Delhi District Court
Sh. Rakesh Manchanda vs M/S Sirali Impex & Others on 15 March, 2007
1
IN THE COURT OF SH. P.S.TEJI : ADDITIONAL DISTRICT JUDGE:
DELHI
Suit No.472 of 2006
Sh. Rakesh Manchanda. ...Plaintiff
Versus
M/s Sirali Impex & Others. ...Defendants
ORDER
1 By this order, I shall decide the applications filed by the plaintiff. The first application is under Order 39 Rule 1 & 2 CPC for the grant of interim injunction and the other application is under Section 151 CPC for deposit of damages/mesne profits. Reply to the applications have been filed on behalf of defendant no.1 to 3.
2 I have heard the parties and gone through the material available on record.
3 The plaintiff has filed the suit for possession, damages and mesne profits against the defendants. The plaintiff is the owner of the immovable property bearing No. B- 43, Okhla Industrial Area, Phase-I, New Delhi comprising of land and superstructure thereon. The plaintiff gave some portions of the property on leave and licence to various 2 persons. The defendant no.1 is partnership concern carrying on the work of garment exports and defendant no.2 and 3 are its partners. The defendant no.1 through defendant no.2 and 3 taken on leave and licence the portion comprising of entire ground floor plus rear shed, first floor with terrace and one office on the second floor along with fixtures and fitting thereon in the suit property. The defendant no.4 is the real estate agent who introduced the defendants to the plaintiff. The defendant no.4 approached the plaintiff and introduced defendant no.2 and 3 to the plaintiff for taking on leave and license in the name of their firm i.e. defendant no.1 for the portion in the suit property. A final leave and licence agreement dated 6.10.2005 was signed. The said agreement was operative w.e.f. 10.10.2006 for a period of three years at a monthly licence fee of Rs.60,000/- excluding consumption charges of electricity and water. The leave and licence showed that it was not a tenancy. At the time of taking the premises on licence, the defendants paid a security amount of Rs.3 lacs and were paying Rs.50,800/- monthly after deducting TDS. However in the TDS certified the defendants have wrongly described the license fee for rent. The 3 defendant no.1 to 3 started using the terrace for washing of clothes etc. due to which seepage crept in the parts of the building and even locked from inside the main gate at the passage. The passage was given to the defendants for their own use only but catered to the persons going to the basement. The defendants also stocked their raw material, stocks, iron frames etc. The plaintiff stopped the defendants from washing clothes on the terrace and to abide by the rules and regulations of the authorities. Around 2006, the plaintiff was not going to his property and the defendants installed a boiler, generator and machineries equipments on the terrace which installations were contrary to the rules and regulations and were causing damage to the building. The defendants failed to stop washing and to dismantle and remove the equipments. Then the plaintiff terminated the agreement by giving three months notice vide letter dated 16.8.2006. The defendants sent a notice dated 11.9.2006 vide which the plaintiff was requested to withdraw the notice dated 16.8.2006. On 16.11.2006, the plaintiff received a cheque for Rs.50,820/-, but the cheque was returned to the defendants. On 12.12.2006, when the plaintiff had gone to the premises, 4 the defendant no.2 and 3 along with their staff misbehaved with the plaintiff and locked the main gate from inside and put their stocks of cloth, packing material, frames etc. in the passage. The plaintiff has claimed that the defendant no.1 to 3 are the tresspassers and unauthorized occupants in the portion which was given on license. The plaintiff has claimed possession and mesne profits @ Rs.2 lacs per month from 1.11.2006.
4 The defendant no.1 to 3 in their written statement have submitted that the premises is meant for running industry or factory as per bye-laws being located in the industrial area. It is submitted that a portion of the property has been leased out by the plaintiff to the defendants who are carrying on the work of garment export. The defendants installed several machineries and manufacturing the garments to export the same and they are in exclusive possession of the suit property. It is submitted that the agreement described as leave and license agreement is a lease agreement which was operated from 10.10.2005 and not from 10.10.2006 for a period of three years on monthly rent of Rs.60,000/-. The defendants have deposited Rs.3,00,000/- as 5 refundable security and paid Rs.50,800/- as monthly rent after deducting TDS. It is further submitted that the defendants have not violated any law and regulation of the local authority and whatever is being done is in accordance with rules and bye-laws. It is further submitted that there is no prohibition to wash the clothes in the leased premises and they have obtained a consent order from Delhi Pollution Control committee vide Certificate No.O-005911 dated 1.12.2006. The defendants also obtained a certificate/ license from the office of the Chief Inspector of Factories (Labour Department) bearing license No.DFL-10498 dated 25.1.2007. The defendants also obtained a certificate of Importer- Exporter Code from the Ministry of Commerce issued on 19.3.2002. It is denied that the seepage crept in the part of the building. It is further submitted that the defendants are well within their right to lock the main gate for the purpose of security and it is opened whenever required. There is no obstruction to other occupants in the other portions of the building. It is denied that the passage was not given to the defendants for use. It is further submitted that the notice dated 16.8.2006 issued by the plaintiff was invalid and not in 6 accordance with law. It is further submitted that there is no question to vacate the premises before the expiry of period of lease. Rest of the case of the plaintiff has been denied by the defendants.
5 In its application u/o 39 Rule 1 & 2 CPC, the plaintiff has claimed that the leave and licence given to the defendants was terminated vide letter dated 16.8.2006 giving three months time period to leave and vacate the premises which was as per clause 20 of the agreement. It is further submitted that after expiry of three months, the defendants are unauthorized occupants and are in illegal occupation. The plaintiff apprehended that the defendants might induct or create interest or part with possession of the suit premises to third persons. It is further submitted that the defendants have no right to lock the main gate and not permit anyone to enter or to occupy the passage for stocking etc. The plaintiff has claimed prima facie case and balance of convenience in his favour.
6 The defendants in their reply claimed that they are in exclusive possession of the property as a lessee and there is relationship of landlord and tenant between the 7 plaintiff and the defendants. It is further submitted that clause 20 of the agreement is not applicable and letter dated 16.8.2006 is not in accordance with law. It is further submitted that the defendants are in exclusive possession along with main gate and are entitled to lock the same for the purpose of security and other reasons. However, there is no obstruction to anyone who are occupying other parts of building on account of closing of main gate. It is further submitted that the plaintiff is not in possession of any part of the suit premises so he has no prima facie case. The defendants sought dismissal of the application.
7 The present suit is for possession and damages/mesne profits. The defendants have not denied the ownership of the plaintiff on the suit property. The defendants have also not denied that the suit property was taken by them on lease from the plaintiff. The plaintiff has served a notice dated 16.8.2006 upon the defendants with regard to termination of lease of the defendants. The plaintiff is having apprehension that the defendants may part with the possession or create third party interest in the portion of the suit property. I am of the considered opinion that the plaintiff 8 is having prima facie case in his favour for the grant of interim injunction. The balance of convenience also lies in favour of the plaintiff. I am further of the considered opinion that if the interim injunction is not granted in favour of the plaintiff, he will suffer irreparable loss.
8 Consequently, the application u/o 39 Rule 1 & 2 CPC is allowed. The defendant no.1 to 3 are hereby restrained from inducting or creating any interest or parting with possession of the suit premises or portion thereof in B-43, Okhla Industrial Area, Phase-I, Delhi during the pendency of the suit till its final disposal. The plea of the plaintiff with regard to directing the defendants to unlock and remove the lock from the main gate of building cannot be accepted as the plaintiff is admittedly not in the possession of the suit premises and the plaintiff is not going to cause any obstruction in case the lock is not opened or removed from the main gate of the building.
9 In its second application u/s 151 CPC the plaintiff has claimed that the defendants be directed to pay a sum of Rs.2 lacs to the plaintiff as they are in unauthorized occupation of the suit premises. The plaintiff has further 9 claimed that the defendants are liable to pay damages at the market rate. The plaintiff has claimed a sum of Rs.2 lacs per month from the month of November 2006 till the disposal of the suit.
10 In its reply to the application u/s 151 CPC, the defendants have submitted that they are in rightful possession of the suit property. It is further submitted that the market rent of the similar building is not higher than the rent which is being paid to the plaintiff.
11 Apparently, the plaintiff has entered into an agreement with the defendant no.1 to 3 with regard to leasing out the suit premises. The agreement dated 6.10.2005 shows that the agreed rate of licence fee/rent between the parties is Rs.60,000/- per month. The defendants in their written statement have also admitted the rate of rent in the sum of Rs.60,000/- per month. The defendants in their reply to the application have also admitted this fact and submitted that the rate of rent of the building is not higher than the rent which is being paid to the plaintiff.
12 Consequently, the application of the plaintiff u/s 151 CPC is allowed. The defendant no.1 to 3 are hereby 10 directed to pay a sum of Rs.60,000/- per month, the admitted amount to the plaintiff w.e.f. December 2006 to February 2007 within fifteen days, and further continue to pay at the same rate per month on 7th day of every English calendar month till further orders. The order is passed without prejudice to the rights of the parties.
Announced in the open Court ( P.S. TEJI )
on March 15th, 2007 Addl. District judge
Delhi