Delhi District Court
Kartar Singh Kochhar vs Icici Bank on 25 January, 2024
IN THE COURT OF MS. ANURADHA SHUKLA
BHARDWAJ: DISTRICT JUDGE (COMMERCIAL
COURT)-02, SOUTH DISTT., SAKET, NEW DELHI
CS (Comm.) No.212/20
1. KARTAR SINGH KOCHHAR
S/o. Late Sucha Singh
R/o. D-15, Shanti Kunj,
Church Road, Vasant Kunj,
New Delhi-70.
....PLAINTIFF
Versus
1. ICICI BANK LIMITED
Office at:
ICICI BANK TOWERS, SOUTH TOWER,
Bandra Kurla Complex Mumbai-400051.
Sandeep Bakhshi, CEO & Managing Director
Also At:
ICICI BANK LTD.
SDA Branch, C-18 SDA Market,
New Delhi-110016.
Madhuri Garg, Deputy Branch Manager,
SDA Branch, New Delhi.
...DEFENDANT
Date of filing of the suit : 05.08.2020
Date of reserving judgment : 25.01.2024
Date of judgment : 25.01.2024
JUDGMENT
CS(COMM) 212/20 Page 1 of 34 Kartar Singh Kochhar Vs. ICICI Bank
1. The plaintiff has filed present suit for arrears of rent alongwith interest @ 12 % per annum pendent lite and future.
2. It is the case of the plaintiff that he is owner of commercial plot no. C-18, situated in Shopping Center No.1, Bhim Nagar (Safdarjung Development Scheme) Delhi-110016 (hereinafter to be referred as the property). Defendant, which is a bank had approached the plaintiff to take 1800 sq. ft. of total area consisting of 1132 sq.ft. of basement and 668 sq. ft. of ground floor. Defendant after satisfying itself with verification of documents, building plan and inspection of leased property agreed to take on lease the property. In this regard lease deed was executed on 10.10.2012 for a period of 9 years i.e up to 09.10.2021. The rates of lease rent were agreed for first three years as Rs.3,67,400/- for ground floor @ Rs.550 per sq. feet and Rs.3,11,300/- @ Rs. 275 per sq. feet totaling amounting to Rs.6,78,700/-. The rent for subsequent three years were Rs.7,80,505/- and Rs.8,97,581/-. The lease was terminable by giving a two months' notice in writing in advance to the plaintiff by defendant (section 8 lease deed page 15).
3. Defendant issued a letter dt. 15.12.2017 claiming reduction in rent on account of fall in market rates of properties in nearby areas which was replied in negative by the plaintiff. On 25.07.2018, plaintiff received a letter from defendant enquiring about the building plan of leased property.
CS(COMM) 212/20 Page 2 of 34 Kartar Singh Kochhar Vs. ICICI Bank
4. On 26.12.2018, South Delhi Municipal Corporation, South Zone, Green Park, New Delhi served a notice u/s. 345A of Delhi Municipal Corporation Act to all the occupants of SDA Market, including defendant to enquire whether plan was approved or not for alleged misuse of basement floor in the entire market. On 07.01.2019 the notice of SDMC was replied by defendant, who requested for personal hearing. Defendant subsequently requested plaintiff to provide additional space for lockers at ground floor, which was provided by the plaintiff. This was additional space of 302 sq. feet at the ground floor. It is stated that defendant had promised that lease deed in respect of additional space will be executed, which however, was not executed. It is stated that plaintiff incurred expenses of Rs.14,59,644.24 on alteration to make additional space usable by the bank.
5. It is stated that plaintiff is legally entitled for rent/damages/mesne profit for additional space of 302 sq. feet, which has not been paid by defendant. It is stated that defendant was trying to surrender the basement floor and seeking modification in lease deed to create pressure upon plaintiff for reducing rent. It is stated the defendant stopped paying rent for the leased property w.e.f 01.05.2019 to abandon rent of 1132 sq. feet of basement floor. It is stated that plaintiff served notice dt. 24.08.2019 upon defendant u/s. 8-C of lease deed dt. 10.10.2012 which was replied by defendant vide letter dt. 04.09.2019.
CS(COMM) 212/20 Page 3 of 34 Kartar Singh Kochhar Vs. ICICI Bank
6. Plaintiff wrote yet another letter dt. 23.09.2019. It is stated that lease deed could not be surrendered partly by the defendant. It is stated that defendant occupied 302 sq. feet area on the ground floor, for which no lease deed was executed and was thus in unauthorized occupation of that portion. On 07.10.2019, plaintiff sent a demand notice for Rs.98,94,870/- under Insolvency and Bankruptcy Code, 2016 to the defendant, which was replied on 22.10.2019 whereafter, defendant paid part rent of Rs.17,98,752/- stating that it was approved rent. The defendant was not entitled to revise the rent unilaterally.
7. It is stated that as per building plan the property can be used for banking activities and plaintiff made available all the documents and building plan, which were duly verified by the defendant. Notice u/s. 345A of Delhi Municipal Corporation Act was a routine process and the entire market was served with such notices. In para 51 the plaintiff has given calculations of dues to be recovered.
8. Defendant was served with summons, whereafter written statement was filed. Defendant has taken preliminary objection stating that the bank has paid an amount of Rs.22,57,914/- in excess to the plaintiff, the calculation of which has been filed. Defendant was assured by the plaintiff that entire property was approved commercial space and basement was also permissible to be used, however, notice dt. 26.12.2018 was served upon defendant on 03.01.2019, which was conveyed to the CS(COMM) 212/20 Page 4 of 34 Kartar Singh Kochhar Vs. ICICI Bank plaintiff on 04.01.2019. Plaintiff assured that the notice might have been issued by mistake and oversight and he did not come to the branch. The defendant sent an e-mail to the plaintiff that it was immediately surrendering the possession of 1132 sq.ft. of basement in view of notice dt. 26.12.2018. Plaintiff did not reply the notice nor any legal proceedings were initiated by the plaintiff as he was aware that he will not be able to succeed against the notice received from SDMC. It is stated that defendant was willing to vacate the premises immediately, however, plaintiff requested that he was willing to give additional space of 302 sq. feet on the ground floor and requested the bank to shift the lockers from basement to the ground floor. It is stated that since the shifting of locker and interiors of area required costing of Rs.14 Lakhs and defendant did not have approval to incur the same, plaintiff himself offered to bear the expenses and subsequently all expenses were borne by the plaintiff.
9. It is stated that lockers were shifted on 04.01.2019 itself and the entire project was completed in March, 2019. It is stated that defendant bank paid rent in terms of agreement till April, 2019 and after that it started requesting the plaintiff to issue a letter for offer of intent with respect to area of 302 sq. feet and take back the possession of 1132 sq. feet area of basement. On 29.08.2019, defendant bank received notice from SDMC asking it to remove generator which was conveyed to the plaintiff but plaintiff did not resolve the problem and CS(COMM) 212/20 Page 5 of 34 Kartar Singh Kochhar Vs. ICICI Bank therefore, bank was working without generator. It is stated that there was no difference in calculation till December, 2018 and the calculation of amount paid vs. amount dues shows the entire amount up till 2019 for the area of 668 sq. feet of ground floor and 1132 sq. feet of basement, the amount stands paid. It is stated that defendant is in occupancy of 668 sq. feet of area and it has not paid any rent for 302 sq.ft. alternate space offered by plaintiff as no offer letter was issued by plaintiff because of which no lease deed could be drawn. It is stated that plaintiff should be directed to execute lease deed in respect of 668 sq.ft. area and additional space of 302 sq.ft. and defendant shall pay whatever rent is made out. Defendant has denied the contents of plaint on merits.
10. During pendency of suit an application u/o 39 rule 10 CPC was filed by plaintiff in which it claimed that it was entitled for Rs.1,88,20,000.61. Defendant claimed that it had paid Rs.78,82,917.39 to the plaintiff till 01.05.2019 and a sum of Rs.40,72,200/- was deposited by the defendant bank with plaintiff. Defendant as such is entitled for refund of Rs.13,60,508/-. Stating that the issue involved is triable for which evidence is to be led, Ld. Predecessor had dismissed application u/o 39 rule 10 CPC and framed the issues. The plaintiff filed yet another application U/section 108 (m) of Transfer of Property Act, wherein it was stated that the defendant had terminated the lease and has stated that it will vacate the premises on 30.09-2021. The defendant be directed to restore the CS(COMM) 212/20 Page 6 of 34 Kartar Singh Kochhar Vs. ICICI Bank property as it was let out to the defendant. The application wasnot decided by the court and an issue was framed on it.
11. On the pleadings of the parties following issues were framed on 06.01.2022.
1. Whether plaintiff is entitled to arrears of rent amounting to Rs.1,08,89,099/- from the defendant for the period w.e.f. 01.05.2019 to 01.07.2020 in terms of lease deed dated 10.10.2012? OPP
2. Whether plaintiff is also entitled to rent for the period after 01.07.2020 till handing over of the keys/possession of the vacant premises by the defendant to the plaintiff? OPP
3. Whether plaintiff is entitled to interest from the defendant? If so, whether at the claimed rate of 12% per annum from the defendant? OPP
4. Relief.
ADDITIONAL ISSUE WITH RESPECT TO THE APPLICATION "Whether defendant has caused any damage to the tenanted premises? If so, whether defendant is required to restore the premises to its original position to the plaintiff as claimed by the plaintiff in its application dated 21.09.2021, U/s 108(m) of the Transfer of Properties Act, 1882? OPP"
12. Plaintiff filed his evidence by way of affidavit, wherein he exhibited the building plan duly approved by CS(COMM) 212/20 Page 7 of 34 Kartar Singh Kochhar Vs. ICICI Bank DDA as Ex.PW1/A. Letter issued by defendant company, whereby it agreed to take 1800 sq. ft. area comprising of 800 sq. ft. at ground floor and 1000 sq ft. basement @ 6,50,000/- with 15 % increase after every 3 months, has been exhibited by him as Ex.PW1/B. He claimed that after negotiation it was agreed that 668 sq. feet of ground floor area shall be given to defendant @ Rs.550 per sq. ft. amounting to Rs.3,67,400/- per month and 1132 sq. feet of basement @ Rs.275/- per sq. feet amounting to Rs.3,11,300/-. Total rent was agreed to be Rs.6,78,700/-. In this regard he has relied upon copy of letters Ex.PW1/C and Ex.PW1/D. [In Ex.PW1/C which is addressed to Asstt. Manager Infrastructure group ICICI Bank the rates have been quoted as claimed, however, in the e-mail Ex.PW1/D no such rates have been mentioned]. PW-1/E is a letter issued by ICICI Bank, whereby it agreed to the rent @ Rs.6,78,700/- per sq. ft. instead of original offer of Rs.6,50,000/- per sq. ft. The document, however, does not mention bifurcation of rent. The parties had entered into lease deed, which is Ex.PW1/F. The site plan of leased property is Ex.PW1/G. Plaintiff has exhibited tax invoices of rent from 01.05.2019 to 30.06.2020 regularly sent to the plaintiff. Office copies of which alongwith postal receipts are Ex.PW1/K & L. The scanned copies of 2019-2020 sent to the defendant through e-mail are Ex.PW1/M. The tax invoices for the months of May and June, 2020 through e-mail are Ex.PW1/N. The plaintiff has exhibited the notice dt. 24.08.2019 which was sent to defendant after defendant stopped paying the rent as Ex.PW1/O. The letter CS(COMM) 212/20 Page 8 of 34 Kartar Singh Kochhar Vs. ICICI Bank received by the plaintiff in reply to the aforesaid notice is Ex.PW1/P. Yet another letter sent by plaintiff for release of rent on 23.09.2019 is Ex.PW/Q. Plaintiff had sent a demand notice to the defendant demanding rent as well as usage charges for additional space of 302 sq. ft. The notice is Ex.PW1/R. Reply-cum-notice sent by defendant asking plaintiff to amend the lease and paying a rent of Rs.17,98,752/- after deducting tax of Rs.1,99,862/- is Ex.PW1/S. Plaintiff had sent reply of the letter issued by defendant on 18.11.2019 whereby it demanded an amount of Rs.56,15,263/, the letter is Ex.PW1/T. Defendant on 07.07.2021 had sent notice for termination of lease agreement and communicated its wish to surrender the possession of entire leased property on 30.09.2021 further requesting to adjust the retention money of Rs.40,72,200/- towards outstanding rent. Letter is Ex.PW1/V.
13. It is stated that defendant had not given possession of leased premises to the plaintiff on 30.09.2021. It is stated that the joint inspection of premises could not take place as there was no electricity. The defendant left the premises without handing over the possession to plaintiff. Defendant deposited the key of premises with the court instead of giving it to the plaintiff. After inspection of premises by local commissioner in presence of both the parties the plaintiff took possession of the premises after taking the keys from the court.
CS(COMM) 212/20 Page 9 of 34 Kartar Singh Kochhar Vs. ICICI Bank
14. In his cross-examination the witness (PW-1) denied the suggestion that he had given assurance (to the defendant) that the leased property had all necessary permission for commercial use and that he had given assurance to plaintiff that leased property was approved for banking activities. Plaintiff when he denies this suggestion indirectly admits that he was unsure of usability of property for banking activities at the time when he entered into the lease with defendant and therefore, he did not give any such assurances to the defendant. Plaintiff was shown clause 7 (ii) (b) of the agreement which reads as under:-
Clause 7 (ii) (b):- The demised premises has commercial use permission and the same can be lawfully used for all Banking activities without any limitation and restriction on use by the lessee. In the event of there being any misrepresentation of any declarations or covenants on the part of the lessor with regard to the said permission and for whatsoever reasons if the Lessee's right to peaceful occupation of the demised premises for providing banking facilities to its customers is obstructed/denied or the Lessee is put to any loss, financial or otherwise, the Lessor shall indemnify and keep indemnified the Lessee on account of such damages, costs, charges etc. incurred by the Lessee on the above account.
15. Defendant in support of its case has examined DW-1 Sh. Mohit Bariya. In his evidence he has stated that the property was taken on lease on assurance of plaintiff that it CS(COMM) 212/20 Page 10 of 34 Kartar Singh Kochhar Vs. ICICI Bank was approved commercial space and basement was also permissible to be used for banking activities. He further says that on 03.01.2019 a notice dt. 26.12.2018 was served upon defendant bank and on 04.01.2019 plaintiff was updated and formal mail was sent to the plaintiff on the mail IDs provided by plaintiff informing him about sealing notice. Plaintiff assured that notice might have been sent by mistake and that he will take care of same, however, he did not come to the branch. The defendant immediately surrendered the possession of 1132. sq.ft in view of notice and vacated the basement. He further says that defendant was willing to surrender the entire leased property, however, plaintiff requested that he will give alternate space of 302 sq. ft. on the ground floor and requested the bank to shift the locker from basement to ground floor. He further agreed to take back possession of basement but did not take the possession back. He says that shifting of locker was incurring a cost of Rs.14 lakhs and since the defendant bank did not have a approval for it, plaintiff himself offered to bear the expenses, however, subsequent expenses were borne by bank. The shifting of locker was done on 04.01.2019 itself and the basement was vacated.
The entire project was completed in March, 2019. Defendant paid rent in terms of lease agreement till April, 2019 and since then the defendant had been requesting plaintiff to issue letter of offer for fresh lease deed either of entire area of 668+302 sq.ft. or only of 302 sq.ft. and except the possession of 1132 sq.ft area of basement as the same was of no use for defendant.
CS(COMM) 212/20 Page 11 of 34 Kartar Singh Kochhar Vs. ICICI Bank
16. On 29.08.2019 defendant received a notice from SDMC stating that generator was parked wrongly and had to be removed within 48 hours. The plaintiff did not resolve the problem and defendant had to disconnect the generator because of which bank had to work without generator. He says that from 04.01.2019 only 668 sq. ft. area was being used by defendant.
17. Argument were heard from Sh. Inder Chand, Ld. Counsel for plaintiff as also from Ms. Chetna Bhalla & Sh. Kartik Bhalla, Ld. Counsels for defendant. I have also perused the written submissions filed by the parties.
18. Ld. Counsel for plaintiff has relied upon judgments in Madanmohan Jena and Ors. vs. Srinath Samal & Ors. AIR 1973 Orissa 22; G.P. Mallappa Vs. Matum Nagu Chetty, 1918 SCC Online Mad 99; Sunil Kumar Roy Vs. M/s. Bhowra Kankenee Collieries Ltd. & Ors. AIR 1971 Supreme Court 751; Ishwar Bhai C Patel @ Bachu Patel Vs. Harihar Behera & Anr. AIR 1999 SC 1341; Martand Pandharian Chaudhary vs. Radhabai Krishana Rao Deshmukh, Air 1931, Mombay 97, Zile Singh Vs. Santosh @ Santra & Ors. CM (M) 1296/2018 DHC; Ramanand Vs. Girish Soni, AIR Online 2020 Del 734; Sangeeta Batra Vs. VND Foods & Ors., 2015 (6) ADR 547 & Jaswinder Kaur Vs. Anil Ahuja, AIR Online 2018 Del 2111; Raja Dhruv Dev Chand Vs. Raja Harmohinder Singh & Anr., AIR 1968 SC 1024; Sri CS(COMM) 212/20 Page 12 of 34 Kartar Singh Kochhar Vs. ICICI Bank Thiagarajaswami Devastanam Tirukkavalai Vs. Kamalappa Thevar & Ors., AIR 1962 Madras 439; Jatinder Kumar Vs. Harmohinder Singh & Ors. AIR 1994 Punjab & Haryana 60 & Balasubramania Iyer Vs. Subbiah Thever & Anr. AIR 1965 Madras 417.
19. Ld. Counsel for defendant on the other hand relied upon the judgment in Civil Appeal No. 2491-2492 of 2021, AIR 1971 SC 751 Union of India & Ors. Vs. N. Murugesan; RFA 784/2010 HS Bedi Vs. National Highway Authority of India, RFA 784/2010, decided on 14.05.2015.
FINDINGS
20. Whether plaintiff is entitled to arrears of rent amounting to Rs.1,08,89,099/- from the defendant for the period w.e.f. 01.05.2019 to 01.07.2020 in terms of lease deed dated 10.10.2012? OPP
21. It was argued by Ld.Counsel for the plaintiff that suit was filed by the AR, who never appeared before the court. The evidence was led by a different person. He argued that since the person who filed the suit was not examined by the plaintiff the suit should be dismissed for non prosecution of the main witness. In this regard he relied upon the judgments in Ishwar Bhai C Patel @ Bachu Patel & Zile Singh (supra), wherein it was held that "where the party abstains from witness box and does CS(COMM) 212/20 Page 13 of 34 Kartar Singh Kochhar Vs. ICICI Bank not make any statement on oath in support of pleadings set out in written statement an adverse inference has to be drawn against such person".
Relevantly, defendant in the instant matter is a bank. The employees of bank keep coming and going. The body incorporates like bank authorize their representatives to file the suit and pleadings on its behalf. In so far as giving of evidence is concerned, it is settled law that a witness need not necessarily be authorized representative. The witnesses can also depose on the basis of their personal knowledge & information. Law does not say that its only authorized representative who can be examined on behalf of a body incorporate. Any witness who is aware of the facts and is not incompetent to depose u/s. 118 of Indian Evidence Act can give evidence in the court if he has the knowledge and information about the facts of the case.
22. DW-1 stated in his evidence that he was not authorized representative of bank and that he was deposing on the basis of his personal information. The witness inter- alia tendered in evidence the e-mails which were written by him to the plaintiff, a certificate u/s. 65-B of Indian Evidence Act in support of these emails, statement of account which was filed in the court pursuant to directions of the court and was taken on record by the court. He has stated in his cross-examination that he was attached with the branch since 26.06.2018 and the branch was allocated to him in November, 2018 and since then he has personal knowledge about everything happening in the bank. The CS(COMM) 212/20 Page 14 of 34 Kartar Singh Kochhar Vs. ICICI Bank witness thus is a competent witness to depose about all the events that took place after 26.09.2018 on the basis of his personal knowledge.
23. Question was put to the witness that he has written in his affidavit in verification clause that he has personal knowledge of only para no. 1, 16 & 19, in reply of which the witness stated that it is correct, however, the record shows that verification clause says that contents of para 1 to 19 are all true and correct to the best of his knowledge and information which he believed to be correct. The witness, therefore, is a competent witness and has deposed in respect of facts with in his knowledge. The judgment cited by plaintiff wherein the witness was not examined does not help the plaintiff.
24. The main defense of defendant is that it had vacated basement subsequent to receiving of Notice of SDMC and, therefore, was not liable to pay rent in respect of the basement. It was argued by Ld. Counsel for plaintiff that there was no agreement to surrender the basement. The space provided on ground floor of 302 sq. ft. was additional space as requested by defendant. No letter as pleaded by defendant regarding surrender of basement was received by plaintiff as the e-mail IDs of plaintiff is mentioned incorrect in these e-mails.
25. The defendant in this regard has relied upon e-mails exhibited as Ex.DW1/3-A to 3-I legal notice sent by CS(COMM) 212/20 Page 15 of 34 Kartar Singh Kochhar Vs. ICICI Bank plaintiff to the defendant on 24.08.2019 Ex.PW1/O and its reply dt.04.09.2019 Ex.PW1/P. He has also relied upon email dated 04.01.2019, which was tendered in the cross examination of the witness. Ld counsel for plaintiff has taken an objection that this email was not filed by the defendant with documents and, therefore, could not be exhibited. The law, however, says that any document which is relevant can be shown to a witness during cross examination, such document then becomes part of record. A part of record can always be exhibited in evidence.
26. Defendant in the email dt. 17.06.2019, which is addressed to [email protected] has written categorically that entire basement had been vacated due to MCD sealing notice on 03.01.2019 and the defendant was using 668 sq. ft. existing and 302 sq. ft additional space on ground floor. In the e-mail dt.17.06.2019 it was also written that the entire basement was vacated on 03.01.2019 and that he (DW1 herein) was requesting for finalization of rent for additional space.
27. E-mail dt. 04.01.2019 was put to PW-1 in cross-
examination, wherein it was written that the plaintiff had offered adjacent space at ground floor of 302 sq. ft against the MCD notice. It was further written that defendant was taking offered space at ground floor and vacating the basement space on immediate basis. The relevant portion of mail is from portion A to A. plaintiff claimed that this mail was not received by him.
CS(COMM) 212/20 Page 16 of 34 Kartar Singh Kochhar Vs. ICICI Bank
28. Relevantly, all the e-mails referred by DW-1 in his evidence including the e-mail dt. 04.01.2019 were sent by DW1 to more than one e-mail IDs. The e-mails have been written to kskocchar2@ gmail.com and [email protected] and also to Jasleen Kochhar. Plaintiff stated that e-mail ID [email protected] does not belong to him and there is no Ketan Behera working in his office. The record, however, shows that Ketan Behera had sent letter of rent invoices to the defendant from his e-mail. Both Ketan Behera and Jasleen Kochhar had communicated with defendant on behalf of plaintiff at one or the other point. Be it as it may. The defendant had sent reply to legal notice Ex.PW1/O, which is Ex.PW1/P. This notice has been admitted by the plaintiff. In fact, it is filed by the plaintiff himself. The defendant in this notice has clearly written as under:-
"This is to inform you that since April- 2019, we have been regularly following up with you to provide the offer letter for additional space that has been taken on the ground floor so that the basement can be surrendered and aforesaid space of 320 sq. ft can be added in the lease deed for revision of rent. However, even after regular follow-up, we have still not been provided with the proposal. Therefore, as the basement has been vacated and is non-operational, we will not be able to provide the rent for the same till the revised rent proposal is shared with us. In light of the same situation, we have discontinued the rent until the rent revision".
CS(COMM) 212/20 Page 17 of 34 Kartar Singh Kochhar Vs. ICICI Bank
29. Although the e-mails must also have reached the plaintiff as they were addressed to his daughter and Ketan Behera also, plaintiff cannot deny that defendant served a proper letter in form of reply to his legal notice i.e Ex.PW1/P asking him to execute a fresh lease deed in respect of additional space and take the possession of basement which was lying vacant. The plaintiff has nowhere stated that he took any steps in furtherance of this reply to either get a revised lease deed prepared or to take the possession of basement.
30. Ld. Counsel for plaintiff has argued that there could not be surrender of part premises as any variation in registered deed could be carried by a registered deed only. In this regard he has placed reliance upon Madanmohan Jena & Ors. (Supra) G.P. Mallappa (Supra) and Sunil Kumar Roy (Supra). In the cited judgment Hon'ble Supreme Court held that "it is well settled by now that the document which varies the essential terms of registered lease deed such as the amount of rent, must be registered." Hon'ble Supreme Court in this regard referred to the judgments in Lalit Mohan Ghosh Vs. Gopali Chuck Coal Company Ltd. and Durga Prasad Singh VS. Rajendra Narain Bagchi.
The facts of the cited judgments, however, are distinguishable since in the instant matter defendant had been constantly asking plaintiff to get revised lease deed prepared, which could then be registered. It was the plaintiff, who did not pay any heed to the requests of CS(COMM) 212/20 Page 18 of 34 Kartar Singh Kochhar Vs. ICICI Bank defendant despite receiving the e-mails and reply to legal notice. The plaintiff himself has admitted in Ex.PW1/O that defendant had in fear of sealing removed its belonging from basement floor and requested him to provide additional space for locker. He was thus aware of fact that the basement had been vacated by plaintiff which was because of fear of SDMC notice and the additional space was provided by him in lieu of the basement.
31. Defendant is strongly placing reliance upon clause C in schedule V and clause 7 (II) (b) and (j). The provision has been quoted hereinabove. It says that the defendant was given assurance that the property including basement was approved for use for commercial/banking activities. As per the aforesaid clause of lease deed the plaintiff had agreed to indemnify defendant in case of any loss that it could suffer on account of misrepresentation regarding user of property. Admittedly, a notice was issued to the defendant bank by SDMC for alleged misuse of basement. The plaintiff is claiming that the notice was issued to everyone in the market and there was nothing wrong with the permission, however, the fact that immediately after receiving of notice plaintiff provided space to the defendant on ground floor indicates that the same was a consequence of notice issued by SDMC. Plaintiff has not stated that it had replied the notice or had informed SDMC under acknowledgment of defendant that there was no misuse of the property.
CS(COMM) 212/20 Page 19 of 34 Kartar Singh Kochhar Vs. ICICI Bank
32. Plaintiff had filed letter dt. 25.07.2018 alongwith documents, however, the same was not exhibited. The fact, however, remains that it was filed by plaintiff himself, who cannot deny knowledge of it. It was put to the witness that defendant through this document had asked for documents mentioned in the letter which were sanction plan, MCD NOC for basement usage, regularization plan, fire safety clearance, conversion/parking charge paid slip; however, the plaintiff did not supply these documents to the defendant. Plaintiff replied that he had not received this mail. There is no explanation as to how plaintiff got this mail if it was not received by him and how it got filed alongwith documents relied upon by him.
33. PW-1 was shown notice issued by SDMC for sealing of basement property, which was exhibited as Ex.D2, however, plaintiff stated that he was not shown any notice and that the notice was sent to him by defendant's advocate after 10 months on 22.10.2019. It is the case of plaintiff himself that notices were issued to everybody in the market and in this regard he has examined a witness also (DW2). He has talked about the defendant having vacated the ground floor out of fear of SDMC notice in his legal notice dt. 24.08.2019. It, therefore, does not lie in the mouth of plaintiff to claim that he was unaware of SDMC notice till October, 2019. The witness was confronted with his plaint and asked that he has not mentioned in plaint that the notice was not shown to him till October, 2019, to which he replied that it was matter of record.
CS(COMM) 212/20 Page 20 of 34 Kartar Singh Kochhar Vs. ICICI Bank The plaintiff thus was aware of SDMC notice. He admittedly did not take any steps to reply or get the notice revoked/cancelled. The fear of defendant, who was running a bank involving huge public interaction on day to day basis, after receiving the notice of SDMC, is thus reasonable.
34. In this regard cross-examination of PW-1 is also relevant. He having denied initially in the cross- examination the knowledge of SDMC notice till October, 2019, admitted in cross-examination at page 2 on 02.05.2022 that on 26.12.2018 SDMC, South-Zone, Green Park had sent notice to all occupants of market including defendant. He also admitted that he did not take any action with respect to aforesaid notice of SDMC. Witness denied that after the notice defendant wanted to vacate and surrender the lease premises on 04.01.2019 and that plaintiff had offered 302 sq. ft. space on ground floor to shift the lockers. He admitted that he had renovated the additional portion of ground floor to make is usable by defendant. Witness admitted that bank was requesting to accept possession of 1132 sq. ft area of basement and he has refused to accept the same but denied that defendant had vacated the basement portion on 04.01.2019.
35. Relevantly, defendant has mentioned in his affidavit that SDMC had asked it to remove generator which was lying in the parking area. The fact was notified to the CS(COMM) 212/20 Page 21 of 34 Kartar Singh Kochhar Vs. ICICI Bank plaintiff but he did not do anything to address the issue because of which the branch had to run without generator. The fact being so fear of defendant that SDMC could take action in respect of the basement pursuant to their legal notice was not without basis. Admittedly, plaintiff did not take any steps like replying the notice or initiating proceedings for cancellation of this notice.
36. Plaintiff being in knowledge of all the facts cannot now claim that in absence of registered deed regarding alteration of tenanted premises, the surrender of basement cannot be accepted. Allowing such plea would mean letting plaintiff take benefit of his own wrong. Reliance in this regard is placed upon the judgment in HS Bedi Vs. National Highway Authority of India (Supra), wherein Hon'ble Court deprecated the practice of landlords in not taking possession when offered by the tenants and trying to delay the taking of possession with ulterior motives.
37. The plaintiff has relied upon judgment in Ramanand Vs. Girish Soni, AIR Online 2020 Del 734, wherein the court was dealing with a case where the tenant had pleaded force majeure and beyond control of tenant on the ground of disruption of activities due to lock-down to claim that the defendant could not avoid payment of rent because of notice of SDMC.
38. Ld.Counsel for plaintiff has relied upon the portion of above judgment wherein the Hon'ble Court referring to CS(COMM) 212/20 Page 22 of 34 Kartar Singh Kochhar Vs. ICICI Bank section 32 of Contract Act stated that if the tenant wished to retain the premises and there was no clause giving any respite to the tenant, the rent or monthly charges would be payable. Admittedly, in the instant case defendant had conveyed to the plaintiff immediately after receiving the notice of SDMC that it was not willing to continue in the basement portion of the property, in respect of which the notice was given by SDMC. The plaintiff has not been able to show any reason why suddenly after receiving notice from SDMC a need was felt where defendant was provided additional space on the ground floor. In fact, the plaintiff admits in his notice Ex.PW1/O that defendant had removed its belongings from the basement floor in fear of sealing.
As stated hereinabove, defendant even sent e-mails to the plaintiff asking him to redraft lease deed, which the plaintiff did not do. Under these circumstances, the cited judgments do not help the plaintiff on facts since in the instant matter defendant had not only conveyed disinclination of continuing with basement but had vacated the same under information to plaintiff. The defendant continued to pay rent to the plaintiff till April, 2019. In absence of any reason given by plaintiff for sudden shifting of defendant from basement to ground floor, the reason assigned by defendant orally as also in its e-mails sent to the plaintiff Ex.DW1/3A to 3I & Ex.PW1/D1 and the reply to legal notices Ex.PW1/P shall be accepted as the correct reason for shifting. The reasons were bonafide on part of defendant and since the defendant also shifted CS(COMM) 212/20 Page 23 of 34 Kartar Singh Kochhar Vs. ICICI Bank from basement to ground floor because of these reasons it cannot be held liable to pay rent for this portion as the plaintiff refused to acknowledge the surrender and execute revised lease deed. If the plaintiff was unhappy with defendant in vacating the basement, he could have asked the defendant to vacate the premises. On the contrary, he provided additional space on the ground floor to the defendant. The gesture would show that it was plaintiff who wanted defendant to continue in the premises as has been claimed by defendant.
39. It is clear from cross-examination as well as documents that it was on account of notice given by SDMC, which has been accepted by defendant that defendant had got worried and it was a consequence of this that additional space of 302 sq. ft. on the ground floor was taken by the defendant from plaintiff on rent. It is admitted case of parties that the lockers were shifted from basement to the ground floor. It is also proved by the mails and legal notice of plaintiff as also from his admission in cross-examination that the defendant was requesting plaintiff to accept the possession of 1132 sq. ft of basement area but the plaintiff was refusing to accept. The defendant thus, had done the needful on its part to vacate the basement portion and had intimated about the same to plaintiff. It was on the part of plaintiff that the possession was not taken, for which no justifiable reason has been assigned by plaintiff in cross-examination. Defendant as such is not liable for payment of rent for CS(COMM) 212/20 Page 24 of 34 Kartar Singh Kochhar Vs. ICICI Bank basement w.e.f May 2019. The rent till April 2019 stands paid.
40. The plaintiff is claiming rent @ Rs.1,08,89,099/- as arrears from defendant for the period w.e.f. 01.05.2019 to 01.07.2020. In view of above findings the plaintiff was entitled only for proportionate rent in respect of 668 sq. ft. of property which remained in the occupation of defendant and not rent for entire portion of 1132+ 668 sq. ft. In so far additional space of 302 sq. ft. is concerned that portion of property is being litigated by the parties in a separate suit and thus shall not be considered here.
41. It is the case of plaintiff that the rates of rent for the ground floor and basement were different while the rate of rent for basement was @ 275 per sq. ft., the rate of rent for ground floor was @ 550 per sq. ft. In this regard he relied upon Ex.PW1/C. In his cross-examination it was put to the witness that this document was never agreed upon and never served upon defendant. In respect of the agreement of rent at two different rates plaintiff stated in his cross- examination that Ex.PW1/C, which defendant was claiming to be an undated and unsigned document was in fact attachment of Ex.PW1/D-the mail sent to defendant by plaintiff. The attachment of Ex.PW1/D as can be seen from the document is a document on the letterhead of ICICI Bank. The plaintiff thus has given a false statement that Ex.PW1/C was an attachment of PW1/D. It was put to the CS(COMM) 212/20 Page 25 of 34 Kartar Singh Kochhar Vs. ICICI Bank witness that there is no proof on record that Ex.PW1/C was sent to the defendant to which he replied that it was matter of record. Apart from this statement there is nothing on record that Ex.PW1/C was in fact ever agreed or served upon defendant.
42. Nonetheless plaintiff himself had sent notice Ex.PW1/O to the defendant which find reference to agreed rates of rent. Attention of PW1 was drawn during cross- examination to the portion A to A of notice wherein it was written, "that a lump sum rent for premises was fixed for Rs.6,78,700/-per month for first three years. Rs.7,80,505/- per month for next three years and Rs.8,97,581/- per month for last three years as mentioned in schedule III of said Indenture of Lease." The notice further says as under:
"The rates for lease rent for ground floor in always higher than the rates for basement floor but after negotiation and considering long duration of lease, the rates prevailing for basement floor were accepted by the undersigned for the ground floor also."
43. Witness was questioned as to what he had to say about non-mentioning of bifurcation of rent in above quoted portion of legal notice Ex.PW1/O, to which witness stated that it was matter of record. Thus, as per evidence there is no proof of service of Ex.PW1/C, which shows different rates of rent for ground floor and first floor and in Ex.PW1/O, the plaintiff is himself stating that he had agreed to rent out the ground floor at the same rate as CS(COMM) 212/20 Page 26 of 34 Kartar Singh Kochhar Vs. ICICI Bank basement. The plaintiff therefore, cannot claim that the rate of rent of ground floor was agreed at a higher rate than the basement. The rent from June, 2019 therefore, will be computed in respect of 668 sq. ft. of area proportionately from the entire rent of Rs.8,97,581/-. The computation in respect of issue no.1 & 2 is given later in the judgment.
44. Issue No.2:- Whether plaintiff is also entitled to rent for the period after 01.07.2020 till handing over of the keys/possession of the vacant premises by the defendant to the plaintiff? OPP
45. Defendant in this case continued in possession of 668 sq. ft. of ground floor even after filing of the suit. The notice for termination of lease and handing over of possession was issued to the plaintiff 07.07.2021 wherein it was written clearly that the peaceful possession of premises shall be handed over on 30.09.2021. Pursuant to the notice plaintiff moved an application u/s 108 (M) of Transfer of Property Act. The court vide order dt. 23.09.2021 stated that the counsels may take photographs of premises and prepare inventory of articles/fixtures/lying found damaged, if any in the presence of plaintiff and AR of defendant. It is the case of plaintiff that defendant did not let the inspection happen and tried to hand over the key to the plaintiff. The inspection could not take place because there was no electricity in the basement floor. In this regard plaintiff has also examined PW-2. He says that he was present when inspection was being done on CS(COMM) 212/20 Page 27 of 34 Kartar Singh Kochhar Vs. ICICI Bank 30.09.2021 but the inspection could not take place as there was dark in the leased property as defendant had disconnected the electricity supply from main meter and had removed all the electric wiring. Later, when he visited the property it was found badly damaged requiring major repairs. In his cross-examination he stated that three officials of bank, counsel for plaintiff and plaintiff were present at the spot and denied the suggestion that he was not present at the time of inspection. As per plaintiff's own witness the inspection could not be conducted as it was dark in the basement and not because defendant did not participate in inspection. Further, the lease anyways was expiring in September, 2021, it having been executed for 9 years w.e.f. October, 2012. Admittedly, there was no renewal of lease and the defendant vacated the premises on expiry of lease deed and also served a notice upon the plaintiff to this effect. The defendant therefore, shall be liable to pay rent from 01.07.2020 till 30.09.2021, on which date lease stood terminated and the premises was vacated. In so far as damage etc. to the property is concerned, that shall be part of additional issue framed in respect of application under Section 108 (m) of Transfer of Property Act. The defendant, however, shall be liable to pay the rent for 668 sq. ft. of area of ground floor, which it had in its possession during the aforesaid period.
46. Computation It is the claim of defendant that the entire rent in respect of 668 sq. ft. of area stands paid and in fact CS(COMM) 212/20 Page 28 of 34 Kartar Singh Kochhar Vs. ICICI Bank defendant is entitled for some recovery. There is no dispute that the entire rent till April, 2019 was paid to the plaintiff as per lease agreement. The defendant was paying a rent of Rs.8,97,581/- in respect of entire area of 1800 sq. ft. The rate of rent therefore, would be Rs.498.6/- per sq. ft. The defendant thus was liable to pay an amount of Rs.3,33,102/- per month to the plaintiff in respect of 668 sq. ft. of area in his possession (excluding the area of 302 sq. ft. which is subject matter of other suit). The defendant was liable to pay rent at this rate from May, 2019 till September, 2021 i.e for 29 months. The defendant, thus was liable to pay an amount of Rs.96,59,966.18 (Rs.3,33,102 X by 29) to the plaintiff for arrears of rent from May 2019 till September 2021.
47. The statement of account was filed by defendant, exhibition of which was objected to by the plaintiff on the ground that it was filed in reply to application u/o 39 rule 10 CPC and was not filed alongwith plaint. The fact, however, is that computation was including a period subsequent to filing of suit and was filed on the directions of court, the document therefore, cannot be discarded.
The amounts reflected in the document subsequent to May, 2019 shall be considered as the rent till April, 2019 was paid by defendant itself in respect of whole property and it has not filed any counter claim for the recovery of same. As per this document defendant paid an amount of Rs.19,98,614/- on 15.10.2019. An amount of Rs.3,33,102/- on 15.11.2019. An amount of Rs.3,33,102/- on 29.11.2019.
CS(COMM) 212/20 Page 29 of 34 Kartar Singh Kochhar Vs. ICICI Bank As per defendant it paid gross amount of Rs.16,65,511.41 on 03.07.2020. An amount of Rs.9,99,307/- on 17.08.2020 towards rent of June, 2020 to August, 2020. The rent of September, 2020 to December, 2020 was paid on 22.12.2020 as Rs.13,32,409. For rent of January, 2021 to March, 2021 defendant paid an amount of Rs.9,99,306.85.
On 23.12.2021 defendant paid an amount of Rs.19,58,612/- to the plaintiff towards balance rent. The defendant as such paid an amount of Rs.96,19,964.26 to the plaintiff. Defendant has also filed on record duly certified bank statement. Admittedly, the retention money of Rs. 40,72,200/- was also lying with the plaintiff. The total amount with the plaintiff therefore, becomes Rs.96,19,964/- plus Rs.40,72,200/- which is more than the amount which defendant was liable to pay towards arrears of rent from May, 2019 till the vacation of premises by the defendant. The plaintiff as such, is not entitled for recovery of any rent from the defendant.
48. In so far as balance amount remaining with plaintiff is concerned, another suit in respect of additional space of 302 sq. ft. is pending and the defendant has stated in written arguments that balance amount is towards rent of additional space.
49. The two issues no 1 & 2, therefore, are decided against the plaintiff and in favour of defendant.
CS(COMM) 212/20 Page 30 of 34 Kartar Singh Kochhar Vs. ICICI Bank
50. Issue No.3:- Whether plaintiff is entitled to interest from the defendant? If so, whether at the claimed rate of 12% per annum from the defendant? OPP
51. Since the issue no.1 & 2 are decided in favour of defendant and against the plaintiff, the plaintiff is not entitled for any interest as well.
52. Issue No.4:- Relief. In the facts and circumstances, it is held that defendant has succeeded to prove that it has paid off the rent for the specified period and nothing remains to be paid to the plaintiff towards rent. The suit of plaintiff is therefore, dismissed. Decree sheet be prepared. File be consigned to record room.
Order on application u/s 108 (m) T.P. Act.
53. An ADDITIONAL ISSUE WITH RESPECT TO THE APPLICATION as under:
"Whether defendant has caused any damage to the tenanted premises? If so, whether defendant is required to restore the premises to its original position to the plaintiff as claimed by the plaintiff in its application dated 21.09.2021, U/s 108(m) of the Transfer of Properties Act, 1882? OPP"
54. It is the case of plaintiff that after the defendant served notice of termination of lease, the plaintiff had sent a reply to the termination notice asking the defendant to CS(COMM) 212/20 Page 31 of 34 Kartar Singh Kochhar Vs. ICICI Bank restore the property in as good condition as it was at the time when it was put in possession and also filed present application u/s 108 (m) of T.P. Act.
55. Plaintiff claims that defendant while vacating the premises damaged the building and removed the furniture and fixtures, which was not owned by defendant. The defendant damaged civil work done at the time when the defendant was put in possession in terms of lease deed. Plaintiff by way of application asked for direction to defendant to restore property in good condition.
56. Pursuant to the direction of court local commissioner was appointed by the court, who filed report. Plaintiff in support of this application has relied upon schedule IV, which is a part of indenture of lease deed at page no.24 of indenture of lease which is Ex.PW1/Z. Plaintiff says that he had paid an amount of Rs.5,53,857/- towards the payment of owners scope of work vide cheque no.9015896. The details of work done have been mentioned in Ex.PW1/AA and AB. The plaintiff has also filed copy of statement showing payment of Rs.5,53,857.92 made vide above cheque. The plaintiff also claimed that defendant brutally damaged leased premises, walls were damaged, internal electric wiring were removed, tiles were broken and stairs were damaged. He in this regard is relying upon report of local commissioner, which mentions all these damages having been caused to the property. In cross-examination a CS(COMM) 212/20 Page 32 of 34 Kartar Singh Kochhar Vs. ICICI Bank suggestion was given to defendant that whatever damage was caused to the property was in connection with use and removal of lockers and heavy articles at the time of vacating the premises and same was not intentional. The defendant thus admits that damages were caused to the property though it claims that these damages were not intentional. The plaintiff stated in cross-examination that apart from items put up by defendant in premises it had also taken away items affixed by plaintiff in the premise. On specific question the plaintiff sated that he had affixed items worth Rs.5,53,857/- at the time of letting out. The bank had taken away/dismantled electric fitting, switch board, wires and same were sold to Kabari.
57. The report of LC mentions that ramp of main entrance was broken, hand support of ramp was removed, electricity boards were removed from washroom and ground floor, a few tiles were broken, all electricity fittings were removed, false sealing with light was dismantled, shutters were not working, stairs of basement were broken. There was no cross-examination of plaintiff by the defendant on the report of local commissioner. According to this report though no substantial structural damage has been caused to the property, the electricity boards etc. were completely removed and tiles etc. were also broken.
58. The defendant has not questioned plaintiff on its investment of Rs.5,53,857/-, at the time of handing over of premises to the plaintiff.
CS(COMM) 212/20 Page 33 of 34 Kartar Singh Kochhar Vs. ICICI Bank
59. In view of the report of Local Commissioner and proof of expenditure incurred by plaintiff of Rs.5,53,857/- at the time of Letting of property, the defendant is directed to pay a lump sum of Rs.10 lakhs to the plaintiff towards damages caused to the structure while vacating the premises so as to put the premises back in the same condition in which it was handed over to it. The application is decided in above terms.
File be consigned to Record Room.
(ANURADHA SHUKLA BHARDWAJ) District Judge (Commercial Courts)-02, South District, Saket, New Delhi Announced in the open court on 25.01.2024 CS(COMM) 212/20 Page 34 of 34 Kartar Singh Kochhar Vs. ICICI Bank