Delhi District Court
Mrs.Madhu Mathur vs M/S.Wisec Global Ltd on 4 February, 2011
IN THE COURT OF SH. SANJEEV JAIN
ADDITIONAL DISTRICT JUDGE9 (Central): DELHI
Suit No.313/09/06 (Suit)
Date of institution : 05.08.06
Arguments heard on :24.12.10
Date of Judgment :04.02.11
Mrs.Madhu Mathur
w/o late Sh.V.N.Mathur,
R/o flat no.2107, SectorB
PocketII, Vasant Kunj,
New Delhi.
...Plaintiff.
Vs.
M/s.Wisec Global Ltd.
B6/6, Commercial Complex,
Safdarjung Enclave,
New Delhi.
...Defendant.
Suit no.312/09/06 (Counter claim)
Date of institution : 9.11.06
Arguments heard on :24.12.10
Date of Judgment :04.02.11
Wisec Global Ltd.
B6/6, Commercial Complex,
Safdarjung Enclave, New Delhi.
...Counter claimant/Defendant
Vs.
Suit no.312/09/06 and 313/09/06 1
Mrs.Madhu Mathur
w/o late Sh.V.N.Mathur,
flat no.2107, Sector B,
Pocket II, Vasant Kunj,
New Delhi.
... Respondent/Plaintiff
Suits for possession and recovery of mesne
profits and damages as well as counter claim for
specific performance of contract for renewal of
lease deed.
JUDGMENT
1 By this common judgment, I propose to decide suit no.313/09 filed by Madhu Mathur against defendant Wisec Global Ltd. and counter claim filed by defendant Wisec Global Ltd.(registered as separate suit bearing no.312/09) for Specific Performance of contract/MOU dt.25.6.01. In the main suit bearing no.313/09 following reliefs has been claimed by plaintiff.
a Decree for possession of property bearing no.B6/6, Commercial complex, Safdarjung Enclave, New Delhi consisting of basement, ground floor, first floor, second floor and third floor (hereinafter referred as 'tenanted premises') b To pass a decree of damages, mesne profits @ Rs.90,000/ for the period from 1.6.06 to 30.6.06 .
c To award damages/mesne profits @ Rs.3,00,000/ per month from 1.7.06 to 31.7.06.
Suit no.312/09/06 and 313/09/06 2 d To pass a decree @ Rs.7200/ being interest @ 18% per annum on the amount of Rs.3,90,000/.
e To pass a decree of future damages/mesne profits @ Rs.3 lacs per month.
f To award pendentlite and future interest @ 18% per annum. 2 In counter claim (suit no.312/09) following relief has been claimed.
Decree of specific performance of contract/MOU dt.25.6.01 by executing and registering a lease deed in favour of defendant/counter claimant in respect of tenanted premises w.e.f. 1.6.06 to 31.5.10. 3 Brief facts of the plaintiff's case is that late Sh.V.N.Mathur, (husband of the plaintiff ) was owner of the tenanted premises having a total area of 533.3 sq.yards. He let out the said premises to defendant for a period of five years, commencing from 1.6.01 vide registered lease deed dt.23.8.01. After death of Sh.V.N.Mathur on 10.12.03, all his legal heirs relinquished their shares in the premises in question in favour of their mother i.e. plaintiff Smt.Madhu Mathur vide registered relinquishment dt.12.3.04. As per registered lease deed dt.23.8.01, for the initial period of three years, the rate of rent was Rs.75,000/ per month and thereafter rent was to be enhanced by 20% over and above the last paid rent which comes to Rs.90,000/ per month. The lease deed dt.23.8.01 was for a period of five years which expired in the midnight of 31.5.06 by afflux of time and the tenancy was terminated. Suit no.312/09/06 and 313/09/06 3 Plaintiff wrote a letter dt.20.5.06 and asked the defendant to vacate the premises as tenancy was expiring on 31.5.06. The said letter was replied by defendant by reply dt.27.5.06. The defendant took various pleas which as per plaintiff were false, baseless and frivolous. Although the tenancy was terminated on 31.5.06 by afflux of time, as a matter of precaution vide notice dt.6.6.06, plaintiff asked the defendant to vacate the premises. The said notice was sent through registered post which was duly served and was responded vide reply dt.12.6.06. As per plaintiff, again false, baseless and frivolous pleas were taken by defendant to avoid handing over the possession of the premises. Accordingly to plaintiff, since 01.06.06 defendant has no right in the tenanted premises and he is an unauthorized occupant. The provision of Delhi Rent Control Act are not applicable in the present case as the rent of premises exceeds Rs.3500/ per month.
4 In written statement, set off, and counter claim, defendant mainly stated that plaintiff has not approached with clean hands and suppressed the material facts. As per defendant, late Sh.V.N.Mathur executed a MOU dt.25.6.01 in respect of tenanted premises for a period of nine years w.e.f. 1.6.01. In consideratin of the said agreement, Sh.V.N.Mathur received a deposit (pagdi) by way of allotment of Rs.50,000/ equity shares of Wisec Glaobal Ltd. @ Rs.15/ per share for a total amount of Rs.7,50,000/. In accordance with MOU, shares were duly received by Sh.V.N.Mathur and thereafter were transferred in the name of plaintiff and after death of Sh.V.N.Mathur it were sold by the Suit no.312/09/06 and 313/09/06 4 plaintiff in capital market for handsome profit. According to defendant, execution of MOU has been acknowledged by the plaintiff in rejoinder dt.12.4.03 given by plaintiff's advocate Mr.R.K.Associates. In written statement/counter claim, it is also stated that in continuation of MOU dt.25.6.01, tripartite Franchise Agreement dt.14.11.02 was executed between Sh.V.N.Mathur, defendant Wisec Global Ltd. and M/s.Amalgamated Bean Coffee Trading Co.Ltd.for period of nine years. As per this tripartite contract, the entire ground floor portion of the tenanted premises was given to M/s.Amalgamated Bean Coffee Trading Co.Ltd. As per tripartite contract, M/s.Amalgamated Bean Coffee Trading Co.Ltd. was required to pay 15% share of their gross sale to the plaintiff and defendant i.e. 13% share to the Wisec Global Ltd. and 2% to the plaintiff. Accordingly, as per franchise agreement M/s.M/s.Amalgamated Bean Coffee Trading Co.Ltd. is running its coffee shop at the ground floor. Defendant has claimed set off Rs.2.5 lacs deposited with plaintiff as security deposit. Apart from it, defendant also claimed an amount of Rs.1,10,160/ paid by defendant on behalf of Sh.V.N.Mathur with BSES Rajdhani Ltd. Defendant claimed the set off Rs. 72,000/ spent on repairs of sewerage line to prevent leakage of sewer water in the basement. According to defendant, Sh.V.N.Mathur had taken Rs.7,50,000/ by way of allotment of 50,000 equirty share of defendant Co.@ Rs.15/ per share. Other material contents of the plaintiff's case are denied. Accordingly, defendant claimed the set off above mentioned amount and the Specific Performance of Contract/MOU for renewal of tenancy.
Suit no.312/09/06 and 313/09/06 5 5 In replication to the written statement in main suit and in written statement to the counter claim, plaintiff denied the material contents of the written statement, set off and counter claim and reiterated the contents of the plaint. It is alleged by plaintiff that MOU dt.25.6.01 is neither registered nor properly executed and therefore is a void document and can not be looked into for any purpose. It is stated that 50,000 equity shares were alloted in the name of Sh.V.N.Mathur by defendant on account of payment of previous arrears of rent and it was not a pagri or security deposit. The claim of defendant in respect of set off are specifically denied.
6 In the suit (bearing no.313/09) following issues were framed vide order dt.18.7.07.
1. Whether the suit is bad for suppression of material facts?(OPD)
2. Whether the suit is bad for misjoinder of the parties? (OPD)
3. Whether the suit is bad for the lack of cause of action? (OPD)
4. Whether the plaintiff is entitled for possession of the suit property?(OPP)
5. Whether the plaintiff is entitled for damages/mesne profits, if so, at what rate and for which period?(OPP)
6. Whether the plaintiff is entitled for interest, if so, at what Suit no.312/09/06 and 313/09/06 6 rate and for which period?(OPP)
7. Relief.
7 In counter claim(suit bearing no.312/09) following issues were framed vide order dt.7.11.07.
1. Whether the parties had entered into MOU dt. 25.6.01? (OPP)
2. Whether the MOU dt.25.6.01 is a valid document or can not be acted upon for want of registration?(OPD)
3. Whether the MOU dt.25.6.01 has lost its effect after lease deed or stands superseded by lease deed?(OPD)
4. Whether the counter claimant spent a sum of Rs.1,50,000/ on repairs and paid Rs.1,00,000/ as security deposit? If so, its effect?(OPP)
5. What is the effect of franchise agreement dt.14.11.2002?(OPP)
6. \Whether the defendant Smt.Madhu Mathur is under a legal obligation to execute lease deed for a period of 4 years in favour of the plaintiff?(OPP)
7. Relief.
8 At the final stage of trial, an application u/o 12 rule 6 CPC was also filed by plaintiff for possession which was heard along with the final arguments.
Suit no.312/09/06 and 313/09/06 7 9 Vide order dt.4.2.10 name of defendant no.2 i.e. M/s.Amalgamated Bean Coffee Trading Co.Ltd. was deleted in accordance with the statement of Ld.counsel for defendant and suit no.313/09 and counter claim ( suit no.312/09) were consolidated to avoid repetition of evidence and conflicting judgment. By same order, suit no.313/09 was treated as the main suit.
10 In order to prove its case, plaintiff has examined PW1 Smt.Madhu Mathur, who supported the material averments of her case. In her affidavit filed in examination in chief, she proved the relevant documents which includes the site plan of the tenanted premises Ex.PW1/1, registered lease deed dt.23.8.01 Ex.PW1/2, letter dt.20.5.06 by plaintiff to defendant to vacate the tenanted premises Ex.PW1/3, reply dt.27.5.06 sent by defendant ExPW1/4, copy of notice dt.6.6.06 issued by plaintiff to defendant through her advocate Ex.PW1/5, original post receipt Ex.PW1/6 and PW1/7 and reply dt.12.6.06 Ex.PW1/8. 11 PW2 Sh.Aashish Goyal filed his affidavit in examination in chief. He stated that property no.11, Panchsheel Shopping Centre, DDA, Panchsheel Park, Delhi, originally alloted by DDA by way of perpetual lease deed dt.12.2.73 in the name of his father consisting of basement, ground, first, second and third floor for a total area of 4800 sq.ft.was let out to M/s.Penguin Books India Pvt.Ltd. vide registered lease deed dt.31.7.98 for a period of three years on a monthly rent of Rs.1,73,200/. It was further renewed for a period of three years at the Suit no.312/09/06 and 313/09/06 8 enhanced rent of Rs.2,02,368/ and was further renewed w.e.f. 1.8.04 on a monthly rent of Rs.2,50,936/. Photocopy of the said lease deed was placed on record as Ex.PW2/3. PW2 further stated that the above mentioned property is at a distance of 2 to 3 km.from the suit property/tenanted premises. He gave an opinion that tenanted premises can easily fetch a rent of more than Rs.3 lacs per month. During cross examination, he admitted that Nehru Place is 67 km.away from Safdarjung Enclave. He could not tell the rental value in Nehru Place. He admitted that there is no cinema hall or five star hotel in near vicinity of property no.B6/6 Commercial Complex, Safdarjung Enclave. He also could not tell, whether rental value in the property in Nehru Place would be higher or lesser than those of commercial complexes situated in Safdarjung area ?
12 DW1 Sh.Satish Gola appeared on behalf of defendant. In his affidavit he supported the material averments of his written statement, set off and counter claim and proved the relevant documents. 13 DW2 Sh.Charles Kullu was Clerk from Dena Bank. He only stated that requisite record had already been destroyed as it was already ten years old and in this regard, he produced the certificate issued by Bank Manager (Ex.DW2/A).
14 DW3 Sh.Sunil Nair was working with M/s. Amalgamated Bean Coffee Trading Co.Ltd. He stated that franchise agreement Suit no.312/09/06 and 313/09/06 9 Ex.PW1/D1 was executed between M/s.Amalgamated Bean Coffee Trading Co.Ltd., M/s.Wisec Global Ltd. and Sh.V.N.Mathur. He further deposed that under the said agreement M/s.Amalgamated Bean Coffee Trading Co.Ltd. had been making regular payment to the plaintiff as well as to the defendant. He proved the records of the payment as Ex.PW1/D1 to Sh.V.N.Mathur and subsequently to Mrs.Madhu Mathur. He also proved the ledger account of his firm Ex.DW3/1. 15 DW4 Sh.Balbir Singh appeared from the Sub Registrar Office. He brought the summoned record of lease deed dt.28.3.07 executed between M/s.Saurav Aggarwal (HUF) and M/s.Preeti Aggarwal (HUF) with M/s.Sakata Inx(India) Ltd. in respect of flat no.10161023 on the 10th floor in Devika Towers, Nehru Place, NewDelhi. This lease deed was for an area of 3315 sq.fts. at a monthly rent of Rs.33/ per sq.ft.for a period of three years. The photocopy of the same was placed on record as Ex.DW4/1.
16 DW5 Sh.Brij Bhushan Nagpal appeared and stated that tripartite agreement Ex.PW1/D1 bears his signature at point B. 17 Vide proceedings dt.24.12.10 statement/undertaking was given by Sh. Rakesh Rampal, one of the director of defendant Co. that without prejudice to the respective rights and contentions of parties concerned, defendant will vacate the tenanted premises/portion which is in exclusive possession of defendant Co.(except the ground floor portion Suit no.312/09/06 and 313/09/06 10 of premises which is in occupation of M/s.Amalgamated Bean Coffee Trading Co.Ltd.) on or before 31.3.11. The said statement/undertaking of Sh.Rakesh Rampal was accordingly accepted.
18 I have heard the Ld.counsels for parties in respect of the main suit, set off and counter claim as well as application u/o 12 rule 6 CPC. I have carefully gone through the pleadings, documents proved on record and the testimony of witnesses. I have considered the written submissions filed on record. Issue wise discussions in counter claim bearing suit no.312/09 is as follows:
19 Issue no.1:Whether the parties had entered into MOU dt.25.6.01?(OPP) This issue was framed in counter claim. Onus was upon the counter claimant. Plea of the defendant in written statement as well as in counter claim was that MOU Ex.PW1/D2 was executed between the parties which was signed by Sh.V.N.Mathur, and Managing Director of Wisec Global Ltd. This document was witnessed by Sh.Anil Arora and Sh.Rakesh Rampal. PW1 Mrs.Madhu Mathur admitted that MOU was executed between her husband and defendant. Therefore, it has been duly proved that parties have entered into MOU dt.25.6.01. Issue is accordingly decided in favour of defendant/counter claimant. Suit no.312/09/06 and 313/09/06 11 20 Issue no.2:Whether the MOU dt.25.6.01 is a valid document or can not be acted upon for want of registration?(OPD) It is not in dispute that MOU dt.25.6.01 was signed by Sh.V.N.Mathur, husband of plaintiff as well as the defendant. The main plea of the plaintiff was that this document is compulsorily registrable under sec.17 of Registration Act, 1908 and has not been validly executed. Section 17 1(a) provides that, "lease of immovable property from year to year, or for any term exceeding one year, or reserving an yearly rent requires compulsory registration".
The reading of section 17 as well as other provisions of registration Act makes it clear that lease of immovable property from year to year or from any term exceeding one year or reserving an yearly rent requires registration. The main question is, whether the agreement for renewal of lease deed in future requires compulsory registration? Ld. Counsel for petitioner has relied on judgments which deals with the aspect that lease deed is compulsory registrable and therefore, not applicable to the question of dispute. There is no provision in Registration Act that any agreement or MOU containing agreement between the parties for renewal lease deed in future requires compulsory registration. After careful consideration of contents of MOU Ex.PW1/D2 and the provisions of Registration Act, I am of the considered opinion, that MOU Ex.PW1/D2 does not requires compulsory registration. Therefore, it is a Suit no.312/09/06 and 313/09/06 12 valid document which can be acted upon by the parties. Issue is accordingly decided in favour of defendant/counter claimant and against the plaintiff.
21 Issue no.3:Whether the MOU dt.25.6.01 has lost its effect after lease deed or stands superseded by lease deed?(OPD) Onus of this issue was again upon the plaintiff. The issue was framed in counter claim. From careful perusal of MOU Ex.PW1/D2 it is clear that there was an agreement between the parties in respect of the execution of lease deed for five years at a monthly rent of Rs.75,000/ for first three years and then the enhancement of rent by 20% over the last paid rent. Clause 3 of MOU provides that, "Co.shall be entitled to renew the lease deed for another term of 4 years on similar terms and conditions on enhancement of rent by 20% over and above the last paid rent". Clause 6 provides that, "the new lease deed will be effective from June 01, 2001 and will be executed and duly registered preferably before July 31, 2001". It was further provided in MOU that in order to clear past dues, arrears of rent, the Co.i.e.defendant had agreed to pay a sum of Rs.2 lacs to the landlord. In clause 9 of the MOU, it was provided that as one time compensation (to agree to renew the lease deed) the landlord has agreed to accept a consideration of Rs.7,50,000/ payable by Co.by way of allotment of 50,000 equity shares @ Rs.15/ per share. The effect of MOU can be seen firstly in lease deed Ex.PW1/2 which is an admitted document. This lease deed was executed for a period of five years on the same condition of rate of rent Suit no.312/09/06 and 313/09/06 13 as was agreed in MOU. The MOU was further acted upon. It was admitted by PW1 Smt.Madhu Mathur during her cross examination that 50,000 equity shares were allotted in the name of her husband which were lateron transferred and sold. Testimony of PW1 also proves that in respect of the shares, the terms of MOU are acted upon.
Ld.counsel for plaintiff submitted that MOU was superseded after execution of lease deed Ex.PW1/2. If there would have been any intention to renew the lease deed in accordance with the terms of MOU, this condition would have been mentioned in the lease deed itself. After careful consideration of admitted documents i.e. lease deed and MOU and testimony of witnesses, I am unable to agree with Ld. counsel for plaintiff. Lease deed for first five years was executed which requires compulsory registration. The question of MOU could have been dealt in both ways. If parties would have agreed to supersede the MOU or to continue with the terms of MOU, it could have been incorporated in MOU. The other situation is that admitted document MOU was not mentioned in the lease deed as parties did not find it necessary to incorporate in lease deed being an admitted document. Once MOU is admitted document between the parties in respect of its execution, unless it is specifically superseded by parties, it can not be accepted that parties have decided to supersede the MOU by execution of lease deed Ex.PW1/2. Most probably, if MOU would have been superseded, specific provision would have been made by the parties either in lease deed or in separate document because apart from the question of renewal of lease deed for further four years, other material terms in Suit no.312/09/06 and 313/09/06 14 respect of payment of Rs.2 lacs on account of arrears and dues and allotment of 50,000/ equity shares were also the part of the same MOU. Clause 9 of the MOU specifies that allotment of 50000 equity shares were on account of one time compensation to plaintiff to agree to renew the lease deed as aforesaid. In the last line of clause 9 of MOU the words "to renew the lease as aforesaid" signifies the other terms and conditions mentioned in clause 1 to clause 8 of the MOU which also includes the agreement for renewal of lease deed for further period of four years. Balance of probabilities suggests that MOU dt.25.6.01 has not lost its effect and is not superseded by execution of lease deed. Issue is accordingly decided in favour of defendant/counter claimant and against the plaintiff.
22 Issue no.4:Whether the counter cliamant spent a sum of Rs.1,50,000/ on repairs and paid Rs.1,00,000/ as security deposit? If so, its effect?(OPP) Onus of this issue was upon the defendant/counter claimant. The main admitted document between the parties are the lease deed, tripartite agreement and MOU which does not support the claim of defendant/counter claimant in respect of expenses on account of repairs and security deposit. No substantial evidence has been produced by defendant/counter claimant to establish that these amounts were ever paid/spent by defendant/counter claimant on behalf of plaintiff or were liable to be repaid by plaintiff. In respect of security deposit also, there is no convincing evidence on record in support of the claim of Suit no.312/09/06 and 313/09/06 15 defendant/counter claimant. Issue is accordingly decided in favour of plaintiff and against the defendant/counter claimant. 23 Issue no.5:What is the effect of franchise agreement dt.14.11.02?(OPP) Franchise agreement Ex.PW1/D1 is also admitted document between the parties. Defendant has taken the plea about execution of franchise agreement. PW1 had admitted the execution of franchise agreement in her crossexaminations. DW3 Sh.Sunil Nair working with M/s.Amalgamated Bean Coffee Trading Co.Ltd. also stated that tripartite agreement Ex.PW1/D1 was executed between plaintiff/defendant and his Co. He also stated that as per agreement, his Co.was making the payment to the plaintiff as well as to the defendant. He also proved the ledger account Ex.DW3/1. The careful perusal of the terms of franchise agreement proves that ground floor portion which was in the tenancy of defendant was given to M/s.Amalgamated Bean Coffee Trading Co.Ltd. to run 'cafe coffee day'. The arrangement between three parties i.e lessor, lessee and M/s.Amalgamated Bean Coffee Trading Co.Ltd. establish that with the consent of plaintiff and defendant i.e landlord and tenant, the ground floor portion was given to M/s.Amalgamated Bean Coffee Trading Co.Ltd. only as licensee which is clear in clause 27 of the franchise agreement Ex.PW1/D1. The effect of franchise agreement is that out of the tenanted portion of defendant, M/s.Amalgamated Bean Coffee Trading Co.Ltd. was permitted to use ground floor portion as a licensee with the permission of plaintiff and defendant on sharing of Suit no.312/09/06 and 313/09/06 16 profits in certain percentage. The issue is accordingly decided. 24 Issue no.6:Whether the defendant Smt.Madhu Mathur is under a legal obligation to execute lease deed for a period of 4 years in favour of the plaintiff?(OPP) In view of the findings of issue no.1,2 and 3, it is clear that MOU dt.25.6.01 was executed by the parties which is a valid document and has not lost its effect after execution of lease deed. As per clause 3 of MOU, Co.i.e.defendant/counter claimant was entitled to renew the lease deed for another term of four years on similar terms and conditions on enhancement of rent by another 20% over and above the last paid rent and for renewal, fresh lease deed was to be executed. Clause 4 provides that Co. i.e. defendant/counter claimant had a right to vacate the premises at any time by giving three months notice in writing. The reading of MOU makes it clear that at one end, defendant/counter claiment was entitled for renewal of lease deed for another 4 years, at the other side had a right to vacate the premises at any time by giving three months notice in writing. No similar clause was incorporated in MOU Ex.PW1/D2 to the effect that plaintiff will be entitled to decline the renewal of lease deed by another four years. If the intention of the parties would have been to give discretion to both the parties, in all probability this would have been incorporated in the MOU itself. Since the beginning, in reply to the notices issued by plaintiff admittedly defendant/counter claimant claimed the execution of MOU and right for renewal of lease deed for another four years. In the year 2006, counter Suit no.312/09/06 and 313/09/06 17 claim was filed by defendant with the prayer of specific performance of contract. Ld.counsel for defendant/counter claimant relied on AIR (37) 1950 SC1. In this case, it was held that, "where contract of lease has been partly performed in accordance with section 27 (a) of Specific Relief Act, right to specific performance of contract is available to a person, who has an agreement of lease in his favour, though no lease deed has been executed and registered". Ld.counsel for defendant has also relied Narayanaswamy Vs.Muniamma, AIR 1974 Musore 13(V 61 CS), Bhaskaran Vs. George Joseph AIR 1988, Kerala 255, Krishna Kesawan Vs. Kochukunju Karunakaran AIR 1988, Kerala 107 and T.Poppan Vs. Karia Gunder AIR 2001 Calcutta
42. After careful consideration, in view of the admitted MOU dt.25.6.01 Sh.V.N.Mathur was under a legal obligation to execute the lease deed for a period of four years in favour of counter claimant and similarly Smt.Madhu Mathur being the legal heir of Sh.V.N.Mathur is under the same legal obligation. Issue is accordingly decided in favour of counter claimant.
Issue wise discussion in main suit bearing no.313/09 is as follows. 25 Issue no.1:Whether the suit is bad for suppression of material facts?(OPP) In written statement, it was alleged that plaintiff has not approached the court with clean hands and suppressed the material facts in respect of the execution of MOU dt.25.6.01 and the tripartite Suit no.312/09/06 and 313/09/06 18 franchise agreement. In replication, the execution of these documents was admitted by plaintiff, though its validity was questioned. In order to assess the question of suppression of facts, court has to go into the pleadings and surroundings of the case. In plaint, it was specifically mentioned that letter dt.20.5.06 and notice dt.6.6.06 were issued by plaintiff to defendant which were duly replied. Its replies are filed on record, wherein it has been specifically stated by defendant that MOU and franchise agreement were executed. In view of the disclosure of facts about the notices and their replies, its clear that plaintiff was not intending to suppress any material fact. Issue is accordingly decided in favour of plaintiff and against the defendant.
26 Issue no. 2: Whether the suit is bad for misjoinder of the parties? (OPD) The main objection was that M/s.Amalgamated Bean Coffee Trading Co.Ltd. was not impleaded a party to the proceedings which was a proper and a necessary party. On 4.2.10, in the counter claim (suit no.312/09), statement was given by Sh.Arun Arora, Ld. Counsel for defendant for permission to delete the name of defendant no.2 from the array of parties of counter claim which itself indicates that in the opinion of defendant, M/s.Amalgamated Bean Coffee Trading Co.Ltd.was not a proper and necessary party in their counter claim. The main relief was claimed by plaintiff against defendant Wisec Global Ltd.in respect of possession of suit premises, recovery of rent and mesne profits/damages. As no relief was claimed against M/s.Amalgamated Suit no.312/09/06 and 313/09/06 19 Bean Coffee Trading Co.Ltd., in my opinion, it was not a proper and necessary party in the suit bearing no.313/09. Issue is accordingly decided in favour of plaintiff and against the defendant. 27 Issue no.3:Whether the suit is bad for the lack of cause of action?(OPD) The onus was upon the defendant. The suit for possession, recovery of mesne profits/damages was filed by plaintiff on the allegations that lease has expired by afflux of time after the expiry of lease deed Ex.PW1/2 and therefore plaintiff was entitled for possession and mesne profits/damages. Nothing material has been placed on record from the side of defendant in support of the issue to establish that suit is bad for lack of cause of action. The averments of the plaint has disclosed cause of action for filing of suit by plaintiff. Issue is accordingly decided in favour of plaintiff and against the defendant. 28 Issue no.4: Whether the plaintiff is entitled for possession of the suit property?(OPP) Onus of this issue was upon the plaintiff. Vide statement dt.24.12.10 Sh.Rakesh Rampal, one of the director of defendant Co.gave an undertaking that without prejudice to respective rights and contentions of the parties concerned, defendant Co.will vacate the tenanted premises/portion which is in exclusive possession of defendant Co. (except the portion of ground floor which is in possession of Suit no.312/09/06 and 313/09/06 20 M/s.Amalgamated Bean Coffee Trading Co.Ltd.). Otherwise also, as per admitted position of defendant even after renewal of lease deed, tenancy would have expired in May 2010 by afflux of time. Therefore, plaintiff is entitled for possession of tenanted premises which is in exclusive possession of the defendant. Issue is accordingly decided in favour of plaintiff and against the defendant.
29 Issue no.5:Whether the plaintiff is entitled for damages/mesne profits, if so, at what rate and for which period? (OPP) The onus of this issue was upon the plaintiff. In view of the above findings, after expiry of lease deed Ex.PW1/2 on 31.05.06 defendant was entitled for renewal of the lease deed for another four years with increase of rent by 20% above the last paid rent of Rs.90,000/ which comes to Rs.1,08,000/. Therefore, from 1.06.06 to 31.05.10 defendant is liable to pay @ Rs.1,08,000/ per month. After 31.05.10, even renewed lease deed would have expire and defendant would have no legal right to remain in possession of the tenanted premises, as tenant. With effect from 1.06.10, plaintiff is entitled for the mesne profits/damages assessed at market rate. I have gone through the testimony of PW2 Aashish Goyla, who deposed about the market rate of rent about property situated in Panchsheel Shopping Centre, DDA, Panchsheel Park, Delhi as well as the testimony of DWS. The property in question is situated in commercial complex Safdarjung Enclave, New Delhi which has no comparison with the commercial Suit no.312/09/06 and 313/09/06 21 property of Panchsheel Park, DDA Commercial Complex in respect of its location, amenities and rental value. Therefore, testimony of plaintiff and PW2 can not be accepted to assess the quantum of mesne profits/damages. Court may take judicial notice about the increase of rent in Delhi. As per findings of above mentioned issues, from the year 2001 to May 2010, the rate of rent reached from initial rent of Rs.75,000/ to Rs.1,08,000/ per month and the rent has increased approximately by 40%. In my opinion, the rate of rent must have been increased atleast @ 10% per year between 2006 to 2010. Therefore, the rent fixed in the year 2006 must have been atleast increased by 40% by the year 2010. Accordingly, in my opinion, plaintiff is entitled for mesne profits/damages @ Rs.1,51,200 (Rs. 1,08000 + 40% increase in Rent) w.e.f. 01.06.10 till the actual possession of the premises is being handed over to the plaintiff. Issue is according decided in favour of the plaintiff.
30 Issue no.6: Whether the plaintiff is entitled for interest, if so, at what rate and for which period?(OPP) Plaintiff has claimed interest @ 18% per annum. There is no agreement in respect of the rate of interest between the parties. No substantial evidence has been led in support of the rate of interest by PWS. Keeping in view the prevalent rate of interest in commercial banks as well as commercial transactions, in my opinion, ends of justice will be served, if plaintiff be allowed interest @ 12% per annum on the arrears of rent/damages/mesne profits. Issue is accordingly decided in Suit no.312/09/06 and 313/09/06 22 favour of plaintiff.
31 Relief in Suit no.313/09/06 a In view of the above findings, I am of the considered opinion that plaintiff is entitled for the rent @ Rs.75,000/ per month w.e.f. 1.6.01 till May 2004 and for the rent @ Rs.90,000/ per month from June 2004 to 31.05.06 in accordance with lease deed Ex.PW1/2. In view of the above findings, as defendant was entitled for renewal of lease deed for another four years in view of MOU, plaintiff is entitled for rent @ Rs.1,08,000/ per month w.e.f. June 2006 to May 2010. From June 2010, till the date of actual handing over the possession of the tenanted premises, plaintiff is entitled for damages/mesne profits @ Rs.1,51,200. On 6.8.10, it was stated by Ld.counsel for plaintiff that defendant has already paid the cheques for the rent till July 2010 in compliance of order dt.29.1.07 @ Rs.1,08,000/ per month after deducting TDS, from 1.6.06. Accordingly, the rent has already been paid upto July 2010 as awarded to the plaintiff in the suit.
Accordingly, suit is decreed in favour of plaintiff and against the defendant for payment of mesne profits/damages @ Rs.1,51,200/ per month w.e.f. June 2010 till the actual and physical possession of the tenanted premises handed over by the defendant to the plaintiff, subject to the adjustment of amount already paid by defendant to plaintiff for this period with interest @ 12% per annum from the due date of payments till date of actual payment.
Suit no.312/09/06 and 313/09/06 23 b Suit is decreed in favour of plaintiff and against the defendant for possession of tenanted premises comprising of basement, ground floor, first floor, second floor and third floor of property bearing no.B6/6 Shopping Centre, Safdarjung Enclave, New Delhi which is in exclusive possession of defendant (except the ground floor portion which is in possession and occupation of M/s.Amalgamated Bean Coffee Trading Co.Ltd.) Defendant is directed to hand over the actual and physical possession of the said tenanted premises to plaintiff by 31.3.11 as per statement/undertaking of Sh.Rakesh Rampal, one of the director of defendant Co.
c As it is held that defendant was entitled for renewal of lease deed in view of MOU for another four years, in my opinion, plaintiff is not entitled for the cost of the suit.
d In accordance with the undertaking given in para 15 of the plaint, plaintiff is directed to pay the deficient court fee on the amount of mesne profits/damages as awarded in favour of plaintiff within 30 days. Decree sheet be prepared accordingly in suit no.313/09/06 32 Relief in Counter claim (suit No.312/09/06) Though it has been held that plaintiff was entitled for renewal of lease deed for another four years after expiry of lease deed on 31.05.06, the extended period of lease would have expired on 31.05.10, Therefore, the relief of specific performance claimed by Suit no.312/09/06 and 313/09/06 24 defendant/counter claimant has become infructuous. As defendant was entitled for renewal of lease deed, the cost of the counter claim awarded in favour of defendant/counter claimant and against the plaintiff, Decree sheet be prepared accordingly in the counter claim bearing suit no.312/09.
33 Copy of the original judgment be placed in the file of main suit bearing no.313/09/06 titled as Madhu Mathur Vs. Wisec Global Ltd., whereas its photocopy be placed for records on the file of counter claim bearing suit no.312/09/06. Files be consigned to R/R after due compliance.
(SANJEEV JAIN) ADDITIONAL DISTRICT JUDGE9, (Central District), Delhi Announced in the Open Court Today : 04.02.11 Suit no.312/09/06 and 313/09/06 25