Delhi District Court
Sushanta Mukherjee vs M/S Amalgamated Bean Coffee Trading Co. ... on 17 August, 2022
IN THE COURT OF ADDITIONAL DISTRICT
JUDGE02, SOUTH DISTRICT, SAKET COURTS
COMPLEX, SAKET, NEW DELHI.
Presiding Judge: Sh. Dinesh Kumar.
Civil Suit DJ No. 5849/2016
Filing No. 33911/2010
CNR No. DLST010000772010
In the matter of :
1. Sushanta Mukherjee, (Since Late Through its LR)
Mrs. Deepshika Sarkar,
D/o. Late Sushanta Mukherjee
R/o. Villa No. 09, Country Club,
Adjacent to church Bon Pasture,
Riviera 3, Abidjan, Ivory Coast
(Plaintiff No. 2 and 3 are already on record)
2. Mrs. Sapna Mukherjee
W/o. Late Sushanta Mukherjee
R/o. 28B, DDA Flats, Phase1,
Masjid Mode, New Delhi110048
3. Sh. Shubhendu Mukherjee
S/o. Late Sushanta Mukherjee
R/o. 28B, DDA Flats, Phase1.
Masjid Mode, New Delhi110048
..... Plaintiffs.
Versus
M/s Amalgamated Bean Coffee Trading Co. Ltd.
Having its registered office at
CS No. 5849/2016
Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 1 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022.
KM Road, Chikmagalur 577101, Karnatak.
Also at : Coffee Day Square, Vittal Mallya Road,
Bangalore560 001.
Also at : G32, Ground Floor, Vasant Square Mall
Community Centre, PocketV, SectorB
New Delhi.
.............Defendant
AND
CS NO. 5853/2016
CNR No. DLST010002382015
In the matter of :
M/s Amalgamated Bean Coffee Trading Co. Ltd.
Having its registered office at
KM Road, Chikmagalur 577101, Karnatak.
Also at :
Coffee Day Square, Vittal Mallya Road,
Bangalore560 001.
Also at :
G32, Ground Floor, Vasant Square Mall
Community Centre,
PocketV, SectorB New Delhi.
.......Counterclaimant
Vs
1. Sushanta Mukherjee, (Since Late Through its LR)
CS No. 5849/2016
Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 2 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022.
Mrs. Deepshika Sarkar,
D/o. Late Sushanta Mukherjee
R/o. Villa No. 09, Country Club,
Adjacent to church Bon Pasture,
Riviera 3, Abidjan, Ivory Coast
(Plaintiff No. 2 and 3 are already on record)
2. Mrs. Sapna Mukherjee
W/o. Late Sushanta Mukherjee
R/o. 28B, DDA Flats, Phase1,
Masjid Mode, New Delhi110048
3. Sh. Shubhendu Mukherjee
S/o. Late Sushanta Mukherjee
R/o. 28B, DDA Flats, Phase1.
Masjid Mode, New Delhi110048
..... Defendants.
Date of Institution of the Suit : 27.10.2010
Date of reserving the judgment : 27.07.2022
Date of pronouncement : 17.08.2022
SUIT FOR RECOVERY OF POSSESSION OF THE
PROPERTY AND RECOVERY OF ARREARS OF
RENT/MENSE PROFITS SUM OF RS.16,57,063/
(RUPEES SIXTEEN LACS FIFTY SEVEN THOUSAND
SIXTY THREE ONLY)
&
COUNTER CLAIM FOR RECOVERY OF MONEY AND
MANDATORY INJUNCTION.
CS No. 5849/2016
Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 3 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022.
JUDGMENT
1. Vide this common order I shall dispose of the Civil Suit filed by the plaintiffs for recovery of possession of suit property and recovery of arrears of rent/mense profits, i.e., sum of Rs.16,57,063/, and the counterclaim filed by the said defendant seeking a relief of mandatory injunction and recovery of Rs. 3,72,470 plus interest.
2. The brief facts of the case, as per the plaint filed by the plaintiffs, are as under: 2.1. The plaintiffs are the joint owners of the property bearing no. G32, Ground Floor, Vasant Square Mall situated at Community Center, PocketV, SectorB, Vasant Kunj, New Delhi admeasuring 805.37 sq ft of chargeable area or to say 483.22 sq ft approximately of covered area (hereinafter referred so as "Suit Property"). The defendant is a corporate body registered under the Companies Act, 1956.
2.2. The defendant had taken the suit property on license. The Deed of License dated 08.10.2008 was executed between the defendant and the builder of the shopping CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 4 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. Mall known as Vasant Square Mall. The defendant was granted a license of the suit property. The license was for a period of three years with a lockin period of 18 months. It was stipulated to commence with effect from 06.12.2008. The license fee payable by the licensee was Rs. 1,61,074/. The licensee was also required to pay interest free security of Rs. 4,83,222/ and also advance license fee for three months. The amount of advance license fee was required to be adjusted in equal monthly installments. It was also stipulated that the licensee could terminate the agreement after the expiry of lockin period by giving 90 days prior written notice.
2.3. The plaintiffs, by virtue of shop buyers agreement dated 31.12.2008 had purchased the suit property. Therefore, a deed of adherence dated 09.12.2008 was executed between the builder, the plaintiffs and the defendant. According to the said deed all the rights and liabilities of the builder, M/s. Sun City Projects Pvt. Ltd. were transferred in favour of the plaintiffs and the license on the same terms and conditions stood attorned in favour of the plaintiffs.
CS No. 5849/2016Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 5 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. 2.4. The defendant, however, by virtue of the notice dated 31.03.2010 addressed to M/s. Sun City Projects Pvt. Ltd terminated the license and indicated to vacate the possession of the premises w.e.f. 01.07.2010. Subsequently, a similar notice dated 03.05.2010 was addressed to the plaintiffs with similar contents and the plaintiffs were notified that the same might be treated as a notice to vacate the premises on the same day on behalf of the defendant. The defendant also asked for refund of amount of Rs. 6,71,171/ (sic).
2.5. The plaintiffs further inquired from the defendant whether there was any possibility on the part of the defendant to continue business beyond 01.07.2010 since the vacation of the premises by the defendant in such a abrupt manner would have been a cause of enormous financial strain on the plaintiffs.
2.6. The plaintiff no. 1 simultaneously addressed a letter dated 23.05.2010 to the builder M/s. Sun City Projects Pvt. Ltd. apprising the said builder about the financial stress that the plaintiffs would be put to in the event of the defendant vacating and the plaintiffs consequently being CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 6 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. deprived of a consistent source of liquidity in the form of license fee to be derived from the suit property. 2.7. The notice of termination issued by the defendant was faulty and in breach of the terms of contract. Since the lock in period of 18 months had not expired, the defendant could not have even given such notice of vacation prior to expiry of 30.05.2010. The notice issued by the defendant firstly on 31.03.2010 and thereafter on 03.05.2010 was clearly violative of terms of contract having been given prior to expiry of the lock in period. The license stipulates a clear three months notice after the expiry of lock in period.
2.8. Subsequently, the plaintiffs noted that the defendant could not have given such notice of vacation prior to expiry of the lockinperiod. The plaintiffs had intimated the defendant that the defendant was liable to pay to the plaintiffs the license fee till the expiry of 30.08.2010. However, the defendant, on the contrary has stopped payment of license fee ever since 01.04.2010. As such the defendant is in arrears of payment of license fee and also liable to pay mesne profits at twice the amount of the CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 7 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. agreed license fee on the expiry of revocation of license. As such the defendant is liable to pay agreed license fee of Rs.1,61,074/ for the months April, May and June, 2010. Thereafter, for the months July to October, 2010 the defendant is liable to pay twice the amount of license fee as agreed upon, in view of the terms of the license deed. The total amount on this account that the defendant is liable to pay is Rs. 15,83,909/.
2.9. The terms of license deed stipulated that the advance license fee for three months that had been paid by the defendant was required to be adjusted in the initial 18 months and against the said amount of Rs. 4,83,222/, an amount of Rs. 2,95,317/ had been adjusted. The plaintiffs are left with the balance of Rs.1,87,905/. In the calculation of the amount payable by the defendant, the said balance amount with the plaintiffs has been adjusted in calculating the total amount. The defendant is also liable to pay penal interest @ 22% per annum for the delay in payment of the monthly license fee to the plaintiffs.
2.10. The defendant has refused to make the payment.
CS No. 5849/2016Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 8 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. Further, vide notice dated 03.05.2010 issued by the defendant, there is deemed termination/revocation of the license w.e.f. 01.07.2010. Therefore, the defendant is liable to pay twice the amount of license fee after the period 01.07.2010 till the defendant hands over the vacant and peaceful possession of the premises to the plaintiffs. 2.11. Further, the builder Suncity Project Pvt. Ltd. has raised a bill against the plaintiff to deposit an amount of Rs. 42,800/ from 01.09.2010 alongwith interest i.e. total amount of Rs. 64,842/. The property was in possession of the defendant and the defendant had stopped paying even maintenance charges.
2.12. Hence, the present suit was filed by the plaintiffs with the following prayers:
"(a)Pass a decree of recovery of possession of the property bearing no. G32, Ground Floor, Vasant Square Mall Community Centre, Pocket V, Sector B, New Delhi at measuring 805.37 sq meters(sic) chargeable area to say 483.32 sq ft. approx., in favour of the plaintiffs and against the defendants".
"(b)Pass a decree of recovery of Rs.16,57,063/ in favour of the plaintiffs and CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 9 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. the defendants"
(c) Pass a decree in favour of the plaintiff and against the defendant by way of directing to the defendant to pay Rs.42,800/ per monthly as maintenance charges to the builder Suncity Project Pvt. Ltd., alongwith interest"
"(d) Pass any other and further order as this Hon'ble Court may deem fit, just and proper in the present facts and circumstances of the case."
3. The summons of the suit were issued to the defendant. The defendant appeared and filed its Written Statement. The defendant also filed a Counter Claim. The defendant has admitted that the plaintiffs were the owner of the suit property and that the premises was taken on leave and license. It has also admitted that a leave and license deed was also executed. It has also admitted the rate of license fee, the security amount and the advance license fee for three months. However, the defendant has taken the following objections:
3.1. The plaint does not disclose any cause of action against the defendant as the license deed on which the plaintiffs have relied upon is an unregistered document and therefore, it can not be considered in evidence as per CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 10 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. law.
3.2. The plaintiffs had refused to take the possession of the premises in question despite repeated letters and communication by the defendant to take the possession of the property. The defendant was not allowed by the plaintiffs to remove its perishable goods and other office equipment from the premises which caused substantial pecuniary loss to the defendant.
3.3. The defendant had asked the plaintiffs to refund the security amount as per the agreement which has not been returned by the plaintiffs.
3.4. Vide letter dated 24.05.2010, in response to the notice of the defendant to terminate the license, the plaintiffs had admitted their liability towards the defendant and asked the defendant to continue with the lease beyond 01st of July 2010. The plaintiffs did not make any demand from the defendant on account of breach of agreement. The plaintiffs have raised a false plea of breach of agreement once they came to know that they had to return the deposit of security to the defendant. 3.5. The plaintiffs have to refund the interest free security CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 11 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. deposit deposited by the defendant with the plaintiffs.
4. After raising the abovementioned objections, it has been prayed by the defendant that the suit may be dismissed.
5. The plaintiffs filed their replication to the Written Statement in which they have denied the contentions raised by the defendant and reiterated the facts stated in the plaint.
6. The defendant also filed a counterclaim. The defendant would state, inter alia, that the counter claimant/ had served a termination notice to M/s Suncity Builders Pvt. Ltd. and the plaintiffs dated 31.03.2010 and 03.05.2010 respectively intimating its intention to vacate the premises on 01.07.2010. The plaintiffs had replied to the said notice vide letter dated 24.05.2010 and 09.06.2010 stating that they would be obliged if the claimant could continue possession till end of July 2010 in order to give some financial relief to them. The Counter claimant replied to the said letter vide letter dated 22.06.2010 and told that it would pay the rent till end of July and shall vacate the premises on 31.07.2010. The CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 12 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. plaintiffs, however, started raising various false claims and filed the suit for recovery. They did not allow the claimant to vacate the premises. They did not allow the claimant to remove its equipment and goods from the premises including perishable goods which has caused substantial pecuniary loss to the claimant. The plaintiffs further owe to the claimant remaining advance license fee of Rs.72470/ after adjusting equal installments for a period of 18 months. Hence, the counterclaim was filed seeking a decree of mandatory injunction directing the defendants to take immediate possession of the suit property and a decree of recovery of Rs.3,72,470/ and interest.
7. The defendants (plaintiffs in the main suit) filed Written Statement to the Counterclaim. They denied all the allegations of not allowing the claimant to remove its goods from the suit property. They would also state that the claimant was not entitled to recover any amount from them. Hence, it was prayed that the Counterclaim might be dismissed.
8. During the proceedings of the suit, the defendant had handed over the possession of the suit property to the CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 13 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. plaintiffs on 27.04.2011. Therefore, the prayer of recovery of possession was considered to be satisfied.
9. During course of the proceedings, plaintiff no. 1 Sushanta Mukherjee had expired. Hence, vide order dated 20.04.2019 an application under order 22 Rule 3 CPC was allowed and LRs of plaintiff no. 1 which include plaintiffs no. 2 and 3 also were taken on record.
10. Vide order dated 01.12.2011, the following issues were framed in the main suit.
"1. Whether the plaintiffs are entitled to recover license fee from the defendant @ of Rs.1,61,000/ per month from April, 2010 to 30 th August, 2010 being the lock in period as per the Deed License dated 08.10.2008 ? OPP "2. Whether the plaintiffs are entitled to mesne profits from the defendant from September, 2010 to 27.04.2011, the date on which the possession was handed over to the plaintiffs, at twice the rate of license fee, as per the deed of license dated 08.10.2008 ? OPP "3. Whether the plaintiffs are entitled to recovery CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 14 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. of Rs.42,800/ per month as maintenance charges paid to the builder from April, 2010 to 27.04.2011? OPP.
"4. Whether the plaintiffs are entitled to claim interest on the amount if any, found due on license fee/mense profits?OPP
11. Vide the said order following issues were framed in the counter claim:
"1. Whether the defendant has suffered loss approximately 3 lacs because of degradation of perishable goods and because of the fact that he was not allowed by the plaintiffs to remove his capital, equipment and goods from the suit premises? OPD "2. Whether the defendant is entitled to recover the said Rs. 3 lacs from the plaintiffs because of the loss suffered by him? OPP "3. Whether the defendant is entitled to refund of advance license fee to the tune of Rs. 72470/ after adjustments against equal installments for a period of 18 months?OPD CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 15 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. "4. Whether the defendant is entitled to interest on the amount, if any, found due against the plaintiffs, and if so, at what rate? OPD "5. Relief."
12. The main suit was fixed for plaintiff's evidence. Plaintiff Mr. Sushanta Mukherjee was examined as PW1 before a local commissioner appointed by the Court. He was also cross examined before the Local Commissioner. After his examination and crossexamination, the Local Commissioner filed a report. The PW1 would tender his evidence by way of affidavit and reiterates the facts mentioned in the plaint. He would rely upon the following documents:
a) Copy of License Deed dated 08.10.2008 between M/s Suncity Project Pvt. Ltd. and Amalgamated Bean Coffee Trading Co. as Ex.PW1/1.
b) Copy of Deed of Adherence dated 09.12.2008 by and between M/s Suncity Project Pvt. Ltd. and Amalgamated Bean Cofee Trading Co. and Sh. Sushanta CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 16 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. Mukherjee, Subhendu Mukherjee and Mrs. Sapna Mukherjee as Ex. PW1/2.
c) Copy of Invoice dated 01.03.2009 as Ex.
PW1/3.
d) Copy of letter dated 01.03.2009, 06.03.2009 sent by plaintiff as Ex.PW1/4.
e) Copy of letter dated 31.03.2010 sent by defendant to M/s Suncity Project Pvt. Ltd. as Ex.PW1/5.
f) Copy of letter dated 03.05.2010 sent by the defendant to the plaintiff as Ex.PW1/6.
g) Copy of letter dated 23.05.2010 sent by plaintiff to Director Suncity as Ex.PW1/7.
h) Copy of letter dated 24.05.2010, 09.06.2010 sent by plaintiff to the defendant as Ex.PW1/8.
i) Copy of letter dated 22.06.2010 sent by Coffee Day as Ex.PW1/9.
j) Copy of email dated 01.08.2010,
02.08.2010, 04.08.2010, 03.08.2010,
06.08.2010, 23.08.2010, 02.09.2010,
CS No. 5849/2016
Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 17 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. 03.09.2010 as Ex.PW1/10.
k) Copy of notice dated 07.09.2010 sent by defendant to the deponent and plaintiff No. 2 & 3 as Ex.PW1/11.
l) Copy of Suncity invoice dated 01.09.2010 and 01.10.2010 alongwith letter dated 28.09.2010 as Ex.PW1/12.
13. The witness was cross examined by Ld. Counsel for the defendant. The plaintiffs did not examine any other witness in their evidence. Therefore the PE was closed.
14. The defendant did not lead any defence evidence despite opportunities. It also did not lead any evidence in support of its counter claim. Vide order dated 15.07.2019, the opportunity to lead evidence in support of the counter claim, and vide order dated 16.03.2020, the opportunity of the defendant to lead defence evidence was closed. The matters were fixed for final arguments.
15. Written arguments have been filed on behalf of the defendant/counterclaimant and on behalf of the plaintiffs.
16. It has been stated on behalf of the defendant/counter claimant that the license deed which is CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 18 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. an unregistered document cannot be relied upon in evidence. The plaintiffs had refused to take the possession of the suit property despite repeated letters and communication. The defendant had not violated any terms of the agreement. The plaintiffs had acknowledged that the lockinperiod had expired and they had acknowledged to refund the dues of the defendant after adjusting the rent payable by the defendant till July, 31. The defendant is not liable to pay the maintenance charges as it had stopped its operations from the premises w.e.f. 27.07.2010 and communicated the same to the plaintiffs. The defendant was stopped by the plaintiffs from removing its goods from the premises which has caused pecuniary losses to the defendant. The plaintiffs had withheld the NOC inspite of the fact that the defendant had cleared all the dues of the builder. Hence, it has been prayed that the suit may be dismissed and the counter claim may be decreed.
17. Ld. counsel for the plaintiffs, on the other hand, would argue that the plaintiffs have proved their case against the defendant/counter claimant. The lock in CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 19 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. period in terms of the agreement started from 06.12.2008 which expired on 06.06.2010. After the expiry of the lock in period, the defendant had to pay twice of the agreed license fee for the period during which it had remained in possession of the suit property. The defendant had not handed over the vacant possession of the suit property till 27.04.2011. There is no requirement of registration of a license deed. The defendant has not led any evidence to prove its allegations. It has been proved by the plaintiffs that the defendant did not make the payment of the license fee from 01.04.2010. As per the agreement the defendant is also liable to pay the twice of the license fee from October, 2010 till handing over of the possession. Hence, the plaintiffs are entitled to recover the amount as prayed in the suit and as mentioned in the issues. The counter claimant has not led any evidence. Hence, it is prayed that the suit may be decreed in favour of the plaintiffs and that the counter claim may be dismissed.
18. I have heard the submissions and gone through the record including the written submissions filed by the parties. First I shall decide the issues in the main suit. My CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 20 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. issuewise findings are discussed hereinafter.
19. Issue no. 1 and 2 are taken together as they require common discussion. The issues read as under:
"ISSUE NO. 1: Whether the plaintiffs are entitled to recover license fee from the defendant @ of Rs.1,61,000/ per month from April, 2010 to 30 th August, 2010 being the lock in period as per the Deed of License dated 08.10.2008 ?OPP "Issue no. 2. Whether the plaintiffs are entitled to mesne profits from the defendant from September, 2010 to 27.04.2011, the date on which the possession was handed over to the plaintiffs, at twice the rate of license fee, as per the deed of license dated 08.10.2008 ? OPP"
20. The onus to prove both the issues no. 1 and 2 was on the plaintiffs. The plaintiffs have examined only one witness as abovementioned in the evidence to prove their case. The witness in his affidavit of the evidence has reiterated the facts mentioned in the plaint.
21. Perusal of the record would show that the defendant has not disputed that the plaintiffs are the owner of the suit property i.e. property bearing no. G32, Ground Floor, Vasant Square Mall, situated at Community CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 21 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. Centre, Pocket 5, Sector B, Vasant Kunj, New Delhi. The defendant has also admitted that the deed of 'leave and license' was executed on 08.10.2008 in relation to the said property in favour of the defendant. It is also an admitted fact that the license fee payable by the defendant was Rs.1,61,074/ per month. It is also an admitted fact that the defendant had paid Rs.4,83,222/as advance license fee for three months which was to be adjusted in equal monthly installment. It has also been proved that there was a lockinperiod of 18 months mentioned in the license deed.
22. One of the case argued on behalf of the defendant is that the plaintiffs had accepted the notice of the vacation of the premises and thus, they waived the condition of lockin period of 18 months. During the cross examination of PW1, he had admitted writing of the letter Ex.PW1/7 to the defendant. The said letter was written by the plaintiff after receiving of the notice from the defendant. The PW1 has also relied upon the letter Ex.PW1/A which was sent by the plaintiffs to the defendant on 24.05.2010. It has been argued that the CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 22 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. plaintiffs had waived off the lockin period as prescribed under the agreement.
23. The second important argument, which is also legal argument, is that 'the leave and license agreement' Mark A can not be considered in evidence as it was an unregistered document.
24. The law does not provide registration of a leave and license agreement. However, Section 17(1)(d) of the Registration Act provides for compulsory registration of leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent. It has been well established that there is a difference between a lease and 'leave and license' agreement. The term 'lease' is defined under Section 105 of the Transfer of Property Act, which is reproduced as under: "S.105. Lease defined A lease of immovable property is transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transfer CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 23 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. by the transferee, who accepts the transfer on such terms."
25. Section 52 of the Easement Act provides the definition of licence. The said provision reads as under: "Section 52. Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."
26. Further, Section 62 (C) of the Easement Act, 1882 provides that a licence is deemed to be revoked when it has been either granted for a limited period or acquired on condition that it shall become void on the performance or nonperformance of a specified Act, and the period expires, or the condition is fulfilled. It has also been established that mere use of the words 'licence' or 'licencee' would not be sufficient to hold that the instrument the deed Mark 'A' is a licence. Simply, using the word 'licence' will neither be regraded conclusive nor determinative. Hon'ble Supreme Court of India in Associated Hotels of CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 24 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. India Ltd. vs R. N. Kapoor 1959 AIR 1262 has discussed the difference between a lease and a 'leave & licence'. It has held as under:
"There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under S. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest, transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas S. 52, the Indian Easements Act defines a licence thus :
"Where one person grants to another, or to a definite number of other persons, a right to do or continue to do in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."
"Under the aforesaid section, if a document gives CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 25 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose'. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest n the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infalliable and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington (1), wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155:
"The result of all these cases is that, although a person who is let into exclusive possession is prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy."CS No. 5849/2016
Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 26 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022.
"The Court of Appeal again in Cobb v. Lane (2) considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p. 1201, Somervell.. L. J., stated :
"................ the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties."
"Denning, L. J., said much to the same effect at p. 1202:
"The question in all these cases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land ?"
"The following propositions may, therefore, be taken as wellestablished: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form ; (2) the real test is the intention of the partieswhether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 27 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. Judged by the said tests, it is not possible to hold that the document is one of licence. Certainly it does not confer only a bare personal privilege on the respondent to make use of the rooms. It puts him in exclusive possession of them, untrammelled by the control and free from the directions of the appellants. The covenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. The solitary circumstance that the rooms let out in the present case are situated in a building wherein a hotel is run cannot make any difference in the character of the holding. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the document writer hardly conceals the real intent...."
27. In the majority judgment of Hon'ble Justice K. Subbarao, J. it was observed that though document therein used the phraseology appropriate to a "license" but it is the substance of instrument that matters and not the CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 28 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. form for otherwise clever drafting can camouflage the real intention of the parties. In the case before the Hon'ble Supreme Court, two rooms were given to one R.N. Kapoor in a Hotel called "Imperial Hotel" under an agreement. Those Rooms were described as Ladies' and Gents' Cloak Rooms, where Sri Kapoor used to carry on his business as a hairdresser. Under a deed executed between the Hotel and Sri Kapoor, he secured possession and agreed to pay certain amount of fee/rent/charges. The question was whether it was an arrangement of a "License" or a "Lease". In these facts and circumstances and looking to the proposition as mentioned hereinabove, Hon'ble Justice K. Subbarao J. held that judged by the aforesaid tests, it cannot be held that the document executed between parties was that of a license. It did not confer a bare personal privilege on Sri Kapor to make use of the rooms. It puts him in exclusive possession, untrammelled by the control and free from the directions of Hotel officials.
28. Thus, it is settled position of law that to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form.
CS No. 5849/2016Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 29 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. It is the intention of the partieswhether they intended to create a lease or a license. If the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence.
29. I have gone through the agreement / 'leave and license deed' Mark A. After going through the document i.e. 'the leave and license deed', I am of the considered opinion that the premises was given on lease by the plaintiffs to the defendant even though they termed it as a license in the deed. The defendant was put in exclusive possession of the suit property. It has right to enjoy the suit property without any interruption from the plaintiffs. Hence, it was a lease and not license. I get strength from the judgment of the Hon'ble Allahabad High Court in Pantaloon Retail (India) Ltd. v. Chief Controlling Revenue Authority/Board of Revenue U.P., 2012 SCC OnLine All 4147. In the matter before the Hon'ble High Court the facts of the case were that the petitioner and M/s. Sahara India Commercial Corporation Ltd., had executed an instrument on 15072005 known as CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 30 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022.
"Memorandum of understanding" (MOU), where both the parties agreed that the petitioner will have a space about 9455.30 sq.ft. (Super area) in a commercial complex known as Saharaganj, Hazratganj, Lucknow on "licence basis" initially, for a period of three years and the said period shall also be renewable. The petitioner paid stamp duty of Rs. 100/ on the said instrument (MOU), by considering it as a deed of licence, but the stamp authorities considered the said instrument as a lease deed and demanded stamp duty of Rs.33,93,500/. The question before the Hon'ble High Court was whether it was a lease or license. While holding that it was a lease and not license, Hon'ble High Court has observed as under:
"31. Further, in the case of Pradeep Oil Corporation v. Municipal Corporation of Delhi reported in (2011) 5 SCC 270 : (AIR 2011 SC 1869) wherein it was observed that:
"We may also notice the undisputed fact that in the present case the parties have agreed that for the purpose of determination of the agreement three calendar months' notice had to CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 31 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. be given. Undoubtedly, such clause in the document in question has a significant role to play in the matter of construction of document Clearly if the parties to the agreement intended that by reason of such agreement merely a license would be created such a term could not have been inserted."
"32. In the instant case, the petitioner has paid stamp duty of Rs. 100/ on the said instrument (MOU), by considering it as a deed of licence. But fact remains that mere use of the words 'licence' or 'licencee' would not be sufficient to hold that the said instrument (MOU) is a licence. Simply, using the word licence will neither be regarded conclusive nor determinative.
"33. Moreover, if a contract is for the exclusive possession and profits of the land, it is a lease and not a licence, no matter in what nomenclature, the rent is to be paid. Further, in the said MOU, as per Clause 19, it has been specifically mentioned:
"Either or both parties may terminate this agreement any time after the date of opening of shop by serving written notice of six months to the other parties............"
"34. Moreover, it is well settled legal position that a licence can be revoked at any time at the pleasure of CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
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Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. the licensor. Thus, by merely stating that a transaction is a licence, not a lease, its nature cannot be changed.
"35. In view of above, the instrument in question (MOU) is a tenancy agreement, specially by looking upon the length of the period of nine years, the same will have to be treated as tenancy/lease agreement."
30. The facts of the present case are similar to the facts of the case before the Hon'ble Allahabad High Court. Hence, I hold that the document Mark A was a lease agreement.
31. Now, Mark A is an unregistered document. Section 17(1)(d) of the Registration Act provides for compulsory registration of leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent. Section 49 of the Act provides that a document purporting to be a lease and required to be registered under Section 107 will not be admissible in evidence if the same is not registered. Proviso to this Section, however, provides that an unregistered lease deed may be looked into as evidence of collateral facts. Hon'ble Supreme Court of India in K.B. Saha & Sons (P) Ltd. v. Development CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 33 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. Consultant Ltd., (2008) 8 SCC 564 : 2008 SCC OnLine SC 857 has discussed the effects of non registration of a lease deed exceeding one year. It has held as under:
"32. In Bajaj Auto Ltd. v. Behari Lal Kohli [(1989) 4 SCC 39 : AIR 1989 SC 1806] this Court observed that if a document is inadmissible for non registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sublet. It was also held in that decision that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose. Again this Court in Rai Chand Jain v. Chandra Kanta Khosla [(1991) 1 SCC 422 : AIR 1991 SC 744] reiterated the above and observed in para 10 as under : (SCC p. 429, para 10) "10. ... the lease deed, Ext. P1 dated 1951978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be considered for collateral purposes and as such the findings of the appellate authority to the effect that the said deed CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 34 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. cannot be used for collateral purposes, namely, to show that the purpose was to lease out the demised premises for residential purposes of the tenant only is not at all legally correct. It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In the instant case the purpose of the lease is evident from the deed itself which is as follows:'The lessor hereby demises House No. 382, Sector 30A, Chandigarh, to the lessee for residential purposes only'. This clearly evinces that the property in question was let out to the tenant for his residence only."
"33. In Rana Vidya Bhushan Singh v. Ratiram [(1969) 1 UJ 86 (SC)] the following has been laid down:
"A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th Edn., at p. 189:
"'The High Courts of Calcutta, Bombay, CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 35 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it.' "
"34 [Ed.: Para 34 corrected vide Official Corrigendum No. F.3/Ed.B.J./76/2008 dated 159 2008.] . From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:
"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
"2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. "3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
"4. A collateral transaction must be a transaction CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 36 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. "5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
32. In the present case also, the lease deed is for a period of more than one year as it provides lockinperiod of 18 months. It is also unregistered. Therefore, it is not admissible in evidence. Hence, the terms of the agreement mentioned therein can not be considered in evidence. Therefore, I hold that the lease in question was on month to month basis.
33. The PW1 in his evidence would depose that the defendant, by notice dated 31.03.2010 addressed to M/s. Suncity project Pvt. Ltd. had indicated to vacate the possession of the premises w.e.f. 01.07.2010. Subsequently, a similar notice dated 03.05.2010 was also addressed to the plaintiff with similar contents. The plaintiffs were notified vide the said notice that the notice CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 37 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. be treated as a notice to vacate the premises on 01.07.2010 on behalf of the defendant.
34. Be that as it may, The relationship of landlord and tenant and the monthly rent have been admitted by the defendant. It is also a fact proved on record that the defendant was in possession of the suit property till 27.04.2011. The defendant has failed to prove that it was ready and willing to hand over the possession of the suit property to the plaintiffs as claimed by it. It has also failed to prove that it had paid the rent to the plaintiffs for the period starting from April 2010. Interestingly, the plaintiffs never terminated the lease of the defendant. Therefore, in the absence of termination of its lease by the plaintiffs, the defendant had remained a tenant of the plaintiffs. Therefore, the plaintiffs can not claim mesne profits from the defendant for the period w.e.f. September, 2010 to 27.04.2011, the date on which the possession was handed over to the plaintiffs, as claimed by them.
35. Perusal of record would show that the plaintiffs have stated in their plaint that they had received an interest free security deposit of Rs.4,83,222/ from the CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 38 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. defendant. The said amount is equal to three months rent of the suit premises. The said amount is required to be adjusted in the arrears of the rent to the paid by the defendant. Further, it has been admitted by the plaintiffs that they have received an amount of Rs. 4,83,222/ i.e. equal to three months rent from the defendant which was to be adjusted in the monthly rent equally for 18 months. In para no. 13 of the plaint the plaintiffs have admitted that they were having Rs.1,87,905/ as balance from the three months advance paid by the defendant after adjusting amount of Rs.2,95,317/ out of the total amount of Rs.4,83,222/. Therefore, the said balance amount of Rs.1,87,905/ is required to be adjusted in the balance payment to be recovered from the defendant. Considering the abovementioned facts and circumstances, I hold that the rent of April 2010July 2010 stands adjusted and paid by the defendant to the plaintiffs for the abovementioned reason. After adjusting the rent for the month of July 2010 @ 1,61,074/ the balance remains Rs.26,831/ which is required to be adjusted in the rent of August 2010. After adjusting the said amount the balance rent of August 2010 CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 39 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. comes to Rs.1,34,243/.
36. In the light of the discussion hereinabove, I hold that the plaintiffs are entitled to recovery of the arrears of the rent of Rs.1,34,243/ for the month of August 2010. They are also entitled to recover the rent from September 2010 and October 2010 @ Rs.1,61,074/ per month. This amount, including the balance rent of August 2010, comes to Rs.4,56,391/. The plaintiffs are also entitled to the rent for the period of November 2010 to 27.04.2011. It is held that the plaintiffs shall be entitled to the recovery of entire rent for the month of April 2011 as the defendant was in possession of the suit property till 27.04.2011. This amount comes to Rs.9,66,444/. The issues no. 1 and 2 are decided accordingly in favour of the plaintiffs.
37. Issue no.3. The issue reads as under:
"Whether the plaintiffs are entitled to recovery of Rs. 42,800/ per month as maintenance charges paid to the builder from April, 2010 to 27.04.2011? OPP"
38. The burden to prove this issue was on the plaintiffs. It has been proved by the plaintiffs that the CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 40 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. defendant was in possession of the suit property till 27.04.2011. Therefore, as per the agreement, it is the defendant who is required to pay the maintenance charges for the said period. Hence, I hold that the plaintiffs are entitled to recovery of Rs.3,42,400/ as arrears of maintenance charges @ Rs.42,800/ per month paid to the builder from September 2010 to 27.04.2011. The issue is therefore, decided in favour of the plaintiffs.
39. Issue no.4. The issue reads as under:
"Whether the plaintiffs are entitled to claim interest on the amount if any, found due on license fee/mense profits? OPP"
40. No evidence has been brought on record to prove that there was any agreed rate of interest. As mentioned hereinabove, the lease deed being unregistered can not be considered as evidence to find whether there was any agreed rate of interest to be paid. It is settled legal position that the rate of interest so far the presuit period is concerned can be awarded in terms of the agreement between the parties or where the rate of interest itself is stipulated in any statutory provision. In the absence of any CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 41 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. such agreement or existence of statutory provision, the rate of interest can also be awarded by reason of usage of trade having the force of law or on equitable considerations. The pre suit interest is essentially governed by section 3 of the Interest Act,1978. Hon'ble Supreme Court of India in the case titled State of Rajasthan vs. Ferro Concrete Construction Pvt. Ltd. (2009)12 SCC1 has discussed the law relating to pre suit interest. It has been held:
"34. The position regarding award of interest after the Interest Act, 1978 came into force, can be stated thus: (a) where a provision has been made in any contract, for interest on any debt or damages, interest shall be paid in accordance with the such contract. (b) where payment of interest on any debt or damages is expressly barred by the contract, no interest shall be awarded. (c) where there is no express bar in the contract and where there is also no provision for payment of interest then the principles of Section 3 of Interest Act will apply in regard to the presuit or pre reference period and consequently interest will be payable: (i) where the proceedings relate to a debt (ascertained sum) payable by virtue of a written instrument at a CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 42 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. certain time, then from the date when the debt is payable to the date of institution of the proceedings;
(ii) where the proceedings is for recovery of damages or for recovery of a debt which is not payable at a certain time, then from the date mentioned in a written notice given by the person making a claim to the person liable for the claim that interest will be claimed, to date of institution of proceedings. (d) payment of interest pendente lite (date of institution of proceedings to date of decree) and future interest (from the date of decree to date of payment) shall not be governed by the provisions of Interest Act, 1978 but by the provisions of Section 34 of Code of Civil Procedure 1908 or the provisions of the law governing Arbitration as the case may be. "35. Therefore, even in regard to claims for damages, interest can be awarded for a prior to the date of ascertainment or quantification thereof if (a) the contract specifically provides for such payment from the date provided in the contract; or (b) a written demand had been made for payment of interest on the amount claimed as damages before initiation of action, from the date mentioned in the notice of demand (that is from the date of demand or any future date mentioned therein). In regard to claims for ascertained sums due, interest will be due CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 43 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. from the date when they became due."
41. In the present case, even no usage of trade has been proved in relation to rate of interest to be awarded for the pre suit period. In the facts and circumstances of the case, I hold that the plaintiffs are entitled to interest @ 6% p.a. on the amount of each months rent, on the day the amount becomes due i.e. the first day of each month, starting from May 2010 till 27.10.2010, ie. the date of filing of the suit.
42. So far as the determination of pendent lite interest and the future interest from the date of passing of the decree till realization of the amount is concerned, the parameters laid down under Section 34 of the Code of Civil Procedure are attracted. Section 34 provides that so far the amount of interest from the date of decree till realization is concerned, the same is within the discretion of the Court. Such a discretion has to be exercised by the Court on sound judicial principles and not arbitrarily.
43. In the present case, in the facts and circumstances of the case, I hold that the plaintiffs are entitled to interest @ 6% p.a. on the principle amount of Rs.9,66,444/ from CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 44 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. the date of filing of the suit till the preparation of decree. They are also entitled to interest @ 6% p.a. on the amount of the monthly rent @ Rs.1,61,074/ for the period starting from November 2010 till 27.04.2011, which became due after filing of the suit, from the date the amount became due i.e. the first day of each month, till preparation of decree. They are also entitled to interest @ 6% p.a. on arrears of maintenance charges from the date the amount became due i.e. the first day of each month starting from September 2010, till the preparation of decree. The issue is accordingly decided in favour of the plaintiffs.
Counter Claim
44. Now I shall decide the issues framed in the Counter claim. The issued framed in the counter claim are as under:
"1. Whether the defendant has suffered loss approximately 3 lacs because of degradation of perishable goods and because of the fact that he was not allowed by the plaintiffs to remove his capital, equipment and goods from the suit premises? OPD CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 45 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. "2. Whether the defendant is entitled to recover the said Rs. 3 lacs from the plaintiffs because of the loss suffered by him? OPP "3. Whether the defendant is entitled to refund of advance license fee to the tune of Rs. 72470/ after adjustments against equal installments for a period of 18 months?OPD "4. Whether the defendant is entitled to interest on the amount, if any, found due against the plaintiffs, and if so, at what rate? OPD "5. Relief."
45. The burden to prove all the four issues was on the counterclaimant/defendant. The counterclaimant did not lead any evidence in support of its contentions. In the absence of any evidence, I hold that the counterclaimant has failed to prove that it had suffered any loss because of degradation of perishable goods and because of the fact that it was not allowed by the plaintiffs to remove its capital, equipment and goods from the suit premises. The counterclaimant has failed to prove that it had not been allowed by the plaintiff to remove its goods and that it was ready and willing to vacate the suit premises prior to the date on which it had vacated the suit premises. In the absence of any evidence led by the counterclaimant, I CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 46 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. hold that the counterclaimant also failed to prove that it had any perishable goods lying in the suit premises as claimed by it. Therefore, it is not entitled to recover any amount from the plaintiffs. However, it has been admitted by the plaintiffs that they were having Rs.1,87,905/ balance from the three months advance paid by the defendant after adjusting amount of Rs.2,95,317/ out of the total amount of Rs.4,83,222/. Therefore, the said balance amount of Rs.1,87,905/ is required to be adjusted in the balance payment to be recovered from the counter claimant/defendant. While deciding the issue no.1 and 2 of the main suit the said amount has already been adjusted. Hence, the counterclaimant is not entitled to recover any amount from the plaintiffs. It is therefore not entitled to any interest for the said reason. All the issues of the counter claim are accordingly decided against the Counterclaimant.
46. RELIEF: As a sequel to the above findings, the suit is decreed and the counterclaim is dismissed. The plaintiffs are entitled to recovery of the arrears of the rent of Rs.1,34,243/ for the month of August 2010. They are CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 47 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. also entitled to recover the rent from September 2010 and October 2010 @ Rs.1,61,074/ per month. This amount, including the balance rent of August 2010, comes to Rs.4,56,391/. The plaintiffs are also entitled to the rent for the period of November 2010 to 27.04.2011 @ Rs.1,61,074/. It is held that the plaintiffs shall be entitled to the recovery of entire rent for the month of April 2011 as the defendant was in possession of the suit property till 27.04.2011. The plaintiffs are also entitled to recover the maintenance charges @ Rs.42,800/ per month w.e.f. September 2010 to 27.04.2011. The plaintiffs are also entitled to interest @ 6% p.a. on the amount of each months rent, on the day the amount becomes due i.e. the first day of each month, starting from August 2010 till 27.10.2010, i.e. the date of filing of the suit. The plaintiffs are entitled to interest @ 6% p.a. on the principle amount of Rs.4,56,391/ from the date of filing of the suit till the preparation of decree. They are also entitled to interest @ 6% p.a. on the amount of the monthly rent @ Rs.1,61,074/ for the period starting from November 2010 to April 2011, which became due after filing of the suit, CS No. 5849/2016 Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.
& CS No. 5853/2016M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.
Page 48 of 49Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022. from the date the amount became due i.e. the first day of each month, till preparation of decree. They are also entitled to interest @ 6% p.a. on arrears of maintenance charges from the date the amount became due i.e. the first day of each month starting from September 2010, till the preparation of decree. The plaintiffs are also entitled to interest on the principle sum including the arrears of the rent and maintenance charges @ 6% per annum from the date of decree till realization of the amount. The plaintiffs are also entitled to the cost of the suit.
47. Decree sheet be prepared accordingly after receiving the deficient Court fee, if any.
48. Two copies of this judgment have been prepared and signed to be kept each copy in each file separately.
Pronounced in the open Court on this 17th Day of August 2022. Digitally signed by DINESH DINESH KUMAR KUMAR Date:
2022.08.17 16:34:35 +0530 (DINESH KUMAR) ADDL. DISTRICT JUDGE02 SOUTH, SAKET COURTS, NEW DELHI.CS No. 5849/2016
Sushanta Mukherjeet & Ors. Vs. M/s Amalgamated Bean Coffee Trading Co. Ltd.& CS No. 5853/2016
M/s Amalgamated Bean Coffee Trading Co. Ltd. Vs. Sushanta Mukherjeet & Ors.Page 49 of 49
Dinesh Kumar/ADJ02/South/Saket/ND/17.08.2022.