Delhi District Court
Cs No. 214/16 Body Spa International ... vs . B.S.M. Developers Pvt. Ltd. on 28 November, 2016
Page 1 of 26
IN THE COURT OF Ms. SUNENA SHARMA
Additional District Judge - 03 (South-East)
SAKET COURTS COMPLEX: NEW DELHI
CS No.214/14
Unique Case ID No.02406C0288222012
Date of Institution : 22.11.2012
Arguments concluded : 26.11.2016
Date of decision : 28.11.2016
Body Spa International Pvt. Ltd.
Through its Director
Sh. Jatinder Jit Singh Walia
B-11, Greater Kailash Enclave-I,
New Delhi
............. Plaintif
VERSUS
B.S.M. Developers Pvt. Ltd.
Through Mr. Bhupinder Singh
Director
B-32, Lajpat Nagar-II,
New Delhi
............... Defendant
JUDGMENT
1. Vide this judgment, I shall decide both the suit as well as the counter claim. Present suit has been filed by the plaintif for seeking relief of mandatory injunction and recovery of an amount of Rs. 11,00,000/- (Rupees Eleven Lacs Only).
CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 2 of 262. The brief facts of the plaintif's case are that the plaintif, which is a private limited company engaged in the business of owning, operating, maintaining and running the chain of beauty and Health Therapy Centre, in and around Delhi, was approached by the defendant for leasing out the basement of defendant's property at Lajpat Nagar, New Delhi. It was represented by the defendant that the basement of said property has been developed for the purpose of running a massage parlor and the same can be used for said purpose as many other basements of various other buildings in the vicinity are being used for said purpose. Accordingly, a lease agreement dated 08.06.2012 was executed between the parties vide which defendant let out the furnished basement of property no. B-32, Lajpat Nagar II, New Delhi (hereinafter referred as suit property) at monthly rent of Rs. 2,75,000/- for the period of nine years commencing from 15.06.2012 subject to increase of rent by 15% after every three years. As per the terms and conditions of the lease agreement plaintif paid an interest free security of sum of Rs. 8,25,000/- (equivalent to three months' rent) refundable on the expiry/determination of lease. Plaintif also issued 12 post dated cheques in favour of the defendant for payment of monthly rent of initial period of one year. It was specifically covenanted in the lease that the suit property shall be used only for permissible purposes and if the plaintif/lessee is prevented for using the rented premises by any authority for any reason whatsoever CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 3 of 26whether attributable to the lessee or lessor the only remedy available to the plaintif/lessee would be to forthwith terminate the lease and surrender the vacant physical possession to the defendant and upon happening of such event, the liability of plaintif/lessee for payment of rent shall cease to run.
3. In terms of lease agreement, plaintif commenced the operation of the business from the suit property in the month of June, 2012 and immediately thereafter plaintif applied to MCD for grant of license to run the business. However, his application was rejected by the MCD vide its notice dated 31.08.2012 and plaintif was advised to close down the trade failing which the action was proposed to be initiated against him under DMC Act. Upon receipt of said letter from the MCD, plaintif vide legal notice dated 01.09.2012 terminated the tenancy forthwith in terms of Clause (3.3) and (6.1) of the lease deed and notice of termination of tenancy was served upon the defendant and in said notice defendant was also requested to refund the security amount of Rs.8.25 lacs and the amount of Rs.2.75 lacs paid towards one month advance rent; to return the nine post dated cheques handed over to the defendant towards rent as the rent for the month of June, July and August, 2012 stood already paid and to take back the possession of the rented premises as the plaintif was ready to surrender the same because in view of the refusal of license by the MCD, the plaintif was unable to run his business CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 4 of 26activity in said premises.
4. However, the defendant instead of complying the aforementioned notice, gave a reply to the same whereby defendant refused to take back the possession and also refused to accept the determination of lease on false and baseless grounds. Hence, present suit filed before this court for recovery of sum of Rs. 11,00,000/- alongwith 24% p.a. interest for the period w.e.f. 01.09.2012 till date of filing of suit. Plaintif has also prayed for pendentlite and future interest on the decreetal amount, at the same rate.
5. After service of summons of the suit, defendant put appearance in the matter and filed his written statement cum counter claim. In the counter claim, defendant has sought recovery of sum of Rs. 20 lacs towards rent of 11 months and 15 days which is allegedly the rent due for remaining period of the lock in period of eighteen months as it is alleged that plaintif had no right to determine the lease agreement within lock in period of eighteen months which was to commence from 15.06.2012. And since the plaintif paid the rent of two and a half months, i.e. for the period w.e.f. 15.06.2012 till 31.08.2012 and the rent for the month of September to December, 2012 was received by defendant by way of adjustment against one month advance rent and three months security deposit, the rent for six and a half CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 5 of 26months stands paid and rent for the remaining period of lock in period i.e. for eleven and a half months to the tune of Rs.31,62,500/-, is due and payable by plaintif. Defendant however, restricted his claim only to the tune of Rs.20,00,000/- upon which he paid the court fees of Rs.60,000/-.
6. In the written statement, defendant did not dispute the execution of lease deed dated 08.06.2012 but defendant categorically denied its liability to refund the security deposit or the advance monthly rental on the basis of the plea that at the time of negotiation for taking the defendant's property on rent, it was made clear to the plaintif that the premises will be let out only for the use for permissible purposes and plaintif had represented that SPA business is permissible in law saying that he is already running similar business from the basement at other locations in Delhi. It is further defendant's case that after said representation of plaintif it is finally agreed that if the SPA business is permissible, the plaintif may use the suit premises for the said business and if it is not permissible, the plaintif may use the premises only for the permissible purpose. The plaintif accepted the said terms and accordingly as per the requirement of plaintif, the defendant renovated the rented premises by incurring expenses to the tune of Rs.50 lacs and it took the defendant two and a half months.
CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 6 of 267. Defendant further took the plea that the reference with regard to use of premises in Clause (7.1) in the lease deed was the reference with regard to permissible use and not with regard to impermissible use i.e. to say the tenancy was terminable before lock-in period only if the plaintif is prevented from using the premises for permissible purposes and not otherwise, whereas, MCD vide its notice dated 31.08.2012, instructed the plaintif to stop illegal use of premises which apparently show that plaintif applied for the license for using the premises for some impermissible purpose. It is further stated that upon enquiry defendant came to know that plaintif had started his business activity from the suit premises without first obtaining the requisite license and later on applied for a license for Barber Shop Saloon & Body Spa and not for Body Spa only, and since, the Barber Shop is not allowed in the basement, the license to run said activities was declined. It is further stated that since the plaintif was never preventive by any authority for using the premises for permissible purposes, the plaintif was not entitled to terminate lease before expiry of lock in period of eighteen months. It is further stated that in order to avoid its liability to pay the rental for the remaining lock in period, plaintif filed the present frivolous suit.
8. In the written statement filed to the counter claim plaintif categorically denied its liability to pay any amount to the defendant by saying that the suit property which was built by CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 7 of 26plaintif without any sanction plan from the competent authority was let out to plaintif on false representation that the basements in the area can be used for the purpose of plaintif business and defendant further undertook to facilitate the grant of license and since the license was refused by the MCD, the plaintif was compelled to terminate the lease in accordance with the terms and conditions of the lease deed dated 08.03.2012. It is further stated that the defendant after having put into possession of the suit property by the plaintif, has let out the same premises to another person, who is carrying out the SPA business without any license and sanction from the authorities.
9. In the replication filed to the written statement of defendant, plaintif reiterated his stand taken in the plaint and the written statement to the counter claim and denied the averments of the defendant's written statement as wrong and incorrect. In the replication filed to plaintif's written statement, defendant has also reiterated his stand taken in the counter claim and denied the averments of plaintif's written statement to the counter claim as wrong and incorrect.
10. Vide order dated 05.09.2013 following issues were jointly framed in the suit and the counter claim :-
1. Whether the lease/tenancy has been validily terminated by the plaintif vide legal notice dated CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.Page 8 of 26
01.09.2012 ? OPP
2. Whether plaintif is entitled for a decree for recovery of a sum of Rs.11 lacs against the defendant ? OPP
3. Whether plaintif is entitled to interest on the aforesaid amount, if so, at what rate and for which period ? OPP
4. Whether defendant is entitled to a decree in the sum of Rs.20 lacs against the plaintif ? OPD
5. Whether the defendant is entitled to interest upon the aforesaid amount, if so, at what rate and for which period ? OPD
6. Relief.
11. During trial plaintif examined three witnesses namely Jatinderjit Singh, the Director of the plaintif as PW1; Sh. Billey Singh and Sh. Narender Singh, Assistant Public Health Inspectors, SDMC, Central Zone, Lajpat Nagar as PW2 & PW3 respectively.
12. PW1 filed his evidentiary affidavit Ex. PW1/A wherein he deposed on the lines of contents of plaint which are not repeated herein for the sake of brevity. PW1 has relied upon the following documents:-
1. Board of Resolution dated 09.11.2012 as Ex. PW1/1;
2. Certificate of incorporation as Ex. PW1/2 (OSR);
3. Certified copy of lease agreement as Ex. PW1/3;
4. Copy of rejection letter issued by MCD as Ex. PW1/4;
5. Copy of legal notice dated 01.09.2012 and its postal receipt as Ex. PW1/5;
6. Reply dated 05.09.2012 of said legal notice as Ex. PW1/6;
7. Copy of another legal notice dated 03.10.2012 as Mark B;
8. Acknowledgment dated 04.10.2012 as Ex. PW1/8.
CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 9 of 2613. PW2 was called from the SDMC office, Central Zone, Lajpat Nagar for brining the record relating to the rejection letter dated 31.05.2012 but, he stated that the office copy of said document was not traceable as the same got misplaced due to shifting of record from one office to another office.
14. Thereafter, plaintif summoned another witness Sh. Narender who was examined as PW3, from the same office and after perusing the rejection letter dated 31.05.2012 from the record, PW3 deposed that he had written said letter in his own handwriting and the same was also bearing his signature at point A. The witness exhibited the rejection letter as Ex. PW3/A. PW3 further testified that as per the policy of department, no license could be issued for running Saloon, Spa Activities from any basement of the property. During his cross examination, when PW3 was asked about the relevant guidelines/policy which he had not brought, the witness was allowed to be re-examined upon plaintif's request and in his re-examination, PW3 stated that he could bring the guidelines/policy which were framed pursuant to the guidelines issued by Hon'ble Supreme Court in Uphar case, for prohibiting any such activity from the basement of properties. Accordingly, the witness was asked to bring the relevant guidelines/policy on the next date.
CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 10 of 2615. PW3 was recalled for his further re-examination on 22.04.2015 and on that date he brought the report Ex. PW3/B bearing his signatures at point A and the same was also attested by Deputy Health Inspector, Central Zone, Lajpat Nagar. Alongwith said report, he also filed the copy of gazette notification no.1156 dated 12.08.2008 vide which the amendments were brought in Delhi Master Plan, 2021. He exhibited his report dated 20.04.2015 as Ex. PW3/B by identifying his signatures at point A. After his re-examination on 22.04.2015, PW3 was never put to any cross examination as none had appeared for the defendant on said date and the witness was discharged.
16. In rebuttal, defendant examined only one witness i.e. its Director Sh. Bhupender Singh as DW1. DW1 filed his examination in chief by way of affidavit wherein he also deposed on the lines of defence put forth in the written statement. In addition, he further deposed that as per Clause (7.1) of the lease deed dated 08.06.2012, it was agreed that if the plaintif is prevented from using the premises for permissible purposes by MCD/DDA or any other authority only in that event, the tenancy can be terminated before expiry of lock in period and not otherwise. DW1 also relied upon the following documents:-
1. Letter dated 06.04.2012 as Ex. DW1/1;
2. Two visiting business cards as Ex. DW1/2 (colly);
3. List of equipments as Ex. DW1/3;
CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 11 of 264. Original Lease Deed dated 08.06.2012 as Ex. DW1/4;
5. Original Letter dated 11.06.2012 as Ex. DW1/5;
6. Original cheque no. 960064 & 960067 alongwith returning memos as Ex. DW1/6 & 7 (colly) respectively;
7. Original Letter dated 01.09.2012 as Ex. DW1/8;
8. Office copy of reply dated 05.09.2012 as Ex. DW1/9;
9. Office copy of Notice dated 18.09.2012 as Ex. DW1/10;
17. Both PW1 and DW1 were duly cross examined by respective opposite counsels and relevant part of their cross examination shall be discussed in later part of this judgment while giving issue-wise findings.
18. I have heard the arguments from both the sides and carefully perused the entire material available on record.
My issue-wise findings are as under:-
ISSUE NO.1:- Whether the lease/tenancy has been validily terminated by the plaintiff vide legal notice dated 01.09.2012 ? OPP
19. The onus of proving said issue was cast upon the plaintif. To discharge the onus the plaintif examined PW1 and as per his deposition which is in consonance with the averments of the plaint, the tenancy was terminated in terms of Clause (3.3) of lease deed dated 08.06.2012, because on account of rejection of plaintif's application for seeking license from MCD for running the CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 12 of 26business of Barber Saloon & Spa from the tenanted premises, plaintif was prevented from using the tenanted premises by MCD and in such eventuality, in terms of Clause (3.3) of said lease deed, the only remedy available with lessee/plaintif was to forthwith terminate the lease and to surrender the vacant physical possession to the lessor/defendant and accordingly, plaintif sent a legal notice dated 01.09.2012 i.e. Ex. PW1/5 to the defendant, thereby terminating the tenancy; asking the defendant to take back the possession of the suit property from the plaintif; to return the nine post dated cheques bearing no. 960064 to 960069, 960071 to 960073 and for refund of security deposit of Rs.8,25,000/- and advance rental of Rs.2,75,000/-.
20. On the other hand, defendant in its written statement as well as in the evidentiary affidavit of DW1 has come up with the plea that plaintif's act of terminating the lease deed during lock in period of eighteen months was in breach of Clause (7.1) of lease deed because the right to terminate the tenancy before expiry of lock in period of eighteen months was given to the lessee only when the lessee is prevented from using the premises for permissible purposes. Whereas, in the instant case plaintif started running its business of Barber Saloon and Spa without obtaining any license from the MCD as is apparent from plaintif's own letter dated 01.09.2012, wherein MCD asked the plaintif to stop illegal use only and not to stop permissible use for which the CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 13 of 26premises was let out. It is further the defendant's case that it was agreed upon between the parties that if Spa business is permissible then plaintif may use the suit premises for said purpose and therefore, it was specifically incorporated in Clause (3.1) & (3.2) of the lease agreement that premises shall be used only for the permissible purposes and lessee shall not do or cause to be done any act or activities of illegal, immoral or unsocial nature in the tenanted property.
21. In this regard, PW3 has deposed that as per entry no. 26 & 28 of gazette notification filed alongwith letter Ex. PW3/B, relating to amendments brought in Master Plan of Delhi 2021, only some specified category of professional activities were allowed but no business activities were permissible in the basement of any premises and in view thereof, plaintif's application to run SPA business activities from basement of premises no. B-32, Lajpat Nagar-II, New Delhi had been rejected vide letter Ex. PW3/A.
22. For correct appreciation of respective contentions of the parties, I deem it appropriate to reproduce the relevant clauses of the lease agreement dated 08.06.2012 and same read as under:-
3. USE OF DEMISED PREMISES 3.1 The Lessee shall use the demised premises only for the permissions CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.Page 14 of 26
purposes.
3.2 The Lessee shall not do or cause to be done any act or activities of illegal, immoral or unsocial nature in the demises premises.
3.3 If the Lessee is prevented from using the said premises by MCD, DDA or any other authority for any reason whatsoever, whether attributable to the Lessee or the Lessor, or due to any order passed by the court, the Lessor shall not be liable or responsible in any manner and the only remedy available to the Lessee would be to forthwith terminate the lease and to surrender vacant physical possession to the Lessor and upon surrender of possession, the liability on account of payment of rent shall cease to run. Any charges, however, if payable to MCD for commercial use, shall be paid by the Lessor.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE LEASE 5.6 The Lessee shall abide by all the prevalent Laws, Rules, Regulations, Office Orders, Court Orders in all respects including with regard to the construction and the user. And the Lessee shall not violate any of such Law, Rule or Regulation etc., in any manner whatsoever.
6. FORCE MAJEURE 6.1 That it is expressly agreed between the parties that if due to flood, earth quake or acts of God or because of any order or restriction of any Authority or Court, the demised premises cannot be used by the Lessee, the Lessee shall be at liberty to terminate the Lease and shall not be liable to pay any rent thereafter to the Lessor, provided the possession of the demised premises is surrendered to the Lessor. The Lessor shall not be liable to pay any damages or to reimbursement of any amount to the Lessee on any account whatsoever.
6.2 In the event the Lessee fails to surrender possession in terms of clause 6.1 above, the Lessee shall be deemed to be in use of the demises premises and shall continue to pay rent to the Lessor.
7. TERMINATION 7.1 That this Lease Deed cannot be terminated during the lock-in period of eighteen months by the Lessee, except under the circumstances where it is not possible to use the premises due to MCD/DDA hindrance or some other Govt. Agencies etc.. After the lock-in period of three years, the lease can be terminated by the Lessee by giving three months' (calculated after the expiry of lock-in period) prior CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 15 of 26notice in writing to the Lessor.
7.5 In the event of expiry or earlier termination of this Lease, in terms hereof, if the Lessor fails to refund to Lessee, the Security Deposit amount and/or all other amounts refundable in terms hereof or otherwise, after adjusting the amounts if any due, then in such event, without prejudice to the Lessee's right to recover the same, the Lessee shall be entitled to retain possession of the said premises without paying any rent or mesne profit whatsoever to the Lessor until such time the Lessor refunds the Security Deposit to the Lessee together with interest @18% per annum from the date the amounts become due, till the date of actual payment after adjustment of any dues that may be due from the Lessee in terms of this Agreement.
8. MISCELLANEOUS 8.2 This Deed constitutes the entire agreement between the parties and save as otherwise expressly provided no modification, amendment or waiver of any of the provisions of this Deed shall be effective unless made in writing specifically referring to this Deed and duly signed by the parties hereto.
8.3 Any notice required to be served upon the Lessee or the Lessor, shall be sufficiently served and given if delivered by registered A.D. to their respective addresses first given above. All notices, authorizations and requests in connection with this Lease Deed shall be deemed given (i) on the day they are deposited in the mail, postage prepaid, certified or registered, return receipt requested (ii) 24 hours after facsimile transmission with confirmation of receipt to; or (iii) on the day they are sent by air express, charges prepaid, return receipt requested; and addressed at their respective addresses stated above.
23. After having gone through the relevant provisions of lease agreement, which is an undisputed document, the question which falls for consideration before this court is whether the terms of agreement leave any scope for giving such interpretation to Clauses (3.3) & (7.1) as contended by defendant.
24. At the outset, I may mention that running of barbor CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 16 of 26saloon & Spa is not an illegal activity as contemplated under Clause (3.2) of the lease deed Ex. PW1/3. User of any premises for running such activity may be illegal on account of bar of some Bye Laws, rules or regulations of MCD prohibiting such user, but that will not make such vocation illegal. Illegal activities in my view are only those activities which are punishable by law like gambling, immoral trafficking etc. Hence, defendant's contention that by running a business of barber and spa, plaintif indulged into illegal activities within the meaning of Clause (3.2) is not legally tenable.
25. As noted above, defendant's second contention is that the plaintif had started running business of barber saloon and spa without obtaining the requisite license and therefore, plaintif's application for license was rejected for which he cannot take advantage of Clause (3.3.) of lease agreement. The second limb of contention is that plaintif had applied for license for barber saloon, whereas as per agreement only spa business was to be carried out from the suit premises and therefore, license was declined. It is further submitted that spa activities from basement of any premises is well permissible which is also evident from entry 16, 23 & 24 of the gazette notification filed alongwith Ex. PW3/B. It is further argued that since the plaintif's application was rejected on account of plaintif's own fault in applying for Barber Saloon which is an impermissible activity, therefore, CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 17 of 26plaintif is not entitled to refund of any security or advance rent and rather plaintif is liable to compensate the defendant for damages sufered by him (defendant) on account of termination of tenancy before expiry of lock in period of eighteen months.
26. Before deciding the tenability of aforementioned arguments urged on behalf of defendant, it is necessary to first know as to what are the legally recognized principles for construing the terms of any agreement.
27. A contract is legally binding agreement. The element that converts any agreement into a contract is the intention of the parties to create a legal relation. If the parties to the agreement intended that it should be governed by, and subject to, the law the contract, each party shall adopt a legal obligation, and each may seek a remedy in event of breach. It is trite law that terms of contract has to be strictly read and natural meaning to be given to it. No outside aid should be sought unless the meaning is ambiguous.
28. Upon interpretation of terms of contract, Hon'ble Apex Court in Rajasthan State I.D.I Corporation vs. Diamond & Gem Development Corporation Ltd. & Ors. in civil appeal no. 8222-8223/03 decided on 12.02.2013, laid down as under:-
CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.Page 18 of 26
"A party cannot claim anything more than what is covered by the terms of contract, for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract. Thus, contract being creature of agreement between two or more parties, has to be interpreted giving literal meaning unless there is some ambiguity therein. The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the court to make a new contract, however is reasonable, if the parties have not made it themselves. It is to be interpreted in such a way that its terms may not be varied. The contract has to be interpreted without giving any outside aid. The terms of contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely."
29. After analyzing the terms of lease deed Ex. PW1/3, in the light of aforementioned principles of interpretation laid down by the Hon'ble Apex Court, I am of the view that language of Clause (3.3) is plain, clear and unambiguous and does not leave any scope for giving any implied meaning as urged on behalf of defendant. The defendant's contention that said Clause (3.3) if read in conjunction with the Clause (3.1), would mean and include only those circumstances where lessee is prevented by MCD/DDA or any other authority from using the premises for permissible purposes does not seem convincing for the reason that said interpretation is totally in violation of plain and literal meaning of the words used in said clause. The use of the words "for any reason whatsoever, whether attributable to lessee or lessor" itself is evident of parties' intention not to give any restrictive meaning to the term. The only meaning that can be deduced from said CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 19 of 26Clause is that liberty was given to lessee to terminate the tenancy forthwith in case he is prevented from using the premises by MCD, DDA or any other authority for any reason whatsoever irrespective of the fact whether the reason of such restriction or sanction by said authorities is attributable to the lessor or to the lessee.
30. As per Clause (3.1) of lease deed Ex. PW1/3, the demised premises was required to be used only for permissible purposes and for that reason only plaintif had applied for obtaining license from MCD for his business of Saloon and SPA, which he started carrying out from said premises. There is absolutely no term in the contract restricting or prohibiting the plaintif from putting the premises to any other use than for the business of SPA. The only restriction put upon the plaintif is that the premises shall be used for permissible purposes only.
31. It is strenuously contended on behalf of defendant that there is no bar for running business of SPA from the basement of any premises in view of entry 16, 23 & 24 of the Gazette notification filed alongwith letter Ex. PW3/B. However, said entries of gazette notification are showing only the modifications/amendments brought in Clause-b (ii) of Sub Para 15.7.1, Clause (iii) of Sub Para 15.7.3 and Clause (iv) of Sub Para 15.7.3 respectively. Careful perusal of modified Master Plan of Delhi, 2021 (MPD, 2021) shows that Clause 15.3.2 provides for CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 20 of 26extent of mixed use permissible in various categories of Colonies. Clause 15.3.2. (2) relates to Colonies falling in categories 'C' & 'D'. Lajpat Nagar-II, where the suit property is situated falls in category 'C' of SDMC list of colonies. Clause 15.7 relates to other activities and perusal of Clause 15.7.1 to 15.7.3 nowhere shows that running of wellness centre including day SPA is permissible from the basement of such premises. As per Clause 15.8 (iv) professional activities from the basement is permissible in the plotted development, subject to provisions of Building By Laws, structure safety norms and fire safety clearance and in case such use lead to exceeding the permissible FAR on the plot, such FAR in excess shall be used subject to payment of appropriate charges prescribed with the approval of government.
32. PW3 also deposed that as per entry 26 & 28, which relates to Clause 15.8 (iv) and 15.7.3 (vii) of MPD, 2021, only specified categories of professional activities are allowed. Testimony of PW3 has remained unrebutted and unchallenged as he was never put to any cross examination by the defendant. Even in rebuttal evidence, defendant failed to bring anything on record to show that Spa activity from basement of suit premises was permissible as per Rule, Regulations and Bye Laws of MCD. Even DW1 in his cross examination deposed that he did not know whether running of Spa business on the basement of any premises was permissible or not. He also feigned ignorance as to CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 21 of 26whether any requisite license has been obtained for running the Spa business under the name of Health Club, by the present occupant/tenant of the suit premises.
33. From the evidence brought on record by the plaintif, it stands proved that no business activity including the business of Spa, was permissible from the basement of suit premises. Considering said position on record, the reason for rejection of plaintif's application was not that he had applied for impermissible purpose of Barber Saloon alongwith permissible activity of Spa, but it was because of the fact that as per the provisions of MPD, 2021, no such business activity either of Barber Saloon or of Spa was permissible from the basement of suit premises.
34. In the backdrop of above discussion, I feel no hesitation in holding that after the rejection of license for running the business of Saloon & Spa, the plaintif was within his right to terminate the tenancy in view of Clause (3.3) r/w Clause (6.1) and the bar of Clause (7.1) of lease deed is also not attracted because the plaintif's case is covered under the exception clause wherein the lessee may terminate the tenancy even during the lock in period of eighteen months, if it is not possible for the plaintif/lessee to use the premises due to MCD/DDA hindrance or some other government agencies etc. Undisputably, plaintif after CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 22 of 26rejection of license was unable to carry out his business of Saloon & Spa from the suit premises and therefore, his case is duly covered under the above exception created in Clause (7.1) of the lease deed. Plaintif has placed on record the office copy of legal notice dated 01.09.2012 Ex. PW1/5 alongwith duly signed AD/acknowledgment and dispatch receipt of registered post for proving the due service of said legal notice upon the defendant. Even otherwise, receipt of said legal notice by defendant on 05.09.2012 is not in dispute as the same was replied by defendant vide their reply dated 05.09.2012 Ex. PW1/6. Considering said evidence on record, plaintif has duly established that tenancy was terminated in accordance with the terms of Clause (3.3) r/w Clause (6.1) & (8.3) of the lease deed Ex. PW1/3. The issue is accordingly, decided in favour of plaintif and against the defendant.
ISSUE NO.2:- Whether plaintiff is entitled for a decree for recovery of a sum of Rs.11 lacs against the defendant ? OPP
35. The onus of proving this issue was again on the plaintif. While deciding issue no.1, it has already been decided in favour of plaintif that the tenancy has been terminated in accordance with the terms of lease deed Ex. PW1/3, vide legal notice dated 01.09.2012 which was duly served upon the defendant on 05.09.2012. Hence, in accordance with the terms of Clause (3.3) r/w Clause (8.3), plaintif was absolved from his CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 23 of 26liability to pay any further rental w.e.f. 05.09.2012 and plaintif was further entitled for refund of security deposit of Rs.8,25,000/- subject to clearance of all the dues and entitlements by the lessee/plaintif as per the terms of Clause (2.3) of lease deed Ex. PW1/3. In the written statement, except the alleged liability of dues for remaining lock in period of eleven months and 15 days, defendant has not raised any other claim of dues outstanding against the plaintif.
36. As per record, although the possession was handed over by the plaintif to the defendant only on 20.12.2012 pursuant to the order dated 19.12.2012 passed in this case but, having regard to the discussion in the preceding paragraph, plaintif's liability to pay rental ceased to run after he terminated the tenancy in accordance with the terms of lease agreement, vide aforementioned legal notice dated 01.09.2012. Admittedly, an advance rent of one month was paid by the plaintif to the defendant in accordance with Clause (2.2) at the time of signing of lease deed Ex. PW1/3 and since the tenancy stood terminated w.e.f. 01.09.2012, and the rental for 15 days of month of June, for entire month of July & August stands already paid, defendant is also liable to return the said advance rental of Rs.2,75,000/- to the plaintif.
37. In view of aforementioned discussion, I am of the view CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 24 of 26that plaintif has successfully proved his entitlement for recovery of sum of Rs.11 lacs i.e. Rs.8,25,000/- towards refund of interest free security and Rs.2,75,000/- towards refund of one month advance rental. The issue is accordingly, decided in favour of plaintif and against the defendant.
ISSUE NO.3:- Whether plaintiff is entitled to interest on the aforesaid amount, if so, at what rate and for which period ? OPP
38. In the plaint, plaintif has also prayed for pre-suit interest @ 24% per annum on the suit amount for the period w.e.f. 01.09.2012 till the filing of the suit i.e. till 12.11.2012. In this regard, the attention of the court was drawn on Clause (7.5) of the lease deed Ex. PW1/3, which provides that upon the termination of tenancy in accordance with lease deed, if the lessor defaults in refunding the security deposit and all other refundable amount, the lessee shall be entitled to claim interest @ 18% per annum from the date such amounts become due till the date of its actual payment.
39. In view of my findings on issue no.1 & 2, plaintif is entitled for the pre-suit interest @ 18% per annum on the suit amount of Rs.11 lacs for period w.e.f 06.09.2012 till 22.11.2012 i.e. the date of institution of present suit.
CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 25 of 2640. Though, the plaintif has claimed pendete-lite and future interest at the same rate of 24% per annum but, keeping into account the facts and circumstances of the present case, I am of the view that ends of justice would be best met, if plaintif is awarded pendente-lite and future interest @ 9% per annum on the decreetal amount. Ordered accordingly.
Issue stands accordingly, decided in favour of plaintif and against the defendant.
ISSUE NO. 4:- Whether defendant is entitled to a decree in the sum of Rs.20 lacs against the plaintiff ? OPD
41. The onus of proving said issue was upon the defendant. The recovery of Rs.20 lacs has been sought by the defendant as damages equivalent to the rental of remaining lock in period of eleven and half months which came out to be Rs.31,62,500/-, out of which the defendant restricted his claim only for sum of Rs.20 lacs for bringing the counter claim within the pecuniary jurisdiction of this court.
42. However, in view of my findings on issue no.1 & 2, defendant's counter claim is liable to be dismissed as it is already held that plaintif was within his right to terminate the tenancy even before expiry of lock in period, in accordance with Clause (3.3) r/w Clause (6.1) of lease deed Ex. PW1/3. Accordingly, there is no breach of terms of lease agreement on the part of plaintif CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.
Page 26 of 26so as to entitle the defendant for claiming any damages on that count.
The issue is accordingly decided against the defendant and in favour of plaintif.
ISSUE NO. 5:- Whether the defendant is entitled to interest upon the aforesaid amount, if so, at what rate and for which period ? OPD
43. In view of my findings on issue no.4, this issue is also decided against the defendant and in favour of plaintif.
RELIEF:-
44. In view of my findings on the aforementioned issues, the suit of the plaintif is decreed for a sum of Rs.11,41,770/- (Rs.11,00,000/- towards principal + Rs.41,770/- towards pre suit interest) alongwith pendente-lite and future interest @ 9% per annum on the decreetal amount. Counter claim of defendant is dismissed.
45. Decree sheet be drawn accordingly. File be consigned to record room.
(Sunena Sharma) Addl. Distt Judge-03/South-East Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 28.11.2016.
CS No. 214/16 Body Spa International Pvt. Ltd. vs. B.S.M. Developers Pvt. Ltd.