Delhi District Court
Marudhar Cultivators Pvt Ltd Andanr vs Dalmia (Bros.) Pvt Ltd on 15 April, 2025
IN THE COURT OF MS. PRABH DEEP KAUR: DJ-05, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
CS DJ NO. 256/2021
CNR NO. DLSE01-002389-2021
In the matter of :-
1. M/s Marudhar Cultivators Pvt. Ltd.
having its registered office at
138, Sunder Nagar, New Delhi -110003
2. M/s Marudhar Theaters Pvt. Ltd.
having its registered office at
138, Sunder Nagar, New Delhi-110003 .....Plaintiffs
Vs.
M/s Dalmia (Bros.) Pvt. Ltd.
Ground Floor,
YMCA Cultural Centre-Cum Library Building
1, Jaisingh Road,
New Delhi -110001 ......Defendant
Date of Institution : 09.03.2021
Arguments heard on : 01.04.2025
Date of Judgment : 15.04.2025
SUIT FOR POSSESSION, PERMANENT AND MANDATORY
INJUNCTION AND FOR RECOVERY OF ARREARS OF LICENSE
FEES AND MESNE PROFIT AGAINST THE DEFENDANT
JUDGMENT
1. Vide this Judgment, the suit for possession, permanent and mandatory injunction and for recovery of arrears of license fees and CS DJ 256/21 Page No. 1/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 mesne filed against the defendant has been disposed off.
2. Brief facts of the case are that the Plaintiff No.1 and Plaintiff No.2 are Companies registered under the Companies Act, 1956 and are the lawful joint owners of the property bearing No. 138, Sunder Nagar, New Delhi- 110003 comprising of Ground Floor, First Floor and Second Floor. Defendant is a Company registered under the Companies Act, 1956. Admittedly, a registered license agreement was executed between the Plaintiffs and the Defendant on 30.04.2019 for use and occupation as residence for Ms. Navrattan Choudhary who is working as advisor to defendant company. Admittedly the license was granted in respect of First Floor consisting of 4 bedrooms with attached bathrooms and lobby in the living area and the Second Floor consisting of two bedrooms with attached bathrooms with 6 air conditioners in the six bedrooms and three air conditioners in the living room and six geysers in the six bathrooms along with 2 servant quarters one in the terrace of the second floor with attached bathroom and one servant quarter on the garage block, two open car parking space in the driveway (hereinafter called as suit property). Admittedly, defendant has failed to pay license fee since May-2020.
As per plaintiffs, repeated requests were sent through e-mails from 9-03-2020 till 05-09-2020 to pay the arrears of rent, defendant also defaulted in making payment of the electricity charges from September-2020 till February-2021 which amounted to Rs.39,220/- and payment of the water charges and fuel charges used in the DG Set to the extent of 75% of the total due from November-2019 till February-2021 amounting to Rs. 1,43,572 / - which was to be borne by the Defendant.
CS DJ 256/21 Page No. 2/27MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 Due to default in payment of license fee, the Plaintiff served legal notice 24-09-2020 upon the Defendant to pay the arrears of License fee, electricity charges, water and Fuel charges used in the DG Set. The defendant admitted receiving of legal notice and also admitted that a letter dated 01-10-2020 was Ex. PW-1/21(also Ex. DW-1/2(colly) was written to the plaintiff, explaining that due to COVID-19 pandemic, license fee was not paid and request for waiver of license fee was made. As per plaintiffs, plaintiffs again sent a notice dated 07-10-2020 upon the defendant to comply with previous legal notice dated 24-09-2020. Thereafter, vide legal notice dated 22-12-2020, plaintiff terminated the lease and asked the defendant to vacate the Suit Property and pay the arrears. Admittedly, thereafter, defendant sent an e-mail dated 24-12- 2020 Ex. PW-1/24 to the plaintiffs requesting to use the Suit property till end of January-2021 with assurance to make part payment. As per plaintiffs, defendant failed to pay any amount, hence the suit for following reliefs:-
(a) Decree for possession qua the suit property:
(b) Decree for recovery of arrears of license fee aggregating to Rs.50,00,000/- for the period May-2020 to February-2021 alongwith TDS certificate and interest @15% per annum on arrears of license fee aggregating to Rs.50,00,000/- i.e Rs.3,59,375/ - which is calculated till 28th February 2021 and further pay interest pendent lite till the time actual physical and vacant possession is handed over to the plaintiffs.
(c) Decree for recovery of the electricity dues, water charges and Gen-
Set fuel charges aggregating to Rs.39,220/- and Rs. 1,43,572/ -
CS DJ 256/21 Page No. 3/27MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 respectively.
(d) Decree of mesne profits @ Rs. 25,000/- per day till the possession of the suit property is actually handed over to the Plaintiff.
(e) Decree for permanent injunction restraining the Defendant from transferring and /or alienating and / or creating third party right in the suit property.
(f) Decree of mandatory injunction directing the Defendant to restore the suit property in the same condition as was prevailing on the date of grant of the lease and in the alternative to make an enquiry for the expenditure required to be incurred in restoring the premises in the same condition as it was at the date of grant of the license.
3. Admittedly, prior to filing of WS by the defendant, 18.01.2022 Ld. Counsel for plaintiffs submitted that they had received the possession of the suit property and Ld. Predecessor of the Court recorded as follows:
"In view of the same, the present suit qua relief of possession stands satisfied".
Thus, the issues only of arrears of license fees and damages /mesne profits remained surviving.
4. The defence of defendant:
4.1 Possession already handed over: The defendant has already vacated the premises due stoppage of electricity and water connection by plaintiffs and the keys have also been handed over to the plaintiffs long back and the present suit is thus infructuous.
4.2 Harassment to the occupant: In complete violation of clause no. 1.7 of the agreement, plaintiff through its concerned representatives, CS DJ 256/21 Page No. 4/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 since day one had started to harass the occupant of the premises in one way or the other in as much as the representatives of the plaintiff were bent upon to enter the demised premises again and again on the pretext of inspecting the demised premises (under garb of clause 2.2 of the agreement) to ascertain the manner of occupation of the property by the said Advisor of the defendant company. Thereby, creating hindrances in peaceful occupation of the property by the advisor of the defendant company.
4.3 Failure to repair defect like seepage, cracks etc.: Further, in terms of clause 1.8 of the agreement, the Licensor was required to repair the structural defects in shape of seepage, cracks and etc, in the demised property, which were, however, upon mutual understandings were brought to the notice of the Licensor soon after shifting in the demised property. However, the Licensor has paid no heed for curing and repairing all such defects in the property due to which the occupant/Advisor of the defendant company had to face various hurdles and problems in the enjoyment of the demised property. 4.4 Lift practically not used by occupant: Further, in terms of clause 2.4 of the said agreement, the Licensor was required to always keep the lift in perfect working conditions and shall also carry out its regular maintenance/repair. However, soon after when the said Advisor of the defendant company had shifted in the demised premises, the representatives of the plaintiffs rarely allows the said advisor of the defendant company to use the lift in as much as the staff of the plaintiff company keeps the lift busy in their personal use and activities and when CS DJ 256/21 Page No. 5/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 it comes for regular maintenance, the representatives of the plaintiffs approached the said advisor of the defendant company asking for the share in expenses incurred towards the maintenance of the lift, which was nowhere mentioned in the said license agreement.
4.5 Guidelines of Covid-19 not followed: During pandemic Covid-19 since February 2020, despite the Government agencies issuing directions to the citizens to keep the surroundings neat and clean, the plaintiffs had hardly cared about the Covid-19 precautions in as much as the lift, if made available for use by the said advisor of the defendant, was always under repair and entire area was unclean and dirty.
4.6 Plea of force majeure: Defendant submits that the corona pandemic was unexpected and because of its seriousness and the fact that it was spreading like anything, the Central Government announced lockdown and the whole country was under lockdown and everything was standstill. Hence the Government had recognized the lockdown as force majeure and also issued notification to that effect and declared the lockdown as force majeure. The State Government had also issued notification wherein it was directed to all owners not to harass the occupants for rent and also to provide all essential amenities.
Defendant was though aware of the contractual obligations of both the parties but the performance of contract is affected by post contract events, than the situation can be resolved by either invoking the "doctrine of frustration or the principle of force majeure". Recently the Hon'ble Supreme Court of India has given jurisprudential aspect of this in South East Asia Marine Engg & Constructions Ltd (SEAMEC LTD) Vs Oil CS DJ 256/21 Page No. 6/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 India Ltd reported 2020 (5) SCC 164. It was held therein as follows :
"19 ....Under Indian Contract law ,the consequences of a force majeure event are provided for under section 56 of the Contract Act, which states that on the occurrence of an event which renders the performance impossible, the contract becomes void thereafter. Hence the present case is covered by above principle and contract becomes void.
4.7 Essential amenities disconnected by plaintiffs during Corona pandemic: The plaintiffs had disrupted electricity supply time to time and disconnected water supply to defendants in three bath rooms starting from the very beginning of Corona pandemic lockdown i.e from March/April 2020 and generator supply was also cut, such being the case there is no question of payment of electricity bill and generator charges by defendant at all. On what capacity the plaintiff is claiming generator charges? It has no authority at all. The plaintiff had disconnected all basic essential amenities and thereby made the occupants to shift to some other place and indirectly dispossessed the defendant from the house and plaintiff has no right to claim the rent from the defendant as held by Hon'ble Supreme Court in Raichurmatham Prabhakar & others vs. Rawatmal Dugar. This made the occupant of the defendant to shift to some other place for mental peace in the month of June, 2020. Defendant submits that it was impossible to stay without basic essential amenities, that too during peak pandemic lockdown the plaintiff acted inhumanly with malafide intentions against guide lines of State Government and Central Government. The occupant cooperated with the plaintiffs but the plaintiffs have forced the occupant to vacate the house and took the possession of house without any valid authority. Thereafter the plaintiff CS DJ 256/21 Page No. 7/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 sent a mail with fabricated story that the house was left open on 14.10.21 which is absolutely false.
5. Rebuttal by plaintiff by way of replication:
The plaintiff has filed replication to the written statement of defendant thereby reaffirming and reiterating the contents of plaint and denying the contents of written statement.
6. From the pleadings of the parties, following issues were framed vide order dated 22.11.2022.
I. Whether plaintiff is entitled for arrear of license fee alongwith interest, as prayed for? OPP II. Whether the plaintiff is entitled for damages/mesne profits as prayed for, if so at what rate and for what period?OPP III. Relief.
7. Thereafter matter was listed for plaintiff's evidence.
In evidence, plaintiffs examined Sh. Jorawar Singh, Accountant of the plaintiffs as PW-1. He has reiterated the facts of plaint in his affidavit Ex.PW1/1. He has relied upon the documents i.e. Board Resolutions dated 25.01.21 is Ex PW-1/1 (Colly); License Agreement dated 30.04.19 is Ex PW-1/2; Email dated 09.03.2020 is Ex PW -1/3; Email dated 12.03.2020 is Ex PW-1/4; Email dated 30.03.2020 is Ex PW -1/5; Email dated 31.03.2020 is Ex PW-1/6; Email dated 10.05.2020 is Ex PW-1/7; Email dated 29.05.2020 is Ex PW-1/8; Email dated 29.05.2020 is Ex PW
-1/9; Email dated 10.06.2020 is Ex PW -1/10; Email dated 12.06.2020 is Ex PW 1/11; Email dated 26.06.2020 is Ex PW-1/12; Email dated 6.07.2020 is Ex PW -1/13; Email dated 13.07.2020 is Ex PW -1/14;
CS DJ 256/21 Page No. 8/27MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 Email dated 25.07.2020 is Ex PW -1/15; Email dated 12.08.2020 is Ex PW -1/16; Email dated 13.08.2020 is Ex PW-1/17; Email dated 27.08.2020 is Ex PW-1/18; Email dated 05.09.2020 is Ex PW-1/19; Legal Notice 24.09.2020 is Ex PW -1/20; Postal receipt 24.09.2020 is Ex PW-1/20A; Letter dated 01.10.2020 is Ex PW-1/21; Letter dated 07.10.2020 is Ex PW -1/22; Postal receipt 08.10.2020 is Ex PW-1/22A (Colly); Letter dated 22.12.2020 is Ex PW -1/23; Postal receipt 23.12.2020 is Ex PW-1/23 A (Colly); Email dated 24.12.2020 is Ex PW-1/24; Email dated 24.12.2020 is Ex PW -1/25; Email dated 08.09.2021 is Ex. PW-1/26 and Email dated 14.10.2021 is Ex. PW-1/27 and Electricity Bill dated 28.10.2021 is Ex. PW-1/30. He was extensively cross examined at length by Sh. Umang Mittal, Ld. Counsel for the defendant. Thereafter, matter was fixed for defendant's evidence. 8.1 In defence, the defendant company further examined its Director & Authorized Signatory /Representative Sh. Ramakant Ram as DW-1. He has also relied on the documents i.e. DW-1/1 to Ex. DW-1/3. The witness was duly cross examined by Sh. Sambit Nanda, Ld. Counsel for the plaintiff.
8.2 In defence, the defendant company further examined its Executive Assistant to the Advisor Mr. Sanjay Dalmia Mr. Sreedhar Panicker as DW-2. He has also relied on the documents i.e. DW-1/2 and Ex. DW-2/1. The witness was duly cross examined by Sh. Sambit Nanda, Ld. Counsel for the plaintiff. Thereafter, matter was fixed for final arguments.
9. Final arguments addressed by Sh. Sambit Nanda and Ms. Samaya Khanna, Ld. Counsels for plaintiffs and Sh. Umang Mittal and Ms. CS DJ 256/21 Page No. 9/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 Priyanka Marva, Ld. Counsels for defendant have been heard. Both the parties have also filed written arguments which reiterated the arguments addressed before the Court and same are not reproduced here in verbatim for the sake of brevity but will be dealt alongwith the findings upon issues at the relevant stage. Record has been carefully perused.
10. Issue wise findings Issue no. I. Whether plaintiff is entitled for arrear of license fee alongwith interest, as prayed for? OPP Issue no. II. Whether the plaintiff is entitled for damages/mesne profits as prayed for, if so at what rate and for what period?OPP Both the issues are taken up together since they are interconnected and finding on one issue will have bearing on the other. The onus to prove issue nos. I to II was placed upon the plaintiffs. 10.1 Execution of license agreement dated 30.04.2019 Ex. PW-1/2 is admitted between parties. Admittedly plaintiffs have obtained the possession of the suit property though there is a dispute between the parties as to when plaintiffs have received the possession. Admittedly, defendant has not paid license fee after April 2020/ from May 2020 onwards.
10.2 Objections as to authority of PW-1/ Sh. Jorawar Singh:
During PE, plaintiff has examined Mr. Jorawar Singh as PW-1 who deposed that he has been duly authorized by plaintiffs to file the suit vide board resolution dated 25.01.2021 Ex. PW-1/1 and he also deposed that he was executing affidavit of evidence in his capacity as accountant of plaintiff as well as house manager of the suit property.CS DJ 256/21 Page No. 10/27
MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 Now, the defendant has vehemently argued that Mr. Jorawar Singh/PW-1 cannot depose on behalf of plaintiffs in terms of order 3 rule 1, 2 and 3 of CPC nor can claim mesne profit as the board resolution does not mention that he can depose on behalf of plaintiffs. It has been further argued that execution of board resolution has not been proved by plaintiffs nor PW-1 is aware about the directors and board of directors who passed the said resolution. Even the employment of PW-1 with plaintiffs has not been proved properly. It has been further argued that PW-1, admittedly had signed the leave and license agreement Ex. PW-1/2 as a witness and therefore, his role is limited to identify the signatory of the documents.
As far as this plea is concerned, admittedly Mr. Jorawar Singh has signed the registered license agreement Ex. PW-1/2 as a witness. Plaintiffs have also relied upon the board resolution Ex. PW-1/1 and from the tone and tenor of the board resolution, it is clear that PW-1 was duly authorized to depose on behalf of plaintiffs and merely because it has not been specifically mentioned in the board resolution in so many words that PW-1 is authorized to depose on behalf of plaintiffs, does not mean that PW-1 is not authorized to depose on behalf of plaintiffs. It is settled principle that company is a separate legal entity and company being a legal entity cannot approach the Court on its own and human intervention in form of authorized representatives of company is required. The authority of AR of the company is tested to ensure that nobody takes the benefit from the Court in name of company without handing over the benefits to the company and also to ensure that the directors and other CS DJ 256/21 Page No. 11/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 persons related to company are aware of the legal proceedings so that company gets the actual relief whatever granted by the Court.
In the present suit, defendant has relied upon certain emails which are Ex- DW-1/2 (colly) I.e email dated 19-09-2020, 21-09-2020 written by plaintiffs to defendant, email dated 21-09-2020 written by defendant to plaintiffs, email dated 24-12-2020 EX PW-1/24 and email dated 26- 10-2021 written by defendant to plaintiffs. Interestingly, defendant has written all these emails to Mr. Jorawar Singh/PW-1, on behalf of plaintiffs, therefore, it is not the case where Mr. Jorawar Singh/ PW-1 has come to the Court on behalf of plaintiff companies, without representing plaintiffs companies previously. Rather, from the communications and emails exchanged between parties, it seems that plaintiff companies have always authorized PW-1/Mr. Jorawar Singh to represent plaintiff companies qua the present license agreement and to deal with the defendant. The filing of emails written by defendant to Mr. Jorawar Singh/PW-1 on behalf of plaintiff companies, is an implied admission on part of defendant with respect to authority of Mr. Jorawar Singh/ PW-1 to represent the plaintiffs and to depose on their behalf.
Merely because PW-1/Jorawar Singh is not aware about the names of Directors etc. does not mean that PW-1 has not authority to depose on behalf of plaintiff companies.
10.3 Dispute as to payment of electricity dues, water charges and gen sets fuel charges: As far as this dispute is concerned, admittedly plaintiff has not filed any bill to support its claim nor has pressed over the claim during evidence or final arguments, therefore, this claim is dismissed as CS DJ 256/21 Page No. 12/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 being not pressed upon by the plaintiffs.
10.4 Dispute as to the date when defendant vacated the property:
A. As per defendant, the occupant of premises vacated the premises in June 2020 as plaintiffs disconnected the basic amenities and had acted against the government guidelines during Covid -19 pandemic. B. As per plaintiffs, the occupant of property Ms. Navrattan Choudhary was in possession of the property at the time of filing of the suit and on 14.10.2021, plaintiffs took the possession of the suit property as the entire premises was abandoned by the defendant and the defendant left the premises keeping all doors open, keys left in open area and leaving the property unattended.
C. Now, the defendant has relied upon one email dated 21.09.2020 written by defendant to the plaintiffs in pursuant to the email written by plaintiffs asking for payment of water charges and charges towards fuel used in DG sets. The email dated 21.09.2020 written at 02:51:19 PM is part of Ex. DW-1/2(colly) and the relevant portion is "Dear Sir, reference your mail. The bill dated 2 nd September shows an amount of Rs. 4328.00 whereas since June the house is vacant, hence, should not be any bill".
D. The plaintiff has pointed out towards the email dated 24.10.2020 Ex. PW-1/24 which is admitted by DW-1 during cross examination that this email has been sent by the defendant to the plaintiffs and the email is as follows: "Thank you sir, contact you shortly, in the meantime kindly allow us to use the premises till end of January 2021 as the exams of her child will be there in January 2021. I shall send you Rs. 5 lacs early next CS DJ 256/21 Page No. 13/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 week i.e. Tuesday, Wednesday and the balance shall be settled as per our mutual consent....sorry for the inconvenience caused, which was due to the sudden collapse because of the corona pandemic. I am sure you all are also affected in your business also. We are very keen to settle it amicably to your entire satisfaction".
E. Admittedly prior to the same, defendant had written letter dated 01.10.2020 Ex. PW-1/21 [which is also part of Ex. DW-1/2(Colly)] to the plaintiff and the same is as follows:
"This has reference to License Agreement dated April 2019. .......As you are aware that, like other countries across world, India has been massively affected by the pandemic of COVID 19 due to which a nationwide lockdown was declared by the Government of India on 25th March 2020. India's coronavirus tally stands at 61.45 lakh, which is 12 lakh short of USA's Covid count (the highest in the world). Further, there has been concern over the new cases reported in India each day. The number has remained the highest in the world since August. The same has been continuing for many months and even till date the situation has not been normalized, the economy has gone drastically down and it is expected that it would take at least one more year for the situation to become somewhere normal. The Government of India has declared Covid 19 induced situation as a force majeure event vide its notification dated 19 February 2020 and again by the Government of India vide its office memorandum dated 20 March 2020. In fact, Hon'ble Delhi High Court has also treated COVID 19 situation as a force majeure event in many recent matters.
In the light of the above stated facts we hereby request you to kindly allow some concessions/waiver on the monthly rent payable as per the agreement. Kindly appreciate that we have been in cordial relations for past many years and have been paying timely license fee to you without any fail. We hope that you would agree with the genuine and equitable request hereby made by us regarding license fee CS DJ 256/21 Page No. 14/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 concession/waiver. Further we would like to inform you that we shall start paying the rent payable, as per mutually agreed terms from December 2020 onwards and shall clear the dues also. Hope you will kindly bear with us during this period".
F. Thus, combined readings of all the three emails show that the premises was in possession of defendant though the occupant Mrs. Navrattan Choudhary may have stopped residing in the property but defendant had never officially handed over the possession to the plaintiffs prior to filing of the suit. There was no surrender of the possession because there is nothing on record whereby defendant has informed the plaintiffs about handing over of the keys or possession to the plaintiffs. Had the premises been vacated by the defendant in June 2020 as claimed by the defendant, in the email dated 21.09.2020, mentioned above, the defendant would not have questioned the bill stating that "house is vacant" rather the defendant would have claimed that it had already vacated the premises and therefore, defendant had no liability to pay the bill at all. Further, if the defendant had already vacated the premises why defendant would assure in the email dated 24.12.2020 to pay Rs. 05 lacs as part payment with assurance to pay the remaining amount alongwith request to allow the defendant to use the premises till end of January 2021. The defendant had failed to produce any email or any other documents on record whereby prior to filing of the suit, defendant had ever taken the objections to the claims of plaintiffs that defendant was to pay arrears of rent and nowhere defendant had taken the plea that it had already vacated the premises.
G. Moreover, even in the email dated 06.07.2021 relied upon by the defendant himself which is part of Ex. DW-1/2(colly), defendant had CS DJ 256/21 Page No. 15/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 mentioned "We are in receipt of your mail. Kindly note that Mrs. Navrattan Choudhary is out of Delhi and forced to stay outside because of the frequent break down of electricity and water from time to time particularly at a time when her son was undergoing exams, on a number of occasions electricity and water connections were disconnected, putting her into lot of inconveniences...... since Mrs. Navrattan Choudhary is now out of Delhi, we are unable to do the joint inspection as requested by you vide your email".
Thus, defendant admitted that plaintiffs made a request for joint inspection of the suit premises after filing of the suit and defendant declined the request but nowhere defendant had mentioned that it had already vacated the premises and therefore, no question of joint inspection is made out.
H. Similarly, defendant had written an email dated 26.10.2021 to the plaintiffs and had stated:
"you charged us maintenance of lift and you stopped our access to the life for whole two years.
You are well aware how businesses are not at all functioning in such hard times. In past We have paid your rent duly, but the problems we were facing were duly conveyed to you and you did not rectify the same and even asked interest on rent when people were dying and Government had given guidelines to not harass occupants. Furthermore, the way you took possession of the property without any valid authority of law is a very serious matter of criminal litigation. We further request you to deliver our items kept in the house to us."
Thus, in the said email by questioning the manner of plaintiff in taking the possession of the premises, defendant has impliedly admitted that plaintiffs have taken the possession of the premises in October 2021 as deposed by PW-1 and it negates the plea of defendant that defendant CS DJ 256/21 Page No. 16/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 had vacated the premises in June 2020.
I. Further, defendant has examined DW-1 Mr. Ramakant Ram, AR of defendant company who deposed that the occupant of defendant shifted to some other place in June 2020 due to the harassment at hands of plaintiffs and its representatives. However, during cross examination, DW-1 deposed that:
"Q70. Are you aware as to when the suit property was vacated by Ms. Navrattan Choudhary?
Ans. In the year 2020, between May to July.
Q. 71 Did the Defendant Company sent any letter/communication to the Plaintiff Companies for taking possession of the suit property after vacation by Ms. Navrattan Choudhary?
Ans. I do not know. Vol. Mr. Sreedhar must have sent.
Q72. Did Ms. Navrattan Choudhary send the Defendant Company any letter or communication that she has vacated the suit property? Ans. No. Q73. To whom did Ms. Navrattan Choudhary handover the keys after vacating the suit property?
Ans. I am not aware.
Q76. Shown paragraph 14 of you Affidavit of Evidence i.e. DW-1/A. Did Ms. Navrattan Choudhary send any written communication to the Defendant Company regarding vacation of the suit property in June 2020? Ans. No. Vol. She informed me telephonically that due to various reasons problems in habitation of the suit property, she is vacating the same. Q84. Please see answer to question 76, where you have stated that Ms. Navratian Choudhary informed you telephonically regarding vacation of the suit premises. To whom did Ms. Navrattan Choudhary handover the key of the suit property while vacating the same?
Ans. I was informed by Ms. Navrattan Choudhary that she has handed over keys of the suit property to care taker/ landlord representative. Q85. Is it correct that the Defendant Company has not sent any letter/communication to the Plaintiff Companies regarding vacation of the suit property and handing over of the keys to the caretaker/landlord representatives? Ans. I do not have any knowledge."
Thus, DW-1 could not disclose the exact date when the occupant of defendant vacated the premises. Moreover, when defendant and CS DJ 256/21 Page No. 17/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 plaintiffs company were in communications through email, no reason is coming forward why defendant would not inform the plaintiffs in writing by way of email thereby informing the plaintiffs to take the possession of the property.
J. From the above discussion, it is clear that plaintiffs have been able to prove that plaintiffs have received the possession of the suit property on 14.10.2021 and defendant has failed to prove that the occupant of the defendant had vacated the premises in June 2020 as alleged by the defendant.
11. Objections as to harassment of the occupant of the defendant i.e. Mrs. Navrattan Choudhary:
11.1 The defendant had vehemently argued that the representatives of the plaintiffs used to harass the occupant of defendant and under grab of clause no. 2.2 of the agreement, they used to enter the premises again and again on the pretext of inspection. Further, in violation of clause no. 2.4 of the agreement, the representative of plaintiffs rarely allowed the occupant to use the lift as the representatives and staffs of the plaintiffs used to keep the lift busy for their personal use and activity and despite that defendant company was asked to share the expenses incurred towards maintenance of the lift. Further, during Covid-19 pandemic, plaintiffs and its staff failed to maintain the hygiene despite directions of government agencies. The plaintiffs had also disconnected electricity supply and water supply from time to time during March to April 2020 and also cut the generator supply and thus, indirectly dispossessed the occupant from the house in June 2020 by disconnecting all the basic CS DJ 256/21 Page No. 18/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 essential amenities. It affected the mental health of the occupant and also her son's education who was taking exams of class 12.
11.2 The defendant had examined its AR Mr. Ramakant Ram as DW-1 who by way of affidavit for evidence, reiterated the allegations made in the WS.
11.3 However, during cross examination, DW-1 deposed that:
" Q46. Shown Portion B to Bl in paragraph 4 of the Evidence Affidavit i.e. DW-1/A. How were these incidents of harassment referred by you, communicated to you? Ans. It was communicated telephonically by Ms. Navrattan Choudhary. Q47. Is it correct that you have not personally witnessed any of the incidents of harassment referred by you?
Ans. Yes. Vol. Such things cannot be verified at the same time. Q48. Did the Defendant Company send any written communication to the Plaintiff companies regarding the incidents of harassment at B-B1 in paragraph 4 of the Evidence Affidavit i.e. DW-1/A. Ans. No. Q52. Are you aware that there were separate electricity meters installed for each floor of the suit property?
Ans. Yes.
Q53. Are you aware how many floors were there in the suit property? Ans. Ground plus 2 floors.
Q54. Is it correct that Ms. Navrattan Choudhary occupied the first and second floor of the suit property?
Ans. Yes.
Q55. Shown paragraph 6 of your Evidence Affidavit i.e. DW-1/A. Since only Ms. Navrattan Choudhary was occupying the 1 st & 2nd Floor of the suit property, for what purpose would the employees/representatives of the Plaintiff companies have used the lift?
Ans. It could be various reasons for the same, including inspection of water tanks etc. Q60. Shown portion C to C1 at paragraph 7 of your Affidavit of Evidence i.e. DW-1/A. Do you have any personal knowledge about the correctness of the statements at portion C-C1 or have you personally visited the suit property to verify the said aspect?
Ans. No. Q61. I put it to you that the statements made by you, in paragraph 7 to 10 of your Affidavit of Evidence i.e. DW-1/A are false and fabricated. Is it correct? Ans. No, it is incorrect.
Q62. Shown paragraph 9 of your Affidavit of Evidence i.e. DW-1/A. Is it correct that you have no personal knowledge of the said statements?CS DJ 256/21 Page No. 19/27
MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 Ans. Yes. Vol. I was informed telephonically by Ms. Navrattan Choudhary. Q63. Shown portion D to D1 at paragraph 10 of your Affidavit of Evidence i.e. DW-1/A. Is it correct that you have no personal knowledge of the said statements? Ans. It is incorrect. I had visited the suit property and met the son of Ms. Navrattan Choudhary.
Q64. When did you visit the suit property?
Ans. I do not exactly remember the date. Vol. I had received a phone call from Ms. Navrattan Choudhary stating that her son was going to have his class 12 exams and the habitation in the property was becoming difficult. Q65. Did you send any written communication to the Plaintiff Company regarding the averments made in paragraph 10 of your Affidavit of Evidence r.e. DW- 1/A Ans. No."
11.4 Admittedly, DW-1 was not an eye witness to even a single incident with respect to the harassment of Ms. Navrattan Choudhary/ occupant of the defendant by the plaintiffs or its representatives and admittedly, he has deposed on the basis of information provided by Ms. Navarttan Choudhary/occupant of defendant. Therefore, the testimony of DW-1 with respect to averments of the harassment of occupant of the defendant is hearsay evidence only. Moreover, DW-1 could not explain why defendant has not documented the incidents shared by Ms. Navrattan Choudhary/ occupant of the defendant and has not communicated the same to the plaintiffs by way of email or any other mode. 11.5 Further, DW-1 has made only general and vague averments of harassment and not even a single specific incident with date, time, month and year has been mentioned by any of DWs. Admittedly Ms. Navrattan Choudhary/Occupant of the premises is still working with the defendant company and defendant could have examined her as all the incidents are particularly of her personal knowledge and experience. Defendant has not examined her as DW for the reasons best known to the defendant CS DJ 256/21 Page No. 20/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 only. However, the testimony of DW-1 not sufficient to prove the averments specifically in absence of any particular incident with date, time and month.
12. Allegations as to seepage and structural defect:
12.1 The defendant had taken the plea that plaintiffs failed to repair structural defects in shape of seepage, cracks etc. in violation of clause no. 1.8 of the agreement and failed to repair water connection to three bathrooms and also failed to repair the lift despite repeated requests by the occupant of the premises.
12.2 On the other hand,plaintiffs have denied the allegations. 12.3 As far as these allegations are concerned, DW-1 /AR of defendant company deposed that during negotiation at the time of taking the property on lease, plaintiff undertook to repair the seepage and water connection and lift repair to the suit premises but failed to do so after handing over the premises. Further, DW-1 /AR of defendant has relied upon the photographs Ex. DW-1/3(colly) to prove that plaintiffs have failed to do the repair and maintenance as per agreement and the property was not in good condition.
12.4 Admittedly, the occupant of the defendant stayed in the premises from April 2019 till April 2020 and meanwhile, defendant had never written any email to the plaintiff thereby asking the plaintiffs to repair the above mentioned defects. Further, defendant has not disclosed about the date, time and month when these photographs Ex. DW-1/3(colly) were taken and the duration is important because as per defendant there were defects like seepage etc. in the property when property was taken on CS DJ 256/21 Page No. 21/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 license and if it is true, then no reason is coming forward why defendant took the property on license at first place at all and why the occupant of defendant kept staying in the property despite failure of the plaintiffs to rectify the defects and why no objection was taken by defendant in writing for violation of terms and condition of lease with respect to maintain of seepage etc. 12.5 Further, defendant has put these photographs to PW-1 during cross examination and he deposed that:
"Q. 59. Can you identify the photographs of the rented portion filed by the defendants along with the written statement?
Witness is shown all such photographs filed along with the Written Statement. Ans. I cannot identify the photograph at page nos. 23, 24, 29, 30 and 31 of the list of documents dated 26.03.2022filed by the Defendant. I can identify photograph placed at page 25 which as per me may be the drawing room area at the first floor and the same is now marked 'P2' I can identify the photograph placed at page nos. 26 &27 which is the roof area of the rented portion of the suit property and the same has been exhibited as Ex. PW1/D1 &PW1/D2 respectively. I can also identify the photograph placed at page no. 28 which pertains to a room and the same exhibited as PW1/D3. I can also identify the photograph placed at page no. 32 which pertains to the lift area and the same is exhibited as PW1/D4.
Q 60. Can you tell the certain visible seepage in Ex PW1/D1 to PW1/D4 are existing since when?
Ans. The said seepage is a consequence of heavy rain that happened somewhere in the month of June-July, however, I cannot tell in which year. Vol. The same was not existing at the time of execution of the leave and license agreement.
Q 61. Can you tell what maintenance have you carried out with regard to the seepage visible in the photographs and how many times have you inspected the rented portion?
Ans. We were informed and complained to telephonically by Ms. Navrattan Chaudhary occupant of the defendant regarding the seepage in the rented portion, whereafter, we have got done major repairing work qua the same in the year 2020. I cannot tell the exact month.
Q 62. Have you ever shared any photograph of the repaired work qua the seepage to Ms. Navrattan Chaudhary occupant of the defendant company or to the defendant company?
Ans. I have not shared any such photograph. Vol. The said work was done in the CS DJ 256/21 Page No. 22/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 presence of Ms. Navrattan Chaudhary itself."
Thus, PW-1 admitted some of the photographs but has denied that the seepage etc. was in existence at the time of leave and license agreement. PW-1 also deposed that the defect was repaired as per request by the occupant of the defendant. Clearly, plaintiffs admitted that there was seepage etc. in the property but the question before the Court is whether the structural defects like seepage and maintenance etc. can be used by the defendant for exemption from paying the entire license fees as per agreement. The answer is definitely in negative for two reasons, (i) the seepage etc. is common in residential units due to normal day to day wear and tear of the property and (ii) the perusal of photographs relied upon by the defendant shows that there was seepage which required maintenance but it was not so extreme to the extent that it made the property inhabitable. Therefore, defendant cannot take the shelter of the defence that defendant is not liable to pay the license fees because plaintiffs failed to do the maintenance as per agreement.
13. The doctrine of frustration /force majeure: The defendant has taken the plea that Covid -19 pandemic had been declared as force majeure by the Govt. Of India as well as Hon'ble Supreme Court of India in various cases and the present case is covered by the same and thus, contract becomes void.
Both parties have relied upon the judgment of "Ramanand & Ors Vs. Dr. Girish Soni and Anr., 2020 SCC Online Del 635.
As far as this plea is concerned, Hon'ble High Court of Delhi in the above said case has observed that :
CS DJ 256/21 Page No. 23/27MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025
22. From the above judgments and the settled law, it is clear that Section 56 of the ICA would not apply to a lease agreement and other similarly situated contracts which are `executed contracts' and not `executory contracts'. Provisions of the Transfer of Property Act, 1882 governing landlord- tenant relationships qua Force Majeure.
30. Thus, for a lessee to seek protection under sub-section 108(B)(e), there has to be complete destruction of the property, which is permanent in nature due to the force majeure event. Until and unless there is a complete destruction of the property, Section 108(B)(e) of the TPA cannot be invoked. In view of the above settled legal position, temporary non-use of premises due to the lockdown which was announced due to the COVID-19 outbreak cannot be construed as rendering the lease void under Section 108(B)(e) of the TPA. The tenant cannot also avoid payment of rent in view of Section 108(B)(l).
36 (vi). Protection under any executive order(s): There are cases where the central and state governments may have, from time to time, given protection to some classes of tenants such as migrants, labourers, students, etc. These include Order No. 40-3/2020-DM-I (A) dated 29th March, 2020 issued by the Ministry of Home Affairs (MHA), Government of India and Order No. F/02/07/2020/S.1/PT. File/81 dated 22nd April, 2020 and Order No. 122-A F/02/07/2020/S.I/9 dated 29th March, 2020 both issued by the Delhi Disaster Management Authority (DDMA), Government of NCT of Delhi. Without going into the legality and validity of such Executive orders, suffice it to say that the present case is not covered by any of these executive orders."
Clearly, the present case, being case of lease and license agreement, is not covered under the doctrine of force majeure or doctrine of frustration as claimed by the defendant.
14. The plea of concession /waiver in license fees: Admittedly, defendant had written a letter dated 01.10.2020 Ex. PW-1/21 to the plaintiffs seeking waive of concession on license fees and during cross examination, PW-1 admitted that plaintiffs had given their consents CS DJ 256/21 Page No. 24/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 verbally to the defendant for some concession and waiver on monthly license fees on account of Covid -19 pandemic. However, PW-1 failed to disclose the quantum of amount of concession /waiver as agreed by the plaintiffs. Interestingly, even DWs have not disclosed the quantum of amount of concession or waiver as agreed by the plaintiffs. Thus, both parties have failed to disclose the quantum of concession or waiver on the monthly license fees and in such a situation it is the defendant who is bound to suffer because it is the defendant who is taking the plea of concession /waiver on monthly license fees being agreed by the plaintiff. Therefore, Court cannot give any concession or waiver on monthly license fees on its own.
15. Further, defendant has taken plea that as per clause no. 3.2 of the agreement plaintiffs had option to terminate the license if in case dues of license fees are due for more than 30 days and during cross examination, PW-1 admitted that no immediate steps have been taken by the plaintiffs for termination of license despite the dues being continued till January 2021 as alleged by plaintiff and it is clear that plaintiffs have not approached the Court with clean hands.
Clearly, the argument is misplaced and misconceived because the mere fact that plaintiffs have not terminated the license agreement immediately does not mean plaintiffs are not approaching the Court with clean hands.
16. Further, defendant has pointed out towards question no. 98 asked during cross examination of PW-1 wherein PW-1 admitted that a complete record of conversation between the representatives of plaintiffs CS DJ 256/21 Page No. 25/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 and defendant company has not been filed.
Now defendant could not disclose as to what information has been withheld by the plaintiff nor defendant has comefoward with specific conversation or email stating that plaintiffs had intentionally withhold that conversation or email from the Court and in absence of such disclosure by the defendant mere one line admission on part of PW-1 is not sufficient to discard entire testimony of PW-1 who otherwise had hold the waters of cross examination tightly.
17. From above discussion, it is clear that plaintiffs have been able to establish that defendant had not paid any license fee since May 2020 and plaintiffs had taken the possession of the property on 14.10.2021 i.e. during pendency of the suit.
Admittedly, in terms of clause no. 1.1 of registered license agreement Ex. PW-1/2, defendant had deposited a sum of Rs. 15 lacs with plaintiffs towards interest free security. As per plaintiffs(as deposed by PW-1 during cross examination in answer to question no. 42) the security amount has already been adjusted towards three months rent. Thus, the license fees upto July 2020 (after adjusting the security amount towards the three month rent) stands paid and defendant is liable to pay license fees from August 2020 till 14.10.2021.
18. The plaintiffs have claimed mesne profit @ Rs. 25000/- per day from January 2021 till 14.10.2021 alongwith interest.
However, admittedly, plaintiffs have not led any evidence to prove how plaintiffs are entitled for mesne profit @7.5 lacs per month from January 2021 onwards nor plaintiffs have led any evidence to prove the CS DJ 256/21 Page No. 26/27 MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025 actual damages that may have occurred to the plaintiffs. In absence of the same, it is held that plaintiffs are entitled to mesne profit/damages at the contractual license fees agreed i.e. Rs. 5000/- per month.
19. Plaintiffs have also sought pendent lite and future interest at the rate of 15% per annum. The plaintiffs have been deprived of its rightful amount and therefore, plaintiffs are entitled for reasonable interest to compensate for the loss of money which plaintiffs could have utilized for better prospective. Considering the nature of transactions between parties and facts and circumstances of the case, plaintiffs are held entitled for the interest at the rate of 7% per annum from filing of the suit till its realization. As far as the question of contractual interest on the amount due is concerned, the grant of pendentelite and future interest is discretion of the court and considering the factual proposition of the present case, the rate of contractual interest seems unreasonable and exorbitant. In view thereof, issue no. I and II are decided in favour of plaintiffs against the defendant.
Relief
20. In view of abovesaid reasons, the suit of the plaintiffs is decreed against the defendant for the following amounts i.e. (i) arrears of rent from August 2020 till 14.10.2021 @ Rs. 5 lacs per month alongwith interest @ 7% per annum from the date of institution of suit till its realization and (ii) Cost of the suit. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Typed to the direct dictation and (Prabh Deep Kaur)
announced in the open court DJ-05, South East
on this 15th April, 2025 Saket Courts, New Delhi
CS DJ 256/21 Page No. 27/27
MARUDHAR CULTIVATORS PVT LTD AND ANR Vs. DALMIA (BROS.) PVT LTD Dated 15.04.2025