Delhi District Court
Hukum Chand Sharma & Anr vs Recharge 1 Globus Pvt. Ltd on 15 April, 2019
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
CS DJ ADJ No. 1003/2018
Hukum Chand Sharma & Anr. ... Plaintiff
Versus
Recharge 1 Globus Pvt. Ltd. ... Defendant
ORDER
15.04.2019
1. A suit for possession / eviction, permanent injunction, recovery of rent, damages and mesne profits has been instituted by the plaintiffs namely, Hukam Chand Sharma and Sudesh Kumari Sharma (hereinafter "plaintiffs") against the defendant namely, Recharge 1 Globus Pvt. Ltd. (hereinafter "defendant") with regard to an immovable property WZ-C-21-22, Pocket - A, Patel Garden, Dwarka Mor, Uttam Nagar, New Delhi - 110059. The defendant is a private limited company under the Companies Act, 2017.
2. The facts of the case in a nutshell are that the plaintiffs had let out the immovable property comprising of first floor, half set (front side) fully furnished hall forming part of property WZ-C-21-22, Pocket - A, Patel Garden, Dwarka Mor, Uttam Nagar, New Delhi -
CS N. 1003/18 Page No. 1/25110059 (hereinafter "suit property") through a registered rent agreement dated 19.05.2017 for a period of 5(five) years to the defendant. The defendant is a private limited company under the Companies Act, 2013 and entered into the said rent agreement with the plaintiffs through its director Din Bandhu Jha. As per the rent agreement, the defendant was to pay monthly rent of ₹50,000/- (Rupees Fifty thousand only) to the plaintiffs for the first year and from the second year onwards, the monthly rent of the suit property would be ₹75,000/- (Rupees Seventy five thousand only) and thereafter 10% increase on existing rent every year until the 5(five) year term of the rent agreement. The defendant made delayed payments of rent to the plaintiffs and the defendant defaulted to pay rent for the months of February - August 2018. The cheques issued by the defendant towards the rent of February - May 2018, were dishonoured and the plaintiff lodged complaint cases against the defendant under the Negotiable Instruments Act, 1881. For the months of February - April 2018, the defendant is liable to pay monthly rent at the rate of ₹50,000/- (Rupees Fifty thousand only) per month to the plaintiffs and for the months of May 2018 - August 2018, the defendant is liable to pay monthly rent at the rate of ₹75,000/- (Rupees Seventy five thousand only) per month. Since the defendant failed to vacate and handover the possession of the suit property after determination of tenancy on failure to comply with notice dated 24.07.2018, the defendant is liable to pay damages, mesne profits @₹1,00,000/- (Rupees One lakh only) to the plaintiffs w.e.f.
CS N. 1003/18 Page No. 2/2501.09.2018 until the date of physical and vacant possession of the suit property. Hence, the present suit seeking possession/ejectment, recovery of rent, permanent injunction and damages/mesne profits
3. The plaintiffs instituted the present suit against the defendant on 27.09.2018. The plaintiffs also moved an application under Order XXXIX, Rule 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter "CPC") seeking ad-interim injunction against the defendant. The plaintiffs also moved an application under Order XV-A read with Order XXXIX, Rule 10 and Section 151, CPC seeking directions to the defendant to deposit monthly rent of ₹75,000/- (Rupees Seventy five thousand only) per month at the admitted rate until the disposal of the suit.
4. The service of summons of settlement of issues was effected upon the defendant on 03.11.2018. On 03.01.2019, the defendant filed its written statement along with an application under Order VIII, Rule 1, CPC seeking condonation of delay in filing of the written statement and replies to the application under Order XXXIX, Rule 1 & 2, CPC and to the application under Order XV-A read with Order XXXIX, Rule 10 and Section 151, CPC. This court vide order dated 07.02.2019 allowed the application moved by the defendant under Order VIII, Rule 1, CPC seeking condonation of delay in filing of the written statement subject to cost of ₹3,500/- (Rupees Three thousand and five hundred only) to be paid by the defendant to the plaintiffs.
5. The defendant in its written statement has admitted about being a tenant of the plaintiffs and taking the suit property from the plaintiffs CS N. 1003/18 Page No. 3/25 on rent through a registered rent agreement dated 19.05.2017. The defence urged by the defendant in its written statement is that the defendant had informed the plaintiffs in the mid of the month of February 2018 that directors and several associates left his company and the defendant was facing financial hardship and the defendant was unable to pay rent for few months within the stipulated time i.e. for the month of February 2018 the first week of the month.
6. The defendant in its written statement has urged that the plaintiffs on hearing the ordeal asked the defendant to vacate the suit property and it was agreed that the defendant would vacate the suit property on 28.02.2018. The defendant in its written statement has averred that it was agreed the plaintiffs would return the security amount of ₹1,00,000/- (Rupees One lakh only) to the defendant along with ₹1,95,000/- (Rupees One lakh ninety five thousand only) i.e. 50% of ₹3,90,000/- (Rupees Three lakhs and ninety thousand only), the expenses incurred by the defendant on furnishing and interiors of the suit property.
7. The defendant has urged in its written statement that after 3 - 4 days of the above mentioned oral understanding arrived between the parties, on realizing that the plaintiffs have to return the security amount of ₹1,00,000/- (Rupees One lakh only) and also ₹1,95,000/- (Rupees One lakh ninety five thousand only), the plaintiffs approached the defendant and requested the defendant to continue with the tenancy of the suit property without having financial worries. The defendant in its written statement has also urged that the plaintiffs CS N. 1003/18 Page No. 4/25 orally agreed that the monthly rent would not increase from ₹50,000/- (Rupees Fifty thousand only) per month to ₹75,000/- (Rupees Seventy five thousand only) per month until the financial condition of the defendant company smoothens out.
8. The defendant in its written statement has urged the defence that the since March 2018, the plaintiffs started to create number of hurdles in the working of the defendant from the suit property. The plaintiffs did not allow the defendant to run the business operations smoothly. Not only the plaintiffs blocked the ingress and egress to the suit property but also the plaintiff No. 1 approached the defendant's office demanding balance rent when the director of the defendant was engaged in business dealing with his customers.
9. The defendant in its written statement has stated that in the month of April 2018, the plaintiffs had a sudden change in mood and asked the defendant to vacate the suit property on account of unpaid rent, to which the defendant agreed and asked for return of security amount of ₹1,00,000/- (Rupees One lakh only) and ₹1,95,000/- (Rupees One lakh ninety five thousand only) i.e. 50% of ₹3,90,000/- (Rupees Three lakhs and ninety thousand only), the expenses incurred by the defendant on furnishing and interiors of the suit property after deduction of rent for the month of February to April 2018.
10. The defendant has urged the defence that in the month of April 2018 the defendant started to shift the perishable goods from the suit property, the plaintiffs insisted that the defendant should first pay the rent and only then he can shift his products, goods from the suit CS N. 1003/18 Page No. 5/25 property. The defendant in its written statement has averred that the plaintiffs have seized the perishable goods of the defendant by not allowing the defendant to shift the goods, the defendant handed over the rented premises i.e. suit property to the plaintiffs by handing over the key of the lock of the suit property in the month of April 2018.
11. The defence urged by the defendant in its written statement that with the plaintiffs asking the defendant to vacate the suit property prior to the expiry of the lock-in period of 2(two) years and without service of the mandatory one month notice, non-refund of the security amount of ₹1,00,000/- (Rupees One lakh only) to the defendant along with ₹1,95,000/- (Rupees One lakh ninety five thousand only) i.e. 50% of ₹3,90,000/- (Rupees Three lakhs and ninety thousand only) expenses incurred by the defendant towards the furnishing and interiors of the suit property and lastly seizure of defendant' goods worth ₹15,00,000/- (Rupees Fifteen lakhs only). The defendant in the written statement has also urged that the defendant reserve its right to file a counter claim against the plaintiffs.
12. With the replication filed on behalf of the plaintiff and on completion of pleadings, the issues were framed on 09.04.2019 and the arguments were advanced by the Ld. counsels for the parties on the application under Order XXXIX, Rule 1 & 2 CPC and application under Order XV-A read with Order XXXIX, Rule 10 and Section 151, CPC.
Application under Order XXXIX, Rule 1 & 2, CPC CS N. 1003/18 Page No. 6/25
13. Sh. Arun Chhachhia, Ld. counsel for the plaintiffs submitted that it is an admitted case of landlord tenant relationship amongst the parties. Ld. counsel further submitted that the defendant has not denied the factum of registered rent agreement.
14. Sh. Arun, Ld. counsel for the plaintiffs submitted that the plaintiffs comply with the trinity sine qua non of grant of temporary injunction i.e. prima facie case, balance of convenience and irreparable loss and injury and thus the same be granted to the plaintiffs.
15. Sh. Arun, Ld. counsel for the plaintiffs submitted that the suit property needs protection, as the defendant has admitted the monthly rent for the months of February - April 2018 remains unpaid. Ld. counsel further submitted that with the vacant possession of the suit property not handed over by the defendant to the plaintiffs, the damocles sword, of creating any third party interest in the suit property hovers until the possession is handed over to the rightful owners by the defendant.
16. Per contra, Sh. Akhilendra Narayan Singh, Ld. counsel for the defendant submitted that no case for grant of ad-interim injunction is made out, as the possession of the suit property was handed over by the defendant to the plaintiffs in April 2018.
17. Sh. Singh, Ld. counsel for the defendant submitted that the present application is nothing but an utter abuse of process of law. Ld. counsel further submitted that with grant of ad-interim relief, one of CS N. 1003/18 Page No. 7/25 the main reliefs for grant of permanent injunction sought by the plaintiffs would stand decreed.
18. In Premji Ratansey Shah v. Union of India & Ors. (1994) 5 SCC 547, Hon'ble Supreme Court held that the temporary injunction should be granted by a court after considering all the pros and cons of the case in a given set of facts to protect the possession of a person and the relief of temporary injunction cannot be granted just on merely asking that relief for the reason that such a relief is discretionary and equitable.
19. In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. AIR 2000 SC 2114, Hon'ble Supreme Court considered the principle governing the grant of temporary injunction, observing that the three basic principles, i.e. prima facie case, balance of convenience and irreparable injury, have to be considered in a proper perspective in the facts and circumstances of a particular case.
20. In Anand Prasad Agarwalla v. Tarkeshwar Prasad & Ors., AIR 2001 SC 2367, the Apex Court re-stated the principles for grant of temporary injunction, but observed that it may not be appropriate for any court to hold a mini-trial at the stage of the grant of temporary injunction.
21. The discretion whether or not to grant an interlocutory injunction has to be taken at the time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to CS N. 1003/18 Page No. 8/25 mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his/her right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.
22. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against the injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weight one need against another and determine where the 'balance of convenience' lies.
23. Keeping in mind the legal principles with regard to grant of temporary injunction, this court observes that the plaintiffs have a preferred a suit for possession/ejectment, permanent injunction, recovery of outstanding rent, damages/mesne profits against the defendant. It is an admitted case amongst the parties that the plaintiffs let out the suit property to the defendant through a registered rent agreement dated 19.05.2017 for a period of 5 years. It is also observed that not only the defendant in its written statement admitted that the defendant was undergoing financial crunch as a few of the directors and associates of the company left but also the monthly rent for the months of February - April 2018 remains unpaid.
24. This court is in consonance with the submissions advanced by the Ld. counsel for the defendant that court may not grant interim CS N. 1003/18 Page No. 9/25 relief to the party, which tantamount to be final relief, else the suit would stand be decreed without undergoing the whole nine yards i.e. the trial.
25. However, the position in law is well settled that the relief of temporary injunction is a discretionary relief. In Hindustan Petroleum Corporation Ltd. v. Sri Sriman Narayan & Anr., AIR 2002 SC 2598, the Supreme Court explained the purpose of grant of temporary injunction, observing as under:"It is elementary that grant of an interlocutory injunction during the pendency of the legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests:-
(i) whether the plaintiff has a prima facie case;
(ii) whether the balance of convenience is in favour of the plaintiff; and
(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.
26. The discretion whether or not to grant an interlocutory injunction has to be taken at the time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by CS N. 1003/18 Page No. 10/25 violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against the injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience"
lies.
27. I am of the view that the plaintiffs are able to make out a prima facie case as the relationship of landlord - tenant is not denied by the defendant. The balance of convenience also lies in the favour of the plaintiffs as the defendant has admitted that the monthly rent for the months of February - April 2018 remains unpaid.
28. On careful examination and perusal of the case record, I have observed that the defendant has not filed any document in support of its averments and submissions advanced by the Ld. counsel for the defendant that the possession of the suit property had been handed over to the plaintiffs by the defendant in April 2018. It is observed that the defendant has not filed any document with its written statement. The plaintiffs shall suffer an irreparable loss in case the defendant is not restrained from creating any third part interest with regard to the title and possession of the suit property.
29. That said, this court observes that the suit property is to be protected and thus, this court enjoins the defendant not to create, any CS N. 1003/18 Page No. 11/25 third-party interest with regard to the title and possession of the suit property until the disposal of the present legal proceedings.
30. Accordingly, the ad-interim relief in the terms of the prayer clause of the application under Order XXXIX Rule 1 and 2 CPC is allowed in favour of the plaintiffs and against the defendant.
31. The application under Order XXXIX Rule 1 and Rule 2, CPC is allowed and disposed of in above terms. Ordered, accordingly. Application under Order XV-A read with Order XXXIX, Rule 10 and Section 151, CPC
32. Sh. Arun Chhachhia, Ld. counsel for the plaintiffs submitted that the relationship of landlord tenant amongst the parties is admitted by the defendant. Ld. counsel further submitted that the parties entered into a written and duly registered rent agreement. Ld. counsel further submitted that the suit property is not covered under any rent protection legislation i.e. Delhi Rent Control Act, 1958, as the monthly rent was ₹50,000/- (Rupees Fifty thousand only) for the first year and ₹75,000/- (Rupees Seventy five thousand only) for the second year and 10% increment of the existing rent on yearly basis until the term of 5(five) years of the rent agreement.
33. Sh. Arun, Ld. counsel for the plaintiffs submitted that the defendant has unequivocally admitted in its written statement that the rent for three months i.e. February - April 2018 remains unpaid and thus the present application deserves to be allowed.
34. Per contra, Sh. Akhilendra Narayan Singh, Ld. counsel for the defendant submitted that the plaintiffs concealed the fact of refundable CS N. 1003/18 Page No. 12/25 security amount of amount of ₹1,00,000/- (Rupees One lakh only). Ld. counsel further submitted that the plaintiffs concealed the fact from the defendant that the suit property is unfurnished and they mislead the defendant by stating that the suit property is furnished, consequentially, the defendant had to incur expenditure to the tune of mount of ₹3,90,000/- (Rupees Three lakhs and ninety thousand only) and 50% of the expenses incurred by the defendant were to be returned by the plaintiffs to the defendant.
35. Sh. Singh, Ld. counsel for the defendant submitted that the defendant is not in possession of the suit property and the possession of the suit property is with the plaintiffs and the present suit is based on complete falsehood. Ld. counsel for the defendant during the course of arguments submitted that the defendant did inform the plaintiffs that a few of the directors and associates of the company are resigning and the payment of rent of the suit property would be delayed.
36. Sh. Singh, Ld. counsel for the defendant submitted that the monthly rent remains paid until the month of January 2018. Ld. counsel for the defendant further submitted that the rent for three months i.e. February, March and April, 2018 remains unpaid and with the possession of the suit property handed over to the plaintiffs by the defendant, and also the possession of the suit property being handed over to the plaintiffs within expiry of the first year, the defendant is not liable to pay any rent at the rate of amount of ₹75,000/- (Rupees Seventy five thousand only). Ld. counsel submitted on instructions that CS N. 1003/18 Page No. 13/25 the possession of the suit property was handed over to the plaintiffs around 25.04.2018 - 28.04.2018.
37. Sh. Singh, Ld. counsel for the defendant concluded his arguments on a note that the plaintiffs owe the defendant an amount of amount of ₹18,00,000/- (Rupees Eighteen lakhs only), out of which an amount of ₹1,00,000/- (Rupees One lakh only) is the security amount, ₹1,95,000/- (Rupees One lakh ninety five thousand only) i.e. 50% of ₹3,90,000/- (Rupees Three lakhs and ninety thousand only) expenses incurred by the defendant towards the furnishing and interiors of the suit property and ₹15,00,000/- (Rupees Fifteen lakhs only) towards the seized goods of the defendant by the plaintiffs.
38. Order XV-A, CPC is reproduced for ready reference and reads, as under:
"ORDER XV-A STRIKING OFF DEFENCE IN A SUIT BY A LESSOR (A) "In any suit by a owner/lessor for eviction of an unauthorized occupant/lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the court may direct on account of arrears upto the date of the order (within such time as the court may fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the court may direct. The defendant shall continue to deposit such amount till the decision of the suit unless otherwise directed.CS N. 1003/18 Page No. 14/25
In the event of any default in making the deposit as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off the defence.
(2) Before passing an order for striking off the defence, the court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence.
(3) The amount deposited under this rule shall be paid to the plaintiff owner/lessor or his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination."
39. Order XV-A was introduced in the CPC, as applicable to Delhi vide notification published in the Delhi Gazette dated 14.11.2008. The same provides that in a suit by an owner/lessor for eviction of an unauthorized occupant/lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. It further provides that upon default by the defendant in making the deposit, the defence of such a defendant may be struck off.
40. The landmark judgment on Order XV-A, CPC is of the Division Bench of the Hon'ble High Court of Delhi in Raghubir Rai v. Prem CS N. 1003/18 Page No. 15/25 Lata - 2014 211 DLT 516 (DB), and the relevant paragraphs are reproduced as under:
"13. Except for the judgment under appeal, till now there does not appear to be any pronouncement on interpretation on Order XV-A of the CPC.
14. We are of the opinion that for the purposes of the said interpretation, the background in which Order XV-A came to be inserted in the CPC as applicable to Delhi, is relevant.
15. Order XX Rule 12 of the CPC permits the grant of relief, in a suit for recovery of possession of immovable property, also of recovery of mesne profits/damages for unauthorized use and occupation of the property, from the date of institution of the suit till the date of recovery of possession. Order XX Rule 12 thus permits a Court to grant a relief, which had not become due to the plaintiff on the date of institution of the suit and the cause of action wherefor had not accrued on the date of institution of the suit and which fell due to the plaintiff after the date of institution of the suit. The said provision was made, perhaps to obviate the need for filing of a suit for recovery of mesne profits/damages for use and occupation of the property during the pendency of a suit for recovery of possession from the person in unauthorized occupation thereof.
16. As far as the city of Delhi was concerned, such suits for recovery of possession of property were rare. The Delhi Rent Control Act, 1958 governing the relations between the landlord and tenant CS N. 1003/18 Page No. 16/25 applied to all tenancies and which did not permit recovery of any mesne profits/damages for use and occupation from the tenant. However, in consonance with Order XX Rule 12 CPC, the same also in Section 15 thereof permitted the Rent Controller to, in a proceeding for eviction of tenant, direct the tenant to pay rent falling due during the pendency of the petition for eviction, again obviating the need for the landlord to successively file proceedings for recovery of said rent. The same also provided for striking off of the defense of the tenant to the petition for eviction, if in defiance of such a direction.
17. However, the Rent Act was amended with effect from 1 st December, 1988, making the provisions thereof inapplicable in several situations including where the rent of the premises was in excess of Rs.3,500/- per month. The same suddenly freed a large number of tenancies from the operation of the Rent Act. The landlords started instituting civil suits for recovery of possession from the tenants in occupation of properties for long. In such suits for recovery of possession, invariably a claim for mesne profits/damages for use and occupation from the date of institution of the suit and till recovery of possession was made. However, such a direction / decree could be made / passed only at the final stage.
18. The landlords / plaintiffs in such suits, started filing applications either under the provisions of Order XXXIX Rules 1 &2 or under Order XXXIX Rule 10 CPC for direction against the defendant/erstwhile tenant to, during the pendency of the suits pay mesne profits / damages for use and occupation during the pendency of suits.CS N. 1003/18 Page No. 17/25
19. The Courts started allowing such applications. However, if the landlord contended that the rent was Rs.1 lac per month and the defendant contended that the rent was say, Rs.5,000/- per month, the Court could issue direction for payment only at the rate of Rs.5,000/- p.m., even if on the basis of material on record the preponderance of probability was in favour of the landlord, inasmuch as Order XXXIX Rule 10 CPC permitted direction for payment of admitted amounts only.
20. This led to another situation. In some cases, inspite of direction for payment, the defendant, while continuing in occupation of the premises and defending the suit for possession, did not even comply with the order / direction for payment during the pendency of suit. A question arose of the remedy there against. Some Courts took the view that the only remedy there against was to apply for execution of the order. A doubt was expressed as to whether the defence of such a defendant could be struck off. Some Courts took a view that the CPC having provided expressly for the situations, where defence could be struck off and having not provided for the same to be struck off for non- compliance of an order under Order XXXIX Rule 10 of the CPC, even if the erstwhile tenant/defendant inspite of direction, failed to pay, the defence could not be struck off; though, by the time Order XVA was incorporated in CPC as applicable to Delhi, this Court held that defence could be so struck off.
21. It was in the aforesaid backdrop that the proposal of Order XV-A came to be mooted.CS N. 1003/18 Page No. 18/25
22. Though Order XVA is titled as "Striking Off defence in a suit by a lessor" but the same is not confined to striking off of defence only. The same, independently of Order XXXIX Rule 10 CPC, vests in the Court the power for issuing a direction for deposit. While so empowering the Court, as rightly held by the learned Single Judge, a departure was made from the language of Order XXXIX Rule 10 CPC. While under Order XXXIX Rule 10 CPC, a direction could be issued only for deposit/payment of admitted amount, the word „admitted‟ is conspicuous by its absence in Order XV-A of the CPC. A discretion has been vested in the Court to issue direction for deposit of "such amount" as the Court may direct. Such departure from language of an earlier existing provision is a tool of interpretation. There is abundant authority to the effect that when the situation has been differently expressed, the legislature must be taken to have intended to express a different intention. The Supreme Court in The Western India Theatres Ltd. Vs. Municipal Corporation of the City of Poona AIR 1959 SC 586 held that the legislature having substituted the word "reduced", earlier existing, with the word "modify", this change must have been made with some purpose and the purpose could only be to use an expression of wider connotation so as to include not only reduction but also other kinds of alteration; accordingly, the contention to interpret "modify" as "reduce" , because in the marginal note the word "reduce"
remained, was rejected. Reference may also be made to Khatri Hotels Pvt. Ltd. Vs. Union of India (2011) 9 SCC 126, where, finding the legislature to have designedly made a departure from the language of Article 120 of the Limitation Act, 1908, in enacting Article 58 of the 1963 Act, by CS N. 1003/18 Page No. 19/25 introduction of the word "first" between the words "sue" and "accrued", it was held that if the suit is based on multiple causes of action, the period of limitation will begin to run from the date when the cause of action first accrued.
23. We are therefore unable to agree with the contention of the counsel for the appellant/defendant that the Court, in exercise of powers under Order XV-A of the CPC, is incapacitated from directing deposit at a rate higher than that admitted by the defendant.
24. We are of the view that the Court, in exercise of powers under Order XV-A of the CPC is empowered to direct deposit at such rate as the erstwhile tenant / defendant may on the basis of material on record be found to have agreed to pay to the landlord for the said period even if the tenant before the Court may not have admitted the same or disputed / controverted the same.
Similarly, in a suit between the owner of immovable property and an unauthorized occupant, Order XV-A empowers the Court to direct the defendant who though may not be liable to be ejected / dispossessed immediately without trial but who, on preponderance of probabilities may not be found to have a right to continue in possession of the property, to deposit during the pendency of the suit such amount as may appear to be reasonable, to safeguard the right of the owner of the property and to ensure that such owner is compensated at least for the time taken in adjudication of a false defence taken up by the defendant in unauthorized occupation. This, in our view is necessary to avoid the process of the Court being abused by unscrupulous litigants and to curb CS N. 1003/18 Page No. 20/25 the growing tendency of using the process of litigation as a tool of oppression.
25. We should however not be interpreted as laying down that Order XVA empowers the Court to, without evidence assess mesne profits or to merely by taking judicial notice and without any material on record, arbitrarily direct the defendant to deposit a much higher amount then what he had been paying or had agreed to pay. Reference in this regard can be made to the judgment of the Division Bench of this Court in National Radio & Electronic Co. Ltd. Vs. Motion Pictures Association 122 (2005) DLT 629 laying down that mesne profit have to be proved by reliable and cogent evidence in accordance with law. Of course, if the erstwhile tenant / defendant is found to have agreed to periodically increase the rent / user charges, even if such contract may have come to an end, in exercise of powers under Order XV-A of the CPC direction for deposit with such increases can be made unless strong grounds exist for such increases being not due.
26. Applying the aforesaid principle to the facts of the present case, the learned Single Judge had two versions before him. One, of the respondent No.1/plaintiff of the last rent paid by the appellant/defendant at the rate of Rs.3 lakhs per month and the other of the appellant/defendant, of the last rent being paid at the rate of Rs.1,000/- per month. The learned Single Judge has chosen to issue the direction for deposit @ Rs.1 lakh per month.
27. We have perused the suit file and find neither the respondent No.1/plaintiff nor the CS N. 1003/18 Page No. 21/25 appellant/defendant to have placed on record any document to show the rate of rent. The Commission Agency Agreements which are denied by the appellant/defendant of course show that the payment was being made @ Rs.1.5 lakhs per month. The rent receipt purportedly issued by the respondent No.1/plaintiff of receipt of rent @ Rs.1000/- per month is denied by the respondent No.1/plaintiff.
28. We are prima facie unable to believe that a valuable commercial property, as the subject property is, would have been let out at a rent below Rs.3,500/- per month, allowing the letting to fall within the ambit of the Rent Act, where under the eviction of a tenant is not only difficult but virtually impossible. Both the parties obviously have been indulging in transactions in cash, perhaps to avoid taxes. We in the circumstances are of the opinion that there is no reason to interfere with the order of the learned Single Judge.
29. There is thus no merit in the appeal."
41. Keeping the legal principle culled out by the Division Bench of the Hon'ble High Court of Delhi in Raghubir Rai v. Prem Lata - 2014 211 DLT 516 (DB) it is observed that the defendant has neither denied the factum of landlord relationship nor the outstanding rent of three months from February - April 2018.
42. It is observed that though the defendant in its written statement has urged the defence that the plaintiffs have failed to pay the security amount of ₹1,00,000/- (Rupees One lakh only) to the defendant along CS N. 1003/18 Page No. 22/25 with ₹1,95,000/- (Rupees One lakh ninety five thousand only) i.e. 50% of ₹3,90,000/- (Rupees Three lakhs and ninety thousand only) expenses incurred by the defendant towards the furnishing and interiors of the suit property and lastly seizure of defendant' goods worth ₹15,00,000/- (Rupees Fifteen lakhs only).
43. This court has also observed that the defendant not only in the written statement has stated that the defendant reserve its right to file a counter claim against the plaintiffs but also Ld. counsel for the defendants at the time of arguments laid great emphasis that the defendant is contemplating to file written statement. It is observed that the defendant filed its written statement on 03.01.2019 and yet until today no counter claim has been instituted by the defendant against the plaintiffs.
44. This court has also observed that the defendant in its written statement and the Ld. counsel for the defendant during arguments on 09.04.2019 stated that the possession of the suit property has been handed over to the plaintiffs in April 2018, however, no document in support of the averments and the submissions advanced with regard to handing over the possession of the suit property has been placed on record by the defendant.
45. Lastly, the arguments advanced by the Ld. counsel for the defendant that the plaintiffs have seized the goods, products of the defendant worth ₹15,00,000/- (Rupees Fifteen lakhs only) are fallacious. On one hand the defendant states that the possession of the suit property was handed over by the defendant to the plaintiffs by CS N. 1003/18 Page No. 23/25 handing over the key but on other hand, no plausible explanation has come forward by the defendant in its written statement that why no recourse in law had been sought by the defendant against such seizure of goods, particularly, when it is an admitted case of the defendant that he was going through financial doldrums.
46. Keeping in view the legal principle, above discussions and observations, I deem appropriate to direct the defendant to deposit the arrears of monthly rent @ ₹50,000/- (Rupees Fifty thousand only) for the months of February, March and April 2018 and also for the months of May 2018 until December 2018 the arrears of monthly rent @ ₹75,000/- (Rupees Seventy five thousand only), as the defendant filed its written statement on 03.01.2019, be deposited within 4 (four) weeks from today.
47. In the event of any default in making the deposit as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off the defence.
48. This court further observes that the suit shall be tried uninfluenced by any observations made by the court in the present order, which is the prima facie view for disposal of the plaintiffs' application under Order XXXIX Rule 1 and 2, CPC and application under Order XV-A read with Order XXXIX, Rule 10 and Section 151, CPC.
49. The plaintiffs in the present legal proceedings are senior citizens and thus keeping the larger interest of justice, I deem appropriate to CS N. 1003/18 Page No. 24/25 direct the parties to appear in person before court. List on 30.04.2019 for appearance of the plaintiffs and director of the defendant.
Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI
SINGH JAGGI Date: 2019.04.15
15:17:53 +0530
Pronounced in the open Court (Hargurvarinder Singh Jaggi)
on 15.04.2019 Addl. District Judge-02
South West District
Dwarka Courts Complex
New Delhi
CS N. 1003/18 Page No. 25/25