Delhi District Court
Mr. K.L. Gugnani vs M/S. Primus Retails Pvt. Ltd on 11 March, 2011
IN THE COURT OF MS. NEELAM SINGH, ADJ-II, SOUTH,
SAKET, NEW DELHI
Suit No. 46/11
Mr. K.L. Gugnani
2/11, Nehru Enclave
Kalkaji Extn.,
New Delhi-110019 ...Plaintiff
VERSUS
M/s. Primus Retails Pvt. Ltd.
No. 7, 1st Cross, 3rd Main
Ashwani Layout, Eji Pura,
Bangalore-560 047.
Also at:
No. 503 & 503A, 5th Floor
Manipal Centre, North Block
47, Dickenson Road, Bangalore-960042
Also at:
Plot No. 331/1/2, NH-8
Rangpur, Mahipalpur
Near Radisson Hotel,
New Delhi-110037 ...Defendants
PLAINT PRESENTED ON: 20.02.2010
ARGUMENT HEARD ON: 11.03.2011
JUDGMENT ON: 11.03.2011
JUDGMENT
1. Vide this judgment I shall dispose off the suit for recovery of Rs. 4,70,315/- filed by plaintiff Shri K.L. Gugnani. It is the case of plaintiff that plaintiff is the sole and absolute owner of a property situated at UG SR 16, Ansal Plaza, Link Road, NH 24, Vaishali, Ghaziabad, U.P. having super built up area of approx.844 square feet and approx. carpet area of 550 square feet 1 and Defendant is a company incorporated under the provisions of the Companies Act, 1956 having its registered office at the place mentioned above, approached the plaintiff and showed its inclination to take on lease the aforesaid property on rent for commercial purpose. The plaintiff vide lease deed dated 13.12.2007 let out the property to the defendant on the terms and conditions mentioned in the lease deed.
2. Clause 2 of the lease deed stipulated that the defendant will pay the monthly rent @ Rs. 65 per sq. feet for super built up area of 844 sq. ft. aggregating to an amount of Rs. 54,860/- and monthly rent was exclusive of " Common Area Maintenance Charges" (CAM Charges). It was also agreed by the defendant that they will pay the CAM charges directly to the maintenance agency on the rates applicable at the relevant time.
3. In terms of the lease deed, the defendant was liable to pay the rent on or before 10th of each subsequent calendar month to the plaintiff. It was also agreed that the first 24 months of the tenure of lease will be treated as lock- in period and the defendant will not be entitled to terminate the lease deed during the currency of lock-in period.
4. The defendant has been irregular in making payment of agreed lease rentals from the month of October 2008 onwards. The plaintiff also pointed out about the defaults in making payment of lease rentals. The defendant further defaulted in making payment of amount towards service tax in terms of clause 2(c) of the lease deed. It is submitted by plaintiff that in terms of Lease Deed, the defendant was liable to reimburse the amount towards service tax to the plaintiff. Clause 2(c) reads as under:-
" The Lessee shall reimburse the 100% of the service tax 2 paid by the Lessor subject to such terms contained in the Annexure-2."
5. In the month of April 2009, the defendant requested the plaintiff to reduce the monthly rent from Rs. 54,860/- to Rs. 45,000/- per month in view of the general recession in the market. Plaintiff assured the defendant to consider his request and suggested the terms and conditions on which the request of the defendant for the reduction of monthly rent could be considered. However, the defendant based on aforesaid discussion, has unilaterally sent a letter for reduction of rent and asking the plaintiff to confirm the same. Plaintiff flatly refused to confirm the proposal of the defendant to reduce the monthly rent as the said letter was not in terms of verbal discussion. Further, no addendum, as agreed, was finalized so that proposal for reduction of monthly rent could be finalized and implemented.
6. That the defendant with malafide intention started paying monthly rent at reduced rates to plaintiff which is contrary to the terms of lease deed. The defendant also committed breaches in making payment of monthly rent and amount towards service tax. Defendant failed to make the payment of arrears of rent and service tax to the plaintiff despite repeated requests.
7. Thereafter, plaintiff was constrained to send a legal notice dated 24/28 August 2009 through his Advocates requesting the defendant to clear the arrears of rent and arrears of amount towards service tax. The said legal notice was received by defendant. Pursuant thereto, one of the officials of defendant, Shri Arnab Mukherjee, Marketing Head discussed the issues of payment of arrears of rent and service tax with the plaintiff and assured that outstanding arrears will be paid within a month. The plaintiff also received a 3 cheque no. 027871 dated 26.11.2009 for a sum of Rs. 38,047/- purported to be rent for the month of July 2009. It is submitted by the plaintiff that said cheque was not in accordance with the terms of lease deed dated 13.12.2007. However, plaintiff encashed the said cheque under protest and advised the defendant to pay the monthly rent, arrears of rent and service tax as per the said lease deed. The plaintiff vide letter dated 23.12.2009 again requested and reminded the defendant that the outstanding amount (arrears of rent and service tax) has not been paid despite assurances and also furnished the details of the outstanding rent and service tax by defendant vide his letter dated 23.12.2009. But till date defendant has not paid monthly rent from August 2009 till December 2009 along with difference of rent for the month of April 2009 to July 2009. It is also submitted that defendant paid Rs. 38,047/- towards rent for July 2009, which is less than the agreed rent of RS. 54,860/-. On 5.2.2010, the plaintiff came to know that defendant is in process of shifting its stocks/ belongings from the leased premises. The plaintiff immediately talked to the representative of the defendant to confirm the authenticity of information. The plaintiff has also reported to the police his apprehension that defendant may vacate and run from the demised premises. The police advised the plaintiff to take legal recourse for recovery of the outstanding amount. The malafide intention on the part of the defendant is apparent. No amount has been paid by defendant to the plaintiff till date and the plaintiff has filed the present suit.
8. Summons were issued to the defendants but none appeared on their behalf and defendant was proceeded ex-parte on 28.4.2010.
9. The plaintiff has led evidence by way of an affidavit reiterating his case. Copy of Lease Deed dated 13.12.2007 is Exhibit PW-1/1. Copy of letter 4 dated 20.3.2008 to the defendant for non payment of service tax with regard to leased premises is Exhibit PW-1/2. Copy of letter dated 2.7.2008 to defendant along with statement of account of rent in respect of leased property is Exhibit PW-1/3. Copy of letter dated 16.7.2008 to defendant for non payment of service tax along with registry receipt is Exhibit PW-1/4 & Exhibit PW-1/5. Copy of letter dated 14.08.2008 to defendant for non payment of service tax in respect of leased premises along with registry receipt is Exhibit PW-1/6 and Exhibit PW-1/7. Copy of letter dated nil to the defendant for non-payment of service tax is Exhibit PW-1/8. Copy of letter dated 13.10.2008 to the defendant for non-payment of service tax along with registry receipt is Exhibit PW-1/9 & Exhibit PW-1/10. Copy of letter dated 19.11.2008 to the defendant for non-payment of service tax along with registry receipt is Exhibit PW-1/11 & Exhibit PW-1/12. Copy of letter dated 12.12.2008 to the defendant for non-payment of service tax along with registry receipt is Exhibit PW-1/13 & Exhibit PW-1/14. Copy of letter dated 21.1.2009 to the defendant for non-payment of rent and service tax along with registry receipt is Exhibit PW-1/15 & Exhibit PW-1/16. Copy of letter dated 16.2.2009 to the defendant for non-payment of rent and service tax and copy of counterfoil of challan for payment of service tax along with registry receipt is Exhibit PW-1/17, Exhibit PW-1/8 & Exhibit PW-1/19. Copy of letter dated 26.2.2009 to the defendant for non-payment of rent and service tax along with registry receipt is Exhibit PW-1/20 & Exhibit PW-1/21. Copy of letter dated 26.3.2009 to the defendant for non-payment of rent and service tax along with registry receipt is Exhibit PW-1/22 & Exhibit PW-1/23. Copy of letter dated 20.5.2009 to the defendant for non-payment of rent and service tax along with registry receipt is Exhibit PW-1/24 & Exhibit PW-1/25. Copy of letter dated 3.7.2009 to the defendant for non-payment of rent and service tax along with registry receipt is Exhibit PW-1/26 & Exhibit PW-1/27.
5Copy of legal notice dated 24/28 August 2009 along with registry receipt is Exhibit PW-1/28 and Exhibit PW-1/29. Copy of letter dated 23.12.2009 to the defendant for non-payment of rent and service tax along with registry receipt is Exhibit PW-1/30 & Exhibit PW-1/31.
10.On 20.10.2010, additional affidavit has been filed on behalf of plaintiff and tender statement of account, which is Exhibit PW-1/32.
11.Since the plaintiff has not paid rent and service tax and the said amount has been withheld by defendant without any justification and lawful excuse and from the unrebutted testimony on record, the plaintiff is entitled to a decree of Rs. 4,70,315/- along with interest, pendente lite and future @ 8% per annum. Suit decreed in terms thereof.
12.Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court.
(NEELAM SINGH) ADJ-02, SOUTH, SAKET COURT COMPLEX NEW DELHI 11.3.2011 6