated 25.12.1983 would be terminated since the plaintiff did not avail the time extended to him by defendant Nos. 1-4. Since the plaintiff did not perform his part of contract within the extended period in the legal notice referred to supra, the Agreement of Sale was terminated as per notice dated 28.03.1985 and thus, there is termination of the Agreement of Sale between the plaintiff and defendant Nos. 1-4 w.e.f. 10.04.1985. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law.
In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of 25 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law. Therefore, we have to hold that the relief sought for by the plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law. Accordingly, the point No. 1 is answered in favour of the defendant No.5."
16.7. The Supreme Court had held the suit for specific performance of contract to be not maintainable in the absence of specific prayer of declaratory relief qua the termination notice. The same analogy can be adopted in this suit as the plaintiff has challenged the validity of the termination notice email dated 02.06.2020 Ex.PW1/5, but has omitted to claim any relief in regard to the declaration of the said notice. Thus, on this count also, the suit of the plaintiff is found to be on slippery slope.
16.8. Issue no.4 is disposed of in aforesaid terms.
17. In so far as issue no.5(A) is concerned, it is the ambitious contention of Ld. Counsel for defendant that the lease agreement was terminated automatically in terms of clause (15) upon first default of payment of rent by the defendant, be it by 10.04.2020 or after discounting 53 days during which the lease agreement was suspended, by 10.06.2020, when the rent was not paid, by virtue of Section 111(b) and (g) of the TP Act. However, I do not concur with the said interpretation of clause (15) of the lease agreement.
17.1. Ld. counsel for defendant had argued that as per Section 111(b), the happening of event can be equated with the non payment of the rent 26 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar by the defendant which determined the lease, but this construction, in my opinion is not proper as it is not the intention of the legislature to bring the happening of the event in the control of the lessee. Clause (b) is intended to apply in cases where the happening of the event is though cited in the lease agreement but which is beyond the control of both the parties. Further, the happening of the event should be of affirmative nature and not negative. Non payment of the rent was the sole decision of the defendant, which certainly cannot be equated with the event, the happening of which had determined the lease.
17.2. In so far as clause (g) of Section 111 is concerned, the twin requirements cited therein in relation to the forfeiture is that (a) lessee breaks an express condition, which provides that on breach thereof, (b) the lessor may re-enter. The other essential condition is of giving of a notice in writing by the lessor of his intention to determine the lease. Even after service of the notice, the lease is voidable and not void.
17.3. Reading of clause (15) in the instant case, in the light of this provision, does not provide any express terms that if the defendant had failed to pay the rent, by 10th of every month, the plaintiff/lessor would have re-entered in the suit property. Further, there was no notice issued by the lessor/plaintiff to the lessee/defendant determining the lease. In my opinion, in the absence of these requirements, the mandate of the deposit of rent by a particular day, and failure of the same would be voidable at the option of lesser/landlord. Thus, even if, as per lease agreement clause (15), the rent is not paid on 10 th April 2020 or 10th June, 2020, the lease agreement cannot be considered to be terminated in the absence of compliance of afore-mentioned pre-requisites.
17.4. Otherwise also, the alleged termination of the lease agreement by 27 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar virtue of clause (15) for non payment of the rent by the defendant, would not be of any significance, as the defendant had already terminated the lease by email dated 02.06.2020 Ex.PW1/5, and the occasion to consider the termination of the lease deed by non payment of the rent on or before 10.06.2020, would not, thus, arise. Issue no.5(A) is decided against the defendant.
Issue no.5: Whether the lease agreement became impossible to be performed due to onset of Covid-19 Pandemic? OPD.
18. The onus to prove this issue was upon the defendant. It has been pleaded as well as contended on behalf of the defendant that the performance of the lease agreement became impossible due to the advent of Covid-19 in March 2020, and since defendant was a senior citizen aged about 60 years and her husband was a senior citizen aged 65 years, suffering from advanced age co-morbidities, on a professional medical advise, they avoided traveling to Delhi and the consequent imposition of nationwide lockdown made it further impossible for them to act in furtherance of the lease deed and, thus, there was frustration of the contract, making the lease agreement void as per Section 56 of the Indian Contract Act.
18.1. On the contrary, Ld. Counsel for plaintiff has countered the aforesaid argument stating that the lease agreement was an executed contract and not an executory contract, and it is a settled dicta that the doctrine of frustration as enshrined in Section 56 of the Indian Contract Act is not applicable to the lease deeds.
18.2. In my view the defence of the defendant that it was impossible to travel from Pune to Delhi at the date of the commencement of the lease i.e. 01.03.2020 does not hold any water as it can be said that though it 28 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar was difficult to travel during the said period since certain corona cases were reported in Delhi, but cannot be said to be impossible to do so. A difficult situation can in no way render a contract void on the ground of impossibility under Section 56 para 2 of the Indian Contract Act, 1872.
18.3. As has already been concluded in issue no.1 and 2 that the constructive possession of the suit property had vested with the defendant with effect from 01.03.2020 i.e. the time of commencement of the lease deed, and the defendant had already paid advance rent for the month of March 2020 and also security deposit equivalent to rent for two months, and in the absence of any tenable explanation for not physically occupying the suit property, the defendant cannot claim the impossibility of performance of the lease agreement. Though, defendant has examined DW1 Dr. Ajay Dhongade to prove the medical documents Ex.DW1/1 showing the co-morbidities of her husband Mr. Atul Kirloskar, but this in itself is not sufficient to assume any impossibility to travel to Delhi during the first two weeks of March 2020. Rather, if we see the purpose of renting out the suit property by the defendant that she along with her husband wanted to take care of their daughter who had given birth to a child, they ought to have traveled to Delhi in or around the time of commencement of lease deed i.e. 01.03.2020.
18.4. The inapplicability of the doctrine of frustration or impossibility of performance of contract, in case of lease deed, has been spelt out by High Court of Delhi in case titled as Ramanand & Ors Vs. Dr. Girish Soni and Anr, CM APPL 10848/2020, dated 21.05.2020, in para 15, 16 and 17 which are as under:
"15. In the absence of a contract or a contractual term which is a force majeure clause or a remission clause, the tenant may attempt to invoke the Doctrine of Frustration 29 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar of contract or `impossibility of performance', which however would not be applicable in view of the settled legal position set out below. The said doctrine of `impossibility of performance' is encapsulated in Section 56 of the ICA, which reads as under:
"56. Agreement to do impossible act. -- An agreement to do an act impossible in itself is void. Contract to do an act afterwards becoming impossible or unlawful.
-- A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Compensation for loss through non- performance of act known to be impossible or unlawful. -- Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise."
16. There are various conditions that have to be fulfilled to satisfy the conditions of `impossibility' under Section 56. However, in the context of a tenant's obligations, the Supreme Court had the occasion to consider this doctrine in the case of Raja Dhruv Dev Chand v. Raja Harmohinder Singh & Anr., AIR 1968 SC 1024 where the tenant who had rented agricultural lands in Punjab which he could not utilise due to the 1947 Partition, sought refund of the rent 30 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar paid by him for the said land for Kharif season 1947 and Rabi season 1948. The Supreme Court, after considering the law on `impossibility of performance' from various jurisdictions, held that in the Indian context Section 56 "lays down a positive rule relating to frustration of contracts and the Courts cannot travel outside the terms of that section".
The Court held that Section 56 does not apply to lease agreements.
The Court drew a distinction between a `completed conveyance' and an `executory contract' and observed:
"9. We are unable to agree with counsel for the appellant in the present case that the relation between the appellant and the respondents rested in a contract. It is true that the court of wards had accepted the tender of the appellant and had granted him a lease on agreed terms of lands of Dada Siba Estate. But the rights of the parties did not after the lease was granted rest in contract. By Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate to contracts are to be taken as part of the Indian Contract Act, 1872. That section however does not enact and cannot be read as enacting that the provisions of the Contract Act are to be read into the Transfer of Property Act. There is a clear distinction between a completed conveyance and an executory contract, and events which discharge a contract do not invalidate a concluded transfer.
10. By its express terms Section 56 of the Contract Act does not apply to cases in which there is a completed transfer. The second 31 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar paragraph of Section 56 which is the only paragraph material to cases of this nature has a limited application to covenants under a lease. A covenant under a lease to do an act which after the contract is made becomes impossible or by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawful. But on that account the transfer of property resulting from the lease granted by the lessor to the lessee is not declared void.
11. By the agreement of lease the appellant undertook to pay rent for the year 1947-48 and the Court of Wards agreed to give on lease the land in its management. It is not claimed that the agreement of lease was void or voidable. Nor is it the case of the appellant that the lease was determined in any manner known to law. The appellant obtained possession of the land. He was unable to continue in effective possession on account of circumstances beyond his control. Granting that the parties at the date of the lease did not contemplate that there may be riots in the area rendering it unsafe for the appellant to carry on cultivation, or that the crops grown by him may be looted, there was no covenant in the lease that in the event of the appellant being unable to remain in possession and to cultivate the land and to collect the crops, he will not be liable to pay the rent. Inability of the appellant to cultivate the land or to collect the crops because of widespread riots cannot in the events that transpired clothe him with the right to claim refund of the rent paid...."
17. The above judgment laid down 32 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar unequivocally that a lease is a completed conveyance though it involves monthly payment and hence, Section 56 cannot be invoked to claim waiver, suspension or exemption from payment of rent. This view of the Supreme Court has been reiterated in T. Lakshmipathi and Ors. v. P. Nithyananda Reddy and Ors., (2003) 5 SCC 150, as also in Energy Watchdog (supra)."
18.5. Thus, it is held that in the obtained factual position noted above, the performance of the lease agreement Ex.PW1/1 had already initiated by constructive delivery of possession of the suit property to the defendant and deposit of rent by her for the month of March 2020, there does not arise any occasion to hold that the lease agreement became impossible to perform due to the onset of Covid-19 pandemic. Issue no.5 is, thus, decided against the defendant and in favor of the plaintiff.
Issue no.6: Whether the plaintiff is entitled for recovery of possession of the suit property? OPP.
19. From the pleadings on record, and specifically the prayer clause, it is made out that plaintiff has not sought recovery of possession of the suit property, for obvious reason that the suit property was never physically transferred to the defendant and after termination of the lease agreement Ex.PW1/1, the suit property stood vested with the plaintiff. Thus, in the absence of any prayer in regard to recovery of possession of the suit property, this issue stands struck of in exercise of power under Order 14 Rule 5 CPC and no finding is warranted thereon.
Issue no.7:- Whether the plaintiff is entitled for recovery of arrears of rent and interest thereon from the defendant, as claimed? OPP.
33 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar
20. The onus to prove this issue is upon the plaintiff. However, the legal position as culled out from catena of judgments is that, after termination of the lease deed Ex.PW1/1 by the defendant vide email dated 02.06.2020 Ex.PW1/5, the act of the plaintiff in persisting with the lease agreement and shooting of further emails dated 05.06.2020 Ex.PW1/6, 07.07.2020 Ex.PW1/10, 30.07.2020 Ex.PW1/14 till 07.12.2020 Ex.PW1/21 calling upon the defendant to deposit the rent, was not legally sustainable. Rather, the appropriate course for the plaintiff was to claim damages from the defendant for committing breach of lease agreement.
21. Before building further upon this, let me canvass the relevant case laws on this:
22. In a case titled as Express Netweb Solutions Private Ltd Vs. IVK Mobile Pvt Ltd, OMP (Comm.) 532/2016, deicded on 01.08.2018, High Court of Delhi, it was observed as under:
"5. Learned counsel for the petitioner, relying upon Clause 2.2 of the Lease Deed, submits that the said Clause prohibits termination of the lease within the Lock-in period and as the respondent has been held guilty of breach of the Lease Deed, as a necessary sequitur, it should have been held liable to pay the rent for the balance Lock-in period as well.
6. I am unable to agree with the said submission. A breach of Clause 2.2 of the Lease Deed would indeed make the respondent in breach of the contract. For such breach, the petitioner would then 34 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar have to prove its damages in accordance with Section 73 of the Indian Contract Act, 1872 (hereinafter referred to as the 'Contract Act'). In the present case, it has not been claim by the petitioner that the Lease Deed contains any provision for liquidated damages as provided under Section 74 of the Contract Act and therefore, onus of proving damages under Section 73 of the Contract Act was on the petitioner."
23. The aforesaid case was more or less similar to the present case as therein also the lease period agreed upon was for three years commencing from 19.08.2011 and clause 2.2 of the lease deed provided for restriction on the right of the lessee to terminate the lease deed until the expiry of initial three years period which was prescribed as the lock in period, however, for some reason, the lease deed was terminated by sending a notice dated 28.02.2013 with effect from 31.05.2013 and a dispute arose between the parties that the lease deed could not be terminated during the lock in period and in any case even if the lessee vacated the premises, it was liable to pay the lease rental for unexpired period of the lock in period. But this contention was negatived and the court declined to interfere with the award of the arbitrator whereby the arbitrator had only granted nominal damages quantified at Rs.60,000/- in the absence of any evidence in support of claim of damages for breach of contract.
24. On the anvil of the aforesaid case law, in the instant case, plaintiff instead of claiming damages for breach of contract, has claimed arrears of rent, which is not permissible.
25. Similarly, in case titled as Deepak Chopra Vs. Flakt (India) Pvt 35 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar Ltd, CS(OS) 3032/2014, decided on 06.01.2020, High Court of Delhi, the entire period of the lease of six years was the lock in period and neither party had any right to terminate the lease, but the defendant terminated the lease deed within the lock in period and the court had held as under:
"11. The position with respect to rent of lock-in period is akin to that of earnest money/security and qua which the Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136, followed by me in Speed Track Cargo Vs. State Bank of Patiala 2016 SCC OnLine Del 919, Palm Art Apparels Pvt. Ltd. Vs. Enkay Builders Pvt. Ltd. 2017 SCC OnLine Del 12776, Mera Baba Pvt. Ltd. Vs. Ram Lubhaya Puri 2018 SCC OnLine Del 9502, Klintoz Pharmaceuticals Pvt. Ltd. Vs. Ravinder CS(OS) 3032/2014, Shankar Mathur 2018 SCC OnLine Del 11954, Satish Verma Vs. Garment Craft (India) Pvt. Ltd.
2018 SCC OnLine Del 6829 and Mahendera Verma Vs. Suresh T. Kilachand 2019 SCC OnLine Del 9333, held that mere entitlement in the agreement to forfeit is not enough and loss/damages from breach of contract has to be proved. In fact, the matter is no longer resintegra. The Division Bench of this Court in Tower Vision India Pvt. Ltd. Vs. Procall Pvt. Ltd. 2012 SCC OnLine Del 4396 (DB) has held that rent of the lock-in period in a Lease Deed cannot be claimed without pleading loss from vacation by the tenant of the property prior to the expiry of the term of lease. I have also, following the said dicta of the Division Bench, in order dated 2nd December, 2019 in CS(COMM)
36 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar 1438/2016 titled L.R.Builders Pvt.
Vs. Goldenera Leisure & Entertainment Pvt. Ltd. and order dated 18th December, 2019 in CS(OS) 1789/2006 titled Sunita Rekhi Vs. Y.D.Puri taken the same view."
26. The exegesis of the aforesaid case law is that the rent of the lock in period in the lease deed cannot be claimed without pleading loss from vacation by the tenant of the property prior to the expiry of terms of lease deed. In the instant case also, there is no such pleading on the part of the plaintiff that after the receipt of email dated 02.06.2020 Ex.PW1/5 from the defendant intending to terminate the lease before expiry of lock in period, any steps were taken on behalf of plaintiff to mitigate the loss by renting out the property to some other tenant. The plaintiff has gravitated in a different direction whereby he had refused to accept the termination of the lease deed without contemplating that the said act of termination, even if unwarranted, would amount to breach of contract which would have entitled the plaintiff to sue for damages. But the plaintiff was tenacious about the lease agreement and persisted on calling the defendant to pay the monthly rent as per the lease agreement and upon failure of the same, plaintiff considered the termination of the lease agreement by efflux of time and instituted the present suit seeking arrears of rent. It is lucid that the position of law is at variance with the act of the plaintiff in persisting with the lease, which had stood terminated.
27. The judgments alluded to by Ld. Counsel for defendant in Soril Infra Resources Ltd (Supra) and Manju Bagai (Supra) are also on the same principle of law.
28. In the backdrop of the aforesaid, the plaintiff is not entitled to 37 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar claim arrears of rent, as per the prayer clause. This issue is, thus, decided against the plaintiff and in favor of the defendant.
29. In so far as arrears of rent from the month of March 2020 till the termination of the lease by the defendant, it is an unchallenged position that the rent for the month of March 2020 has already stood paid in advance and defendant has already proposed to forgo security amount of two months, in lieu of rental for the month of April and May 2020. Thus, plaintiff is not found entitled to grant of any further amount over and above this.
30. Before parting with the judgment, I am moved to emphasize that in the present case, the plaintiff has thrown the humanity to the winds by not considering the genuine plea of the defendant in terminating the tenancy given her peculiar circumstances of being miles away from Delhi during the unprecedented crises in the form of Covid-19 pandemic which had befallen to the people across the world. On the other hand, the defendant, by offering to forgo her security deposit to the tune of two months rental amounting to Rs.8,60,000/- approximately plus the monthly rental of Rs.4,33,000/- for the month of March 2020, even without occupying the suit property for a single day, has demonstrated and exhibited an utmost fair conduct, and thus, considering and balancing the equities also, the plaintiff is not entitled to the reliefs sought. It is understandable that the plaintiff may have been inconvenienced after the abrupt termination of the lease agreement by the defendant during the lock in period and it would have been difficult for the plaintiff to have looked for other tenants to mitigate his losses, but the time was such that it was expected of the people to have fought together against the alien which had endangered to wipe out the human species and in furtherance of this, plaintiff was expected to have 38 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar extended some cooperation and compassion to the defendant.
Issue no.8:- Whether the plaintiff is entitled for interest, if so at what rate and for which period? OPP.
31. In view of the finding in issue no.7 whereby the plaintiff is not found entitled for recovery of arrears of rent, there does not arise any question to claim the interest for any period. This issue is also accordingly decided against the plaintiff and in favour of the defendant.
32. In the face of the aforesaid discussion and my finding of issue no.4, 7 and 8, the suit of the plaintiff is found to be merit less and is accordingly dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
Announced & dictated in the open court on 27.07.2023 (Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 27.07.2023 Certified that this judgment contains 39 pages and each page bears my signatures.
(Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 27.07.2023 39 CS DJ NO.588/2021 Mrs. Vandana Dhirani Vs. Mrs. Arti Kirloskar