Delhi High Court
Vn Behal & Ors vs Gurmeet Singh Wadalia on 17 April, 2015
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.7/2005
Decided on : 17th April, 2015
VN BEHAL & ORS ..... Plaintiffs
Through: Ms.Indra Jai Singh, Sr.Adv. with
Mr.A.K.Mehta, Mr.Sumant De and Mr.Amresh
Anand, Advs.
versus
GURMEET SINGH WADALIA ..... Defendant
Through: Mr. Amit S.Chadha, Sr.Adv. with Mr.Kunal
Sinha, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
RP No.133/2014
1. This order shall dispose of RP No.133/2014 by virtue of which the respondent is seeking review of the order dated 24.02.2014.
2. Before dealing with the grounds on which the review is sought, it may be pertinent to mention that the plaintiff Nos.1 & 2 are the owners and landlord of property No.49, Ring Road, Lajpat Nagar III.
3. The ground floor and the basement of the aforesaid property along with lawn at the front and eastern drive way were let out by the plaintiffs to the defendant as the sole proprietor of M/s Tanya Import and Export Firm for a period of three years at the rate of Rs.1,50,000 CS(OS) No.7/2005 Page 1 per month commencing from 01.04.2003. The defendant had allegedly paid a sum of Rs. 6 lakhs as security deposit to be refunded on the completion of the tenancy. No rent was paid with effect from 01.07.2003. A legal notice dated 05.08.2004 under Section 106 of the Transfer of Property Act was issued to the defendant terminating the lease agreement and demanding payment of use and occupation charges for the future at the rate of Rs.2 lakhs per month in the event of his default in handing over the possession. The legal notice was replied vide letter dated 10.08.2004 stating therein that the lease deed dated 18.01.2003 was cancelled on execution of another lease deed dated 20.02.2003 with the defendant in the capacity of sole proprietor of M/s House Vadalas. The plaintiff has vehemently denied that the lease deed dated 18.01.2003 executed between them and M/s Tanya import and Export, a sole proprietary concern of the defendant was ever modified/cancelled by agreement to lease dated 18.01.2003, 13.03.2003 and 20.02.2003. Another legal notice dated 06.10.2004 enhancing the use and occupation charges to the tune of Rs.2,50,000/- was issued which was also replied on 16.10.2004 taking the plea that a fresh lease had been executed, but no copy of the lease deed was furnished. Thereafter a legal notice dated 19.11.2004 was served on the defendant terminating his tenancy with effect from 31.12.2004 and the suit for possession was filed. During the pendency of the suit, this CS(OS) No.7/2005 Page 2 court had vide order dated 08.12.2006 directed the defendant to deposit the arrears of rent at the rate of Rs. 1,50,000/- per month within a period of two weeks with effect from 01.07.2003 till date. On appeal being filed by the defendant this order was confirmed by the Division Bench on 20.02.2007. Court had also directed that the rent which would be deposited by the defendant shall be kept in a fixed deposit for a period of one year and the future rent shall also be deposited in a Fixed Deposit for each successive month for a period of 6 months each.
4. On 24.02.2014, this court passed an order on a contempt petition filed by the plaintiff giving him an opportunity to deposit the rent in terms of the two orders passed earlier on 08.12.2006 and confirmed on 20.02.2007 within a period of one month failing which the notice was directed to be issued to the defendant to show cause as to why action may not be initiated. It is after passing of the aforesaid order that the present application for review has been filed and the ground for review is that vide order dated 13.03.2007, the court had directed the original documents filed by the defendant to be sent to CFSL and the same were found to be genuine vide report dated 30.05.2007 and 01.06.2007.
5. It is contended by the learned counsel for the defendant that since the genuineness of the aforesaid documents prima facie had been proved CS(OS) No.7/2005 Page 3 as per law and the defendant/applicant has been found to be paying only rent of Rs.15,000, therefore, the order dated 24.02.2014 directing him to deposit rent at the rate of Rs.1,50,000/- deserves to be recalled/modified/reviewed. It has also been contended by the learned counsel that the applicant/defendant was ready and willing to pay the rent at the rate of Rs.15,000/- and had also enclosed a pay order for a sum of Rs. 15.75 lakhs being complete payment up to the date calculated at the rate of Rs.15,000/- per month.
6. It was also contended that there was an application filed by the plaintiff seeking a decree of possession on the basis of admission under Order 12 Rule 6 CPC which application was dismissed right up to the Supreme Court vide order dated 08.03.2010 and, therefore, all these facts are relevant and deserve to be taken into consideration for the purpose of review and hence the review application has been filed.
7. The learned senior counsel for the plaintiffs has contested the application. It has been contended by her that there is absolutely no ground for reviewing the order directing the defendant/applicant to deposit the rent at the rate of Rs.1,50,000/- per month which has been confirmed by the Division Bench. It has been contended that as a matter of fact, the continued failure to not deposit the rent in terms of the three orders passed by this court, the defendant is guilty of wilful disobedience of the order of the court. It was also contended by her CS(OS) No.7/2005 Page 4 that once the order had become final inasmuch as it was confirmed by the Division Bench, then there cannot be any modification to be done by this court sitting singly and until and unless the defendant/applicant purges himself of the contempt. Therefore this application does not deserve to be entertained by this court.
8. First of all the learned counsel for the applicant/defendant has not been able to show that there is any error apparent on the face of the record. All that he has contended is that the applicant/defendant has a report of CFSL in his favour wherein prima facie it has been opined by the expert that the signature on the questioned documents are tallying with the so called admitted lease agreement which the plaintiff is claiming to have signed originally therefore the order deserves to be reviewed. Merely because the report from the CFSL has been received, that cannot be ground for reviewing the order more particularly when it has been affirmed by the Division Bench. As a matter of fact after the division bench has put the seal of legality on the order the applicant cannot seek review or modification of the order. He ought to comply with the same that is to say that he must purge the contempt then only he can be heard any further. Accordingly the application for review is rejected. It has also been contended by the learned counsel for the plaintiff since the order has not been complied with by the defendant/applicant, CS(OS) No.7/2005 Page 5 therefore, his defence be struck off. In this regard, the learned counsel has sought to rely on the following judgments:
9. In Pyara Lal Taheem & Anr. vs. Mohan Murti Shandilya [202 (2013) DLT 365, it has been held as under:
18. Order 15A of the CPC, being a Delhi amendment, is unambiguous in its terms that where a Defendant who is required to deposit rent as per the directions of Court, fails to do so his defence is liable to be struck off. It gives statutory expression to the law earlier explained in several decisions. In M/s. Jwala Pershad Ashok Kumar Chopra HUF v. M/s. Nath Tubes Pvt. Ltd. : AIR 1994 Del 317, the Court held that it can, in a case of this kind, in fair exercise of its judicial discretion, order for deposit of money pending the decision of the suit. In Erum Travels v. Kanwar Rani 69 (1997) DLT 567, the Court considered the permissibility of striking off the defence for non-payment of rent/damages under Section 151 and Order XXXIX Rule 10 CPC. The Court held "The combined effect of Order XII Rule 1 and Order XXXIX Rule 10 of the Code of Civil Procedure is that a Court can, in a case of this kind, in fair exercise of its judicial discretion order for deposit of money pending decision of a suit. Surely, the provisions of Section 151 of the Code of Civil Procedure can be invited in aid to cover all such cases as are analogous to these principles."
9. In Prakash Arts v. Mohammed Rafiuddin; 2011 (1) ALT 467, it has been held as under:
CS(OS) No.7/2005 Page 6
10. From a reading of the provision, it becomes clear that it is intended to protect the interests of the owner, lessor or licensor of an immovable property, whenever proceedings are initiated for eviction of the tenant, lessee or licensee. The necessity for incorporating that provision arose, on account of the fact that in suits filed for eviction of the tenants or licensees of whatever description, payment of rent or licence fee was not being made, taking advantage of the very pendency of the suit. Section 151 was found to be inadequate to clothe the Court with the power to pass necessary orders. Therefore, Order XVA C.P.C., was added, which empower the Court to pass orders directing deposit of rent or licence fee by the defendant in a suit for eviction. The power is also conferred on the Court to decide the dispute as to the quantum of rent, though for the limited purpose of the I.A. In case the rent or licence fee, as directed by the Court, is not deposited, the defendant is exposed to the forfeiture of defence.
10.All these judgments clearly show that in case order of payment of rent is not complied with there is sanction provided by striking off the defence of the tenant under Order 15A. This sanction as on date at least is available in metropolitan towns of Delhi and Bombay where there is lot of litigation between the landlords and tenants where the latter try to enjoy the premises, yet not pay any amount to the landlord.
CS(OS) No.7/2005 Page 7
11.In the instant case, despite all the opportunities and latitude bestowed by the court on the appellant, he has failed to comply with the Order of the Court in depositing the rent repeatedly with impugnity. This led to the passing of the impugned Order.
11. Before the learned Single Judge, learned Counsel for the plaintiff/Respondent had articulated the grievance that the Appellant had defaulted in payment for three continuous months, despite the pre-
emptory Order. It was in those circumstances that the court has observed that the Defendant was deliberately indulging in default only with a view to harass the plaintiff. The dishonour of cheques for the month of May, June and July have been noted. Wherever such a default occurs, the defence of the defendant deserves to be struck off.
12. So far as, the purported error pointed out at page 6 of the judgment is concerned, it appears, this Court merely recorded therein the submissions of the learned counsel for the appellant and the same are not the findings of this Court.
13. In view of the aforesaid facts as there is no error on the face of the record and before issuing a notice to the defendant to show cause as to why contempt action, following directions are given:
i) That the defendant/applicant is given four weeks time to clear the entire arrears of rent at the rate of Rs.1,50,000/- per month as ordered CS(OS) No.7/2005 Page 8 by the learned single Judge and affirmed by the Division Bench, within a period of four weeks from today failing which his defence will be peremptorily struck off the record.
ii) The rent which is being paid by the occupier of the ground floor and the basement of the premises to whom the premises have been sub let by the defendant/applicant, shall deposit with the Registrar General of this court the amount of rental being paid by him to the defendant/applicant on or before 7th of each English calendar month starting from the month of April, 2015 till further orders. For the month of April, 2015, he shall deposit the amount with the Registrar General on or before 7th May, 2015 and thereafter the same cycle will continue for the succeeding calendar months.
iii) In case the amount is not deposited by the occupier of the ground floor and the basement of the premises, the court will be compelled to appoint a receiver to take possession of the ground floor and the basement of the suit premises or the premises shall be sealed on as it is where it is basis.
iv) The aforesaid direction is being passed on account of the fact although the premises had been let out to the defendant/applicant with effect from 01.03.2007, but from 01.07.2003 till date the defendant/applicant has not paid even a single penny as rent. The defendant/applicant despite court orders having been passed by the learned single Judge and the Division Bench and, therefore, the defendant/applicant or any other person who has been put in possession by the defendant/applicant cannot be permitted to occupy and use the premises to the detriment of the landlord without discharging their corresponding obligation.
15. In view of the reasons given above, the review petition is dismissed and the order dated 24.02.2014 is reaffirmed.
16. Expression of any opinion by this court may not be construed as an expression on the merits of the case.
V.K. SHALI, J.
APRIL 17, 2015/dm
CS(OS) No.7/2005 Page 9