Delhi High Court
Mrs. Purnima Dhawan And Anr. vs Agmoz Online Pvt. Ltd. on 3 September, 2002
Equivalent citations: 2003(66)DRJ218, 2002 A I H C 4593, (2003) 103 DLT 572 (2003) 66 DRJ 218, (2003) 66 DRJ 218
Author: Sharda Aggarwal
Bench: Sharda Aggarwal
JUDGMENT Sharda Aggarwal, J.
1. This order shall dispose of the plaintiffs' application under Order 39 Rule 10 CPC (IA.No. 8843/2001) for directions to the defendants to pay the rental arrears/damages/mesne profits and the defendants application under Section 151 CPC (IA.No. 3521/2002) for modification of order dated 20th March, 2002 passed in CCP No. 37/2002 and order dated 19th October, 2001 passed on the application under Order 39 Rule 10 CPC. By this order, I also propose to dispose of the contempt petition (CCP 37/2002).
2. In this suit for ejectment and recovery of rent, the plaintiffs have alleged that premises in question being the ground floor of the building D-302, defense Colony, New Delhi were let out to the defendant company on payment of Rs. 40,000/- as monthly rent (Rs. 25,000/- towards rent + Rs. 15,000/- towards watch and ward) w.e.f. 1st July 2000 by virtue of unregistered lease agreement dated 29th June, 2000 and watch and ward agreement of the same date. The relationship of the parties is not disputed nor the execution of the two agreements is in dispute. The fact that interest free security deposit of Rs. 1,60,000/-, refundable at the time of vacation of the demised premises, was paid by the defendant to the plaintiffs at the time of execution of the lease agreement, is also not dispute. Admittedly, for four months i.e. 1st July, 2002 to October, 2000, the defendant paid the rent. The defendant, however, stopped paying the same w.e.f. November, 2000.
3. The defendant's case is that on account of some construction on the first floor of the demised premises, defendant could not enjoy the premises as there was constant disturbance on account of the construction. There is some correspondence between the parties on this issue. The defendant had sent an e-mail dated 22nd February, 2001 stating that for eight months, the defendant would be deducting the amount of Rs. 10,000/- per month towards damages for non-enjoyment of the premises. This indicated that the defendant, as per this letter, had admitted his liability to pay at the rate of Rs. 30,000/- for the said period. The defendant's further claim is that the plaintiffs had in fact not provided any security as contemplated under the Watch & Ward Agreement.
4. The plaintiffs application under Order 39 Rule 10 CPC came up for hearing on 19th October, 2001 when after taking into consideration the respective pleas of the parties. Court issued directions to the defendant to pay the arrears of rent in the following terms:
"Admittedly as per Lease Agreement, between the parties, the defendant was required to pay Rs. 40,000/- per month to the plaintiffs (Rs. 25,000/- towards interest and Rs. 15,000/- for watch and ward). There is some dispute regarding payment of amount for certain period. It is the case of the defendant that due to some construction on the first floor of the demised premises, the defendant could not use the premises for some period. The defendant had sent E-mail dated 22nd February, 2001 stating that for eight months the defendants would be deducting the amount at Rs. 10,000/- per month. Thus even as per this letter the liability to pay, at the rate of Rs. 30,000/- for this period, is not disputed. The defendant states that since watch and ward is not provided by the plaintiffs, the rent offered for the period of August, September and October is Rs. 25,000/- plus Rs. 5,000/-. The defendant shall in these circumstances pay the plaintiffs at the rate of Rs. 30,000/- for the entire period after adjusting the amount already paid within four weeks and at the rate of Rs. 10,000/- which is disputed amount, the amount shall be deposited in the Court within eight weeks. Insofar the fate of amount deposited in the Court is concerned, the same will be determined and necessary orders would be passed in this respect while disposing of this IA.
List again on 11th April, 2002."
5. The defendant failed to comply with the order dated 19th October, 2001 which lead the plaintiff to file CCP.No. 37/2002. In the contempt petition, it is alleged that after passing of the order dated 19th October, 2001, the defendant made payment of Rs. 63,525/- (after deducting TDS) for three months leaving a substantial balance towards arrears. There was also no deposit in the Court at the rate of Rs. 10,000/- as directed in the said order. The plaintiffs in the contempt petition sought directions to the defendant to pay the entire rent and make the deposit at the rate of Rs. 10,000/- per month in the Court as per the directions in the order dated 19th October, 2001. The plaintiffs also prayed that the Directors and the Principal Officer of the defendant company be punished for contempt. The plaintiffs further prayed that in view of the non-compliance of the order of the Court, the defense of the defendant be struck off.
6. Learned counsel for the defendant, who appeared in response to the contempt petition, pleaded that the defendant was unable to make the payment in compliance of the order dated 19th October, 2001 on account of financial difficulties. However, as the defendant agreed to pay Rs. 75,000/- within a week, the following order was passed on 30th March, 2002:
"Vide orders dated 9th October, 2001 the Defendant was directed to pay the Plaintiff at the rate of Rs. 30,000/- for the entire period after adjusting the amount already paid and at the rate of Rs. 10,000/-, which was to be deposited in the Court within eight weeks. Learned counsel for the Defendant states that the Defendant is in a financial difficulty and is unable to make the payment. He also seeks time to file reply. The Defendant would make the payment of Rs. 75,000/- as agreed within a week to the Plaintiff and balance payment by 11th April, 2002, failing which the Defendant's defense would be struck off.
List, on 11th April, 2002. In the meanwhile, reply be filed."
7. The defendant even failed to comply with the order dated 20th March, 2002. Instead an application (TA.No. 3521/2002) praying for modification/clarification of the order dated 20th March, 2002 was moved. By this application, the defendant pleaded financial hardship alleging that the company was running into losses and as such could not comply with the court directions. In the application, the defendant repeated the plea about the inconvenience caused to the defendant on account of construction on the first floor of the demised premises for which the defendant also sought adjustment of Rs. 60,000/- as compensation. The defendant also claimed that after adjusting the payments already made and Rs. 60,000/- being compensation for the inconvenience, the balance rent be adjusted against the security deposit of Rs. 1,60,000/- which was paid at the time of commencement of tenancy. According to defendant's calculation, as given in Annexure 'A' to the reply to the contempt petition, only a sum of Rs. 1,45,000/- was payable as against the order dated 19th October, 2001, which was sought to be adjusted against the refundable security deposit of Rs. 1,60,000/- and thus according to the defendant nothing remained due against the said order. The defendant accordingly sought the modification of the order dated 20th March, 2002. It is, however, pertinent to note that while giving this calculation, the defendant is completely silent about the deposit at the rate of Rs. 10,000/- as mentioned in the order dated 19th October, 2001. The defendant also prays that in case that Court still directs that the amount is payable by the defendant, the Managing Director of the defendant would pay the same as per his undertaking in the affidavit supporting the application.
8. The application is opposed by the plaintiffs. A statement of account showing the payments received and due from the defendant has been filed Along with the reply.
9. Admitted facts which emerge from the pleadings of the parties are that the demised premises were let out by the plaintiffs to the defendant for a period of two years by virtue of an unregistered lease agreement dated 29th June, 2000 and Watch and Ward Agreement of the same date for a total rental of Rs. 40,000/- per month (Rs. 25,000/- towards rent + Rs. 15,000/- towards watch and ward). The lease commenced from 1st July, 2000. An interest free security deposit of Rs. 1,60,000/- refundable at the time of vacation of the suit premises is also not disputed.
10. The learned counsel for the defendant, inter alia contended that the defendant due to inconvenience caused on account of construction on the first floor of the demised premises, had to incur an expenditure of Rs. 1,20,000/- by holding meetings etc in various hotels and restaurants and the same needs to be adjusted against rent. According to the plaintiffs, the first floor did not belong to the plaintiffs and as such the plaintiffs were not responsible for any inconvenience caused to the defendant. The defendant's plea is that they could not use the premises for the purposes it was pleased. It is, however, not the case of the defendant that he had been deprived of the possession of any part of the demised premises. In any event, it does not stand to reason that, if the premises had been rendered incapable of enjoyment, why did the defendant continue to remain in possession thereof, despite there being a clause in the agreement which enabled the defendant to determine the lease by giving a two months notice to the plaintiff. Be that as it may, the question as to whether the defendant is entitled to adjust/set off any damages for the alleged inconvenience caused to him on account of construction on the first floor, can be decided only after recording evidence and not at this stage. The defendant in nay case remained in occupation of the demised premises and has not filed a counter claim. As such the alleged adjustment of Rs. 60,000/- as claimed in the application is prima facie not allowable.
11. The contention of the defendant that the security deposit of Rs. 1,60,000/- is liable to be adjusted against the rent is devoid of any force. The security deposit paid at the time of commencement of the tenancy is refundable only at the time of vacating the premises. The same cannot be adjusted against the rent at this stage.
12. He parties have given their own calculations and details to show as to what amount has been paid towards rent and what remains due. Calculations have been given as on different dates according to the applications and replies filed by the parties. In short, there is some dispute about the actual payments which would finally be sorted out after trial. In any case, the fact remains that orders dated 19th October, 2001 and 20th March, 2002 have not been complied with. Even if it is assumed that the calculation of the defendant is correct, admittedly no deposit in Court as per the order dated 19th October, 2001 has been made nor any explanation for the same has been given except alleging financial difficulty. Since the defendant is continuing to have the possession of the demised premises and enjoying the same, he must pay the rent/mesne profits/damages to the plaintiffs. Accordingly, the order dated 19th October, 2001 is made absolute and the defendant is directed to pay the plaintiffs at the rate of Rs. 30,000/- for the entire period i.e. July, 2000 up to date after adjusting the amount already paid towards rent within four weeks and continue to pay every month at that rate till the disposal of the suit. The defendant is further directed to deposit in Court, the disputed amount at the rate of Rs. 10,000/- per month for the entire period commencing from July, 2000 till date within four weeks and thereafter continue to deposit at that rate every month till the disposal of the suit. The payment as directed above at the rate of Rs. 30,000/- per month and deposit at the rate of Rs. 10,000/- per month will be without prejudice to the rights and contentions of the parties on merits. The rate of deposit in Court would be decided after trial. Accordingly, the application of the defendant (IA.No. 3521/2002) is dismissed and the plaintiffs application under Order 39 Rule 10 CPC (IA.No. 8843/2001) is allowed in terms of the above directions.
13. As regards the contempt petition, learned counsel stneuously contends that the defendant deliberately and willfully disobeyed the orders dated 19th October, 2001 and 20th March, 2002 and as such the defendant company's Directors/Managing Directors be punished for contempt. Vide orders dated 19th October, 2001 certain directions were issued against the defendant for payment of arrears of rent and also to deposit the disputed amount in the Court. The defendant has pleaded financial difficulty on account of which the order could not be complied with. It is pleased that the non-compliance of Court's order was neither willful nor deliberate.
14. Perusal of the orders dated 19th October, 2001 and 20th March, 2002 show that there were directions for payment money. The defendant pleads financial difficulty. From the facts and circumstances of this case it appears that though there has been non-compliance of the orders/directors dated 19th October, 2001, but the same does not appear to be willful and deliberate. For this non-compliance, the defendant's defense can be struck out. The facts, however, do not warrant an action for contempt. The contempt petition is accordingly dismissed.
15. Regarding the contention of the plaintiffs that the defense of the defendant is liable to be struck out, my attention has been drawn to the order dated 20th March, 2002. In that order, on defendant's agreeing, the defendant was given further time to make payment and it was made clear that in the event of non-compliance, the defense would be struck off. In any case, in the interest of justice, as per the orders passed above, the defendant is granted four weeks time to pay the entire arrears of rent and to deposit the arrears up to date. Therefore, at present, I refrain from striking out the defense of the defendant. However, if the defendant fails to pay and deposit the arrears, as directed above, within four weeks, the defense of the defendant shall stand struck off. Ordered accordingly.
16. To be listed before the appropriate Bench for reporting compliance on 8th October, 2002.