Delhi High Court
Zoom Communications Pvt. Limited vs Shri Brij Mohan Punj on 8 February, 2021
Equivalent citations: AIRONLINE 2021 DEL 326
Author: Manmohan
Bench: Manmohan, Asha Menon
$~Suppl.-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 25/2021, CM APPLs.29255 & 29258/2020 &
3649/2021
ZOOM COMMUNICATIONS PVT. LIMITED .....Appellant
Through: Mr. Pawanjit Singh Bindra, Advocate.
Versus
SHRI BRIJ MOHAN PUNJ .....Respondent
Through: Mr. Darpan Wadhwa, Sr.Advocate
with Mr. Nikhil Singhvi and Mr.
Mohit Seth, Advocates.
% Date of Judgement: 08th February, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J (Oral):
CM APPLs.29256-57/2020 Exemption allowed, subject to all just exceptions. Accordingly, applications stand disposed of.CM APPL 3649/2021
Present application has been filed by the respondent/landlord seeking a direction to the appellant/tenant to deposit Rs. 45,78,329/- in the trial Court and Rs. 10,20,268/- being the rent for the month of October, 2020.
Issue notice.
Since the prayer in the present application overlaps with the prayer in FAO(COMM) 25/2021 Page 1 of 5 the main appeal, this Court takes up the main appeal itself for hearing and disposal.
Accordingly, application stands disposed of.
FAO (COMM) 25/2021
1. Present appeal has been filed challenging the order dated 30th October, 2020 passed by the learned District Judge directing the appellant/tenant to deposit Rs. 90,78,329/- with the trial court.
2. Learned Senior Counsel for the appellant states that the suit itself filed by the respondent/landlord is infructuous, as the amount in dispute stands fully paid.
3. In the alternative, he states that the outstanding amount of alleged rent even as per respondents/landlords' calculation would not be more than fifteen lakhs if the security deposit of Rupees fifty two lakhs (Rs.
52,00,000/-) given by the appellant is adjusted against the alleged outstanding amount, as it should be.
4. Per contra, learned counsel for the respondent/landlord submits that the registered lease deed dated 30th June, 2017 contains a six year lock-in period i.e. till 16th November, 2023. He emphasises that the rent for the lock-in period would amount to Rupees four crores (Rs. 4,00,00,000/-).
5. He points out that the appellant/tenant had stopped paying rent from October, 2019 and had unilaterally vacated the suit property on 31st October, 2020. He emphasises that the lease deed provides for payment of interest @ 18% on unpaid/outstanding rentals.
6. In rejoinder, learned counsel for the appellant submits that a Coordinate Bench of this Court in "Tower India Pvt. Ltd. and Ors. Vs. FAO(COMM) 25/2021 Page 2 of 5 Procall Private Limited and Ors." MANU/DE/4958/2012 has held that the rent payable for the lock-in period is not an admitted debt. He also reiterates that the security deposit amount of Rupees Fifty Two Lakhs (Rs. 52,00,000/-) should have been adjusted by the Trial Court while deciding Order XXXIX Rule 10 CPC application filed by the respondent/landlord.
7. Having heard learned counsel for the parties, this Court is of the opinion that if the appellant/tenant is of the view that the present suit is infructuous on the ground that the suit amount stands fully paid, it should file an appropriate application before the Trial Court. This Court has no doubt that in the event, such an application is filed, the same shall be considered in accordance with law. However, this liberty cannot be construed as a ground not to comply with the impugned order by virtue of which an ad hoc ad-interim arrangement has put in place by the Trial Court pending disposal of the suit.
8. Further, undoubtedly, the amount due and payable for the lock-in period would have to be proved by the respondent/landlord as a genuine pre- estimate of damages.
9. The doctrine of mitigation of damages would apply too. In the event, the respondent/landlord is in a position to get a higher rent for the remainder part of lease, the respondent/landlord would not be entitled to any compensation but this is a fact which the appellant would have to prove.
10. However, in the present case, the respondent/landlord is only claiming the previous admitted rent (actually paid by the appellant/tenant) as liquidated damages for the lock-in period. In any event, as the appellant/tenant has vacated the premises on 31st October, 2020 nearly three FAO(COMM) 25/2021 Page 3 of 5 years prior to expiry of the lock-in period, this Court is of the prima facie view that it would be liable to pay a reasonable amount as compensation, even if not the entire rental as claimed by the respondent/landlord, as the suit premises is still lying vacant.
11. This Court is also of the prima facie opinion that the Division Bench judgment in Tower India Pvt. Ltd. and Ors. Vs. Procall Private Limited and Ors. (supra) is not applicable to the facts of the present case as in the said judgment it was held that rent payable for the lock-in period was not an 'admitted debt' within the meaning of Section 433(e) of the Companies Act, 1956.
12. This Court is of the prima facie view that rent for the lock-in period can be considered by the trial court while putting in place an interim arrangement in the suit for recovery filed by the respondent/ landlord.
13. This Court also finds that the Trial Court in the impugned order has balanced the equities only and directed an ad hoc amount to be deposited in Court pending final hearing of the suit.
14. In Wander Ltd. and another v. Antox India P. Ltd., 1990 (Supp) SCC 727 the Supreme Court has delineated the principles on which an appellate court may interfere with discretion exercised by the Trial Court. The relevant portion of the said judgment is reproduced herein below:-
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion FAO(COMM) 25/2021 Page 4 of 5 is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
15. Consequently, this Court is of the view that the impugned order calls for no interference. Accordingly, the present appeal along with pending applications is dismissed. Since the appellant has paid Rs.45,00,000/- during the pendency of the present appeal, it is given four weeks to deposit Rs.45,78,329/-, in compliance with the impugned order, with the trial court.
16. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail.
MANMOHAN, J ASHA MENON, J FEBRUARY 08, 2021 TS FAO(COMM) 25/2021 Page 5 of 5