Delhi District Court
Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. on 24 March, 2012
Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd.
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
SOUTH DISTRICT, ROOM NO. 309, SAKET COURTS, NEW DELHI
In the matter of
CS No. 515/2010
Track Innovations (India) Pvt. Ltd.
Having its Registered Office at - L76 (IInd Floor),
Lajpat Nagar, New Delhi110024.
Through its Director Shri Manish Varma.
...... Plaintiff
Versus
The Jammu & Kashmir Bank Ltd.,
09, LSC, Okhla Industial Area,
PhaseII, New Delhi110020.
Also at :
Plot No. 132 & 134,
Sector 44, Gurgaon, Haryana.
...... Defendant
Plaint Presented on : 19.01.2010
Date of Institution : 12.11.2010
Decision Reserved on : 25.02.2012
Date of Decision : 24.03.2012
CS No. 515/10 Page 1 of 12
Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd.
JUDGMENT
(on Suit for Recovery of Rs. 12,97,758/ under order XXXVII CPC)
1. Plaintiff is a company incorporated under the Companies Act and Sh. Manish Verma, Director has been authorized by Board Resolution to sign and verify the pleading and institute vis a vis prosecute the suit. The plaintiff is owner of entire basement and the ground floor at property No. 9, LSC, Okhla Industrial Area Phase II, New Delhi - 20, measuring 2000 sq. feet each at the ground floor and the basement level (in brief the premises).
2. The defendant is a bank and in the month of January 2007 it proposed to take the premises on rent and after correspondent between the parties the Estate Department of defendant Bank by letter dated 17.05.2007 manifested its intention of taking the premises on rent for a period of 9 years subject to an increment of rent by 15% every three years and bank also offered to take possession within period of 1 month from the date of confirmation. The monthly rent was initially proposed as Rs. 2,25,000/ p.m and finally it was agreed @ Rs. 2,10,000/.
3.1 The plaintiff handed over the possession of premises on 16.08.2007. The lease deed was finally executed and registered on CS No. 515/10 Page 2 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. 01.02.2008 for a period of 9 years starting from handing over of possession on 16.08.2007 at the rent of Rs. 2,10,000/ per month.
3.2 The defendant was liable to pay rent starting from the date of taking over the possession from 16.08.2007 and plaintiff wrote many letters to the defendant to pay arrears of rent from 16.08.2007 to 31.01.2008 but despite many reminders and letters the defendant failed to pay the amount whereas the defendant bank in its letter dated 11.11.2008 accepted its liability and offered to pay rent only for 3 months and defendant bank has denied illegally payment of arrears of entire period 16.08.2007 to 31.01.2008. Finally notice dated 22.12.2008 was issued, besides rent bill to the plaintiff for amount of Rs. 19,97,758/ comprising monthly rent as well as other levies payable, but no result. That is why the suit for recovery of Rs. 12,97,758/ under summary procedure of order XXXVII CPC. 4.1 The defendant, after appearance and then pursuant to summons for judgment, applied by application dated 19.03.2011 under order XXXVII rule 3 (5) CPC coupled with detailed affidavit of its Executive Manager Sh. Abdul Samad Kumar, seeking leave to defend the suit CS No. 515/10 Page 3 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. unconditionally. The extend of premises, execution of lease deed dated 01.02.2008 or the monthly rent agreed is not disputed, but the application/affidavit explains that there were various correspondence prior to finalizing the lease agreement dated 01.02.2008. The defendant request that even prior to execution of lease deed dated 01.02.2008, the plaintiff created a lot of harassment as well as incooperation and the present suit is also one of its series. The lease agreement was preceded by correspondence that it is to be "under the standard terms and conditions" of lease to the bank.
4.2 As per lease agreement the lease was to be effected from the date vacant possession of the premises complete in all respects as per the requirements of the defendant is handed over to the defendant. The requirement of the defendant were not completed as on the date of execution of lease deed. It is the responsibility of the landlord to carry out all major structural changes as per the requirement of bank including the construction of strong room. The bank could not operate without strong room and specially in the suit premises where provisions of vaults/lockers was the prime consideration. The Reserve Bank of India have issued strict CS No. 515/10 Page 4 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. guidelines for construction of strong rooms, placement of vaults, placement of servers and the bank is also liable to fully equip its branch with security gadgets and fire fighting equipments. It is a standard practice of allowing at least 6 months rent free period for fitments and fabrication of bank, this fact was in the knowledge of plaintiff. The defendant for the first time occupied the suit premises complete in all respect as per the bank's requirement only on 25.07.2008. (further the defendant immediately handed over possession of other property of first floor to its actual owners and only thereafter the premises was occupied). Thus in terms of clause 1 of lease deed, the defendant did not use or occupy the premises till 25.07.2008 and plaintiff cannot be held liable nor it is liable to pay any amount in the form of rent for the period 16.08.2008 to 31.01.2008. In addition the suit does not satisfy the requirement of order XXXVII CPC as suit is not based upon Bill of exchange, hundi, promissory note, written contract, or guarantee as required under law.
4.3 (The plaintiff had replied the application followed by defendant's rejoinder; plaintiff's reply reiterates its case referred in paragraph 1 to 3 and defendant reiterates its case referred in paragraph 4.1 and 4.2 above). During the course of arguments, Ld. Counsel for defendant refers the CS No. 515/10 Page 5 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. correspondence exchanged and the lease agreement that handing over of possession means when the premises will be available for the defendant to use for its business purposes, or period prior to 25.07.2008 cannot be considered that the defendant bank was in possession as the premises was not available for use for the purposes premises was taken on rent. Therefore, the premises was treated to be handed over on 25.07.2008 and the issues raised are triable issues, which require investigation and trial and to reach that stage, the applicant defendant deserves opportunity to defend the suit. Further it has also legal consequences that period of 9 year of lease is to be computed, from the date which is determinable for the purposes of handing over the possession, it is also a triable issue deserving the defendant opportunity to contest the suit. The defendant relies upon Bishwanath Prasad Singh vs. Rajender Prasad (2006) 4 SCC 432 - on the concept of the best evidence rule vis a vis section 91 of Indian Evidence Act that it is in reality declaring doctrine of substantive law that in case of a written contract that all proceedings and contemporaneous oral expressions of the things are merged in the writing or displaced by it. The defendant deserves opportunity to prove the triable issues being raised in leave to defend application.
CS No. 515/10 Page 6 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. 5.1 The plaintiff denies the defendant's case put up in leave to defend application and in the rejoinder; the plaintiff denies the allegations of application referred in paragraph 4 above. The plaintiff reiterates its case referred in paragraph 1, 2 and 3 above. Neither there is any triable issue nor defence much less bonafide defence to permit the defendant to contest the case. There is written lease agreement and it incorporates all covenants, therefore, suit satisfied requirement of summary trial. The plaintiff never agreed or took responsibility to carry out structural changes nor it is within the domain of plaintiff to carry the structural changes/fittings which are to be got done by the defendant under the guidance, rules and norms of Reserve Bank of India. The defendant took the physical possession on 16.08.2007, therefore, rent is payable from 16.08.2007 and neither the plaintiff agreed nor there was any clause in the agreement nor the plaintiff is aware that there is 6 month rent period for fitments and fabrication of the bank. Further the defendant himself agreed to pay the amount by letter dated 11.11.2008 but later it failed to comply its own assurances; in fact the defendant is trying to harass the plaintiff and plaintiff never did anything prejudice or harmful to the defendant. CS No. 515/10 Page 7 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. 5.2 During the course of arguments, Ld. Counsel for plaintiff traveled through the correspondence exchanged to demonstrate admissions on the part of the defendant that possession was taken on 16.08.2007 and defendant also wrote letter to pay the amount but of 3 months out of the period 16.08.2007 to 31.01.2008. It is also submitted that period of 9 year is to be construed accordingly. It is concluded that for want of any triable issue or defence, the plaintiff is entitled for decree. 6.1 (Findings): The rival contentions are assessed in the light of material on record, particularly documentary record, and the statutory provisions of law. There is also an occasion to go through M/s. Mechalec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation AIR 1977 SC 577, wherein it was held that if the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and defendant is not entitled to leave to defend and if the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, if the Court may protect the plaintiff by allowing the defence to proceed if the amount claimed is paid into Court or CS No. 515/10 Page 8 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. otherwise secured. To appreciate their contentions it requires to reproduce some of the extract from the record, which reads as follows: Registered Lease Deed dated 01.02.2008 Paragraph 1 "that the Lessors do hereby lease the premises described in the schedule hereunder and demarcated in the annexed plan "A" to the Bank initially for a period of 9 years (with effect from a date the vacant position of the premises, complete in all respects as per the requirements of the Bank, is handed over to the Bank), extendable by a further period of nine years by mutual consent of the lessor and lessee." Letter dated 16.08.2007 POSSESSION LETTER "I, Rajender Singh Rawat on behalf of M/s. Track Innovations (I) Pvt. Ltd. D6465 (Ground Floor), Amar Colony, Lajpat NagarIV, New Delhi110024 have handed over peaceful physical possession today on 16th day of August, 2007 of Basement and Ground floor property No. 9, LSC, Okhla Industrial Area, PhaseII, New Delhi110020 to Jammu & Kashmir Bank Ltd., Branch Office, First Floor, 9 LCS, Okhla Industrial Area, Phase II, New Delhi110020.
POSSESSION GIVEN BY ; POSSESSION TAKEN OVER BY
For Track Innovations (I) Pvt. Ltd. For Jammu & Kashmir Bank Ltd.
(signed) (seal and signed)
AUTHORIZED SIGNATORY BRANCH MANAGER"
The plaintiff wrote letters and reminders to the defendant for release of payment of Rs. 12,97,758/ for the period 16.08.2007 to 31.01.2008, lastly the defendant respondent to the plaintiff by letter dated CS No. 515/10 Page 9 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. 11.011.2008 with regard to payment of rent on bank's premises, its operating part reads as follows: "With reference to your letter no. TI/Jkb/0809/08 Dt. 10.11.2008 as already discussed with your representative in our Zonal office Delhi regarding the payment of rent on your building at 9, local Shopping Complex, Okhla Phase II, as agreed the bank is ready to pay you previous three months rent and for this you were requested a number of times over phone to sent your authorized person to our office for formalize it. But till date nobody has come for it".
6.2 By reading the correspondence and the contents of lease deed dated 01.02.2008, the initial period of tenancy is for 9 years to be effective from the date the vacant possession of the premises is handed over to the bank. The plaintiff delivered the possession to the defendant on 16.08.2007, when letter of possession was also executed between the parties. Therefore for the following reasons, defendant's application for leave to defend the suit is dismissed: i. Written/registered lease deed amounts to contract, therefore, it falls withing the purview of the summary trial under order XXXVII CPC. ii. The liability to pay rent is from the date of taking of possession but plaintiff is construing that possession came to it on 25.07.2008 when the bank became functional. The banking operation or when the defendant completed its infrastructure to make the bank operational on 25.07.2008 cannot be construed date of possession. The defendant had taken the possession on 16.08.2007.
CS No. 515/10 Page 10 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd. iii. There is no covenant in the lease agreement of free rent period nor there is any correspondence that there will be free rent period of 6 months after taking the possession. For want of any covenant with regard to free rent period in the registered lease deed, the defendant cannot say that it was in the knowledge of plaintiff that usually rent period of 6 months prevails for doing necessary infrastructure nor it can be treated a defence of the defendant.
iv. It is also not a sufficient defence to say that it was the responsibility of the plaintiff to make necessary structural changes to compatible with the banking requirements, otherwise defendant has reserved its right in clause No. 16 of the lease agreement to do necessary structural additions or alternations for meeting the requirement and defendant/applicant also states that the same is to be done as per the strict requirements laid down by Reserve Bank of India. v. When there are written terms and conditions, which were arrived after due deliberations, the parties cannot travel beyond it unless there is some inconsistency or omissions and to give explanation thereon; there is no such factor existing in the lease agreement, so far the present suit is concerned, and vi. The defendant in its letter dated 11.11.2008 in response to plaintiff's letter dated 10.11.2008 had agreed to pay rent of previous 3 months of period 16.08.2007 to 31.01.2008.
Accordingly, defendant's application stand disposed off. The plaintiff is held entitled for decree of suit amount in his favour and against the defendant.
CS No. 515/10 Page 11 of 12 Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd.
7. The plaintiff has claimed interest @ 18% p.a. whereas there is no agreed rate of interest nor the lease agreement talks of any rate of interest, therefore, considering the purpose of letting out of the premises for commercial bank, the interest @ 10% p.a. will meet both ends of justice. The plaintiff is held entitled for interest @ 10% p.a from the date of suit till realization of amount.
Accordingly, plaintiff's suit is decreed for a sum of Rs. 12,97,758/ coupled with cost of suit and interest @ 10% p.a from the date of suit till realization in favour of plaintiff and against the defendant.
Decree sheet be drawn accordingly.
File is consigned to record room.
Announced in the open Court (INDER JEET SINGH)
on 4 Chaitra, Saka, 1934 Additional District Judge03,
th
South District, Saket Courts,
S New Delhi/ 24.03.2012.
CS No. 515/10 Page 12 of 12
Track Innovations (India) Pvt. Ltd. vs The Jammu & Kashmir Bank Ltd.
CS No. 515/10
24.03.2012
Appearance: Sh. Manish Verma for plaintiff.
Proxy counsel for defendant.
Vide separate judgment announced today, the plaintiff's suit is decreed for a sum of Rs. 12,97,758/ coupled with cost of suit and interest @ 10% p.a from the date of suit till realization in favour of plaintiff and against the defendant.
Decree sheet be drawn accordingly.
File is consigned to record room.
(INDER JEET SINGH)
Addl. District Judge03, South District,
S Saket/24.03.2012
CS No. 515/10 Page 13 of 12