Delhi District Court
Dr. Onkar Singh Marwah vs M/S I. A. P. Company Ltd on 31 August, 2018
IN THE COURT OF SH. M.P. SINGH, ADDITIONAL
DISTRICT JUDGE03, (CENTRAL), TIS HAZARI COURTS,
DELHI
CS No. 283/16
New CS No.10840/16
Dr. Onkar Singh Marwah
S/o Late B.S. Marwah,
R/o 31, Hanuman Road,
New Delhi - 110001 ...... Plaintiff
Versus
1. M/s I. A. P. Company Ltd.
Palam Triangle, 2nd Floor,
Street A, Main Road,
Palam Vihar, Gurgaon, Haryana
2. India Action Plan Company Ltd.
210, DIA Palace, 1191,
Niban Cho, ChyodaKu, Tokyo, Japan.
3. Mr. Vipul Kant Upadhyay,
CEO & Managing Director, India Action Plan Company Ltd.,
Palam Triangle, 2nd Floor,
Street A, Main Road,
Palam Vihar, Gurgaon, Haryana ......Defendants
SUIT FOR RECOVERY OF MONEY
Suit instituted on 23.08.2007
Arguments heard on 07.08.2018
Judgment pronounced on - 31.08.2018
JUDGMENT
1. Plaintiff is a retired civil servant and a freelance consultant. Vide unegistered lease deed dt. 15.08.2000 (Ex.PW1/3) defendant no.1, through defendant no.3, took CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 1 of 32 property no. C6/59, Safdarjung Development Area, Delhi measuring 590 sq. yards on rent from the plaintiff. The lease was for a period of two years. The monthly rental was Rs. 50,000/ exclusive of water, electricity and other miscellaneous charges. Monthly rental was payable in advance or before 7 th day of each English calendar month. Written text of this lease deed (Ex.PW1/3) reflects that two months rent was payable as interest free security to the landlord. This lease deed also notes, "That the TENANT shall maintain the demised premises in perfect condition during the term of the lease and would carry out all the repairs at its own expenses, except for the need of any repair, construction or other work due to force mejeaure or structural or architectural defect of the house. The TENANT hereby acknowledges having received the possession of the demised premises in perfectly good condition, freshly painted and fixtures and fittings as per the list attached in Annexure I, attached herewith."
2. Vide a separate agreement dt. 15.08.2000 (Ex.PW1/4) defendant no.2, through Vikram Kant Upadhyay, hired plaintiff's advisory services in order to globally promote its business interests. For this, defendant no.2 agreed to pay Rs. 1 lac per month in equivalent Japanese Yen. It was however agreed that 'to keep the initial cost to IAP on the lower side' Rs. 75,000/ per month would be paid for the first eight months, Rs. 1 lac per month for the next eight months and Rs. 1,25,000/ per month for the last eight months.
3. Pursuant to the aforesaid two agreements, defendants CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 2 of 32 started to remit the rent of the premises as well as make the payment for the consultancy services to the plaintiff. The aforesaid two agreements were renewed from time to time. They were lastly renewed vide two separate agreements both dt. 15.08.2005 (Ex.PW1/6 and Ex.PW1/7 respectively). Both the agreements were extended for two years. The lease deed Ex. PW1/6 was unregistered and executed on stamp paper of Rs. 50/. Monthly rent was enhanced to Rs. 60,000/ per month and the consultancy charges to Rs. 1,30,000/ per month with the other terms and conditions as stipulated in the initial agreements dt. 15.08.2000 remaining the same.
4. Relevant would it be to note that the Lease Deed dt. 15.08.2005 (Ex.PW1/6) contained a clause, which read as follows: "Whereas the LANDLORD and TENANT have agreed upon mutually to extend the lease deed for a further period of two years starting 15 th August 2005.
However, neither party will terminate this extension of the Lease Deed for the first twelve months and thereafter either party could terminate the said Lease Deed with a written advance notice of three months given to the other Party, notifying their intention to do so."
5. Further, the Consultancy Agreement (Ex.PW1/7) contained a clause, which read as follows: "The Company would like to extend the advisory services of the Consultant for a further period of two years beginning from August 15, 2005. However, for the first twelve months the Company will not terminate the services of the Consultant and thereafter either party could terminate this agreement CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 3 of 32 with a written advance notice of three months given to the other side, notifying their intentions to do so."
6. To plaintiff's shock and surprise, defendant no.1 through defendant no.3, vide its letter dt. 11.03.2006 (Ex. PW1/8) terminated the lease agreement and desired to vacate the premises on 11.04.2006. Defendant no.1 finally vacated the premises on 15.05.2006. After vacation of the aforesaid premises, payment of plaintiff's consultancy charges, which was very irregular since long, was discontinued by defendant no.2 sans any notice/intimation. As per the plaintiff, the termination of the lease as also discontinuation of his consultancy services was in violation of the terms and conditions of the agreements (Ex. PW1/6 and Ex. PW1/7), which agreements could not have been terminated prior to 14.08.2006.
7. Further, to plaintiff's shock the defendanttenant left behind the demised premises in shambles, with the doors ripped off, toilets and other sanitary fittings broken and removed, electric wirings carried away, seepage in the walls and roof, floorings and tiles uprooted, carpets removed etc. Defendant tenant also left the surrounding garden in bad shape with all the ornamental and other valuable plants uprooted. Imported lush green grass became dry due to constant usage of the garden as common path. Defendanttenant had also left unpaid substantial bills for the water, electricity and telephone. Defendanttenant during the subsistence of tenancy had not got the premises whitewashed or painted. That apart, defendant tenant had also made an unauthorized addition on the roof of the house and damaged the waterproofing due to which there CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 4 of 32 was substantial water seepage in the ceilings and walls.
8. Plaintiff could not commence the repair work of the property inasmuch as both the essential utilities of carrying out the repair work i.e. water and electricity, remained disconnected due to nonpayment of dues thereof by defendant tenant. It was only after the plaintiff pursued the officials of defendanttenant that latter cleared the outstanding electricity and water dues by the end of June 2006.
9. On 22.06.2006 plaintiff brought a government approved engineer and valuer for assessment of the damage caused to the premises by the defendanttenant. The valuer prepared a detailed report as also a detailed video CD. Plaintiff avers that valuer's report and the video CD clearly reflects that defendant tenant had left behind the property in shambles. Vide letter dt. 15.05.2006 (Ex. PW1/10) defendanttenant undertook to pay the utility dues. Plaintiff sent a communication dt. 24.07.2006 (Ex. PW1/11) to Mr. Vipul Kant Upadhyay (defendant no.3) whereby he intimated the latter about the extent of damage caused prior to vacating the demised premises and that the termination of the lease as also the Consultancy Agreement within a year of their execution was illegal and malafide. Defendants sent no replies. Plaintiffs sent reminders dt. 31.08.2006 (Ex. PW1/12) and 05.10.2006 with a request to settle the financial matters and pay the outstanding dues. Then a meeting was held between plaintiff and defendant no.3 at Gurgaon office of defendant companies. In the meeting plaintiff was given an assurance that the defendant company would reconsider all the CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 5 of 32 issues and respond within a week. However the defendants did not so respond. Plaintiff finally issued a legal notice dt. 02.03.2007 (Ex. PW1/14) to defendants no. 2 and 3, to which defendant no. 3 and I. A. P. Company Ltd. responded vide reply dt. 18.03.2007 (Ex. PW1/15). As there were certain clerical errors in the legal notice dt. 02.03.2007, plaintiff issued another legal notice dt. 30.04.2007 (Ex. PW1/18). Thereupon, defendant no. 1, vide its response dt. 21.05.2007 (Ex. PW1/17) informed plaintiff's counsel that D2 Company does not exists at the Gurgaon address.
10. In his plaint, plaintiff also makes the following averments: Defendants no.1 and 2 are the Companies/Legal entities working for gain in India and Japan, respectively and the defendant no. 1 company was represented to be a sister concern / wholly owned subsidiary company of defendant no. 2 company, having its operations in India. While defendant no. 2 company was functional mainly in Japan, but all its affairs in India were being managed and taken care of by defendants no. 1 and 3 and it had been represented that for all purposes concerning and relating to defendant no. 2 company, defendants no. 1 and 3 shall be responsible. Defendant no. 3 represented himself to be the CEO and Managing Director of the defendant company and was/is responsible for all the administrative and other functions including the day to day affairs of the defendant company. It is submitted that it is the defendant no. 3 only, who had signed and executed all the documents for and on behalf of defendants companies and had exchanged and forwarded all kind of correspondence etc. on behalf of aforesaid two companies.
11. As per the plaintiff following amounts are due against the CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 6 of 32 defendants, who are jointly and severally liable, to pay the same:
(a) Amount due and payable on Rs. 11,96,705/ account of rent and consultancy services
(b) Amount due and payable on Rs. 9,58,241/ account of damages caused to the demised premises and its resultant repairs Total Rs. 21,54,946/
12. Plaintiff however seeks to recover only Rs. 20 lacs from the defendants jointly and severally together with interest thereon @ 18% per annum with effect from 15.05.2006 till the date of its actual payment.
13. Defendants no.1 and 3 filed their written statement on 16.10.2007. They admit that defendant no.1 had taken the premises on rent at monthly rental of Rs. 50,000/ vide lease deed dt. 15.08.2000 for two years. They also admit that lease was renewed on 15.08.2005. They further state that they served notice (Ex. PW1/8) on the plaintiff on 11.03.2006 and vacated in May 2006. They however submit that contrary to terms of the lease deed dt. 15.08.2000 the demised premises had not been delivered in perfectly good condition and with a fresh coat of paint. They also submit that the premises had been lying vacant for several years and after taking over its possession defendant no.1 incurred substantial expenditures to renovate and bring it up to the desired standard. They go on to submit that during the entire tenure of the lease, defendant no.1 spent exorbitant amount in upkeep and renovation of the premises from time to CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 7 of 32 time. They state that plaintiff, who stays in Switzerland, had requested defendant no.1 to do the renovations at its own cost as he (plaintiff) represented that it was not possible for him to renovate or even upkeep the said premises. They assert that they maintained the premises in perfectly good condition, which was even better than the condition at the time of inception of the lease. During the course of occupation, the defendant tenant, it is stated, carried out diverse repair and maintenance works such as painting and polishing, whitewash, wood work and replacement of wood work damaged by termite. Termite infested plywood door(s), it is stated, were replaced with glass doors, which were left behind. However, in paragraphs 1011, it is stated, glass doors, used to replace the termite infested plywood doors, were removed at the time of vacating the premises. Glasscumteakwood partitions erected by defendant tenant were also removed at the time of vacating the premises. Old rusted door handles were replaced by brass handles, most of which were left behind. Old and out of fashion windows were replaced by aluminium windows which too were left behind. It is asserted that contrary to plaintiff's claims, defendanttenant planted plants and enhanced the garden. Further, as per the them, the house was uncarpeted at the time of inception of the lease and the carpets were consequently removed. Socalled unauthorised additions on the roof is stated to be only a temporary asbestos shed. Plaintiff's assertions as regards water proofing and seepage are denied. Defendanttenant had brought various articles which it left behind such as: (a) Gas connection,
(b) Fans, (c) Four new locks, (d) Garage doors, (e) Front teak CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 8 of 32 door, (f) Water pump, (g) Kitchen marble tops, (h) Aluminium fittings, (i) Cylinder, (j) Wooden main gate, (k) Aluminium pantry fittings, (l) Guard room etc. It is claimed that defendant tenant got the premises cleaned before handing over the same to the plaintiff. At the time of vacating the premises, it is stated, as the plaintiff was not satisfied with the cleaning due to presence of stain marks, defendanttenant engaged labourers and got the entire premises cleaned professionally for 34 days under the personal supervision of Mr. Raghubir Dongre, GM (Administration) and the former had then expressed his satisfaction. It is pointed out that the plaintiff lodged no police complaint regarding the alleged destruction of property. Defendanttenant filed several photographs in support of its averment that the premises were maintained and kept in good condition when under it. It is alleged that the damage, as borne out from plaintiff's photographs, is the outcome of plaintiff's own handiwork. The purported detailed videoCD allegedly prepared by the valuer is nothing but a CD of photographs taken after the plaintiff resorted to dismantling and alterations. Plaintiff allegedly wanted to convert the premises into a guest house and for this purpose, after its vacation, he dismantled the same for its conversion to a guest house. Plaintiff's photographs are stated to have been taken at the time when it was in the process of being converted into a guest house. Plaintiff had allegedly earlier approached defendanttenant and offered a proposal to convert the premises into a guest house and to run the same on partnership basis.
14. Defendants no.1 and 3 further aver that plaintiff, a CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 9 of 32 retired senior civil servant, would not have waited for such long time to raise such trifle issues and that it was only subsequently that he blew the whole issue out of proportion and claimed damages to the tune of Rs. 10 lakhs. It is pointed out that, in fact perusal of plaintiff's email dt. 11.04.2006 would show that he had only requested for cleaning up and making the house presentable besides other claims regarding outstanding payments of electricity and water and few minor issues, but the said email nowhere suggested that the claims could be to the tune of Rs. 10 lakhs. It is also pointed out that reply dt. 15.05.2006 of defendant no.1 also clarifies that the issues between the parties had been settled. It is alleged that inflated claims are a malafide afterthought to extract undue amounts; that no dispute was raised at the time of handing over of possession would reflect that the plaintiff's claims are an afterthought; that plaintiff's demands were ever increasing and comparison of his email dt. 11.04.2006 with his letter dt. 05.10.2006 would reflect the same; that his letter dt. 05.10.2006 would show that there were no claims raised by him to the extent as it appears in the plaint and that he raised the bogey of the house being in shambles only to misappropriate the security amount of Rs. 1 lakh.
15. As regards the provision for lockin period, defendants no.1 and 3 submit that the same was inserted in the lease deed at their request only for the reason that they wanted an assurance that lease would not be terminated within a short span of time. Although, the plaintiff, it is stated, agreed to incorporate the provision for lockin period, the same was CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 10 of 32 worded differently and they (defendants no.1 and 3) were assured at the time of execution of the lease deed that the provision for lockin period was only for their protection. It is added that the lease deeds made no provision for any penalty in the event of breach of the provision for lockin period.
16. Now to the stand of defendant no.1 and 3 as regards utility bills. Telephone bills stand paid till 31.03.2006 and water bills till 28.03.2006. Electricity bills are stated to have been paid on time. Final electricity bills were not received at the time of vacating the premises. Defendanttenant also paid the property tax on plaintiff's behalf. Defendants no.1 and 3 seek dismissal of the suit.
17. Besides the aforesaid, defendants no.1 and 3 take the following legal objections. It is stated that the suit is bad for misjoinder of parties and misjoinder of cause of action. It is submitted that defendant no.1 and defendant no.2 are distinct and separate legal entities. Defendant no.1 is stated to be a company registered under Indian Companies Act, whereas defendant no. 2 a company, situated at Tokyo, is stated to be registered under laws of Japan. They aver that reliefs sought for arise out of separate transactions; one arising out of lease agreement and the other one out of consultancy agreement. It is urged that defendant no.3 has been incorrectly represented as Managing Director of defendant no.2. They point out that the two lease deeds dt. 15.08.2000 and 15.08.2005 are unregistered and the latter lease deed is deficiently stamped. They submit that they have nothing to do with plaintiff's claims arising out CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 11 of 32 of Consultancy Agreement and which claim is actually directed against defendant no.2.
18. Defendant no.2 was served by way of publication in overseas edition 'The Statesman Weekly' dt. 02.05.2009. Defendant no. 2 did not appear. Neither did it file its written statement. Consequently, its defence was struck off vide Order dt. 02.11.2010.
19. Plaintiff filed replication on 13.01.2010 to the written statement of defendants no.1 and 3 wherein he reiterated his averments as set out in the plaint and refuted those of the latter.
20. Issues framed on 02.11.2010 are as follows:
1. Whether suit is bad for misjoinder of parties? OPD1
2. Whether suit is bad for misjoinder of cause of action?
OPD3
3. Whether plaintiff is entitled to decree of Rs. 20 lacs apart from interest @ 18% p.a.? OPP
4. Relief.
21. In plaintiff's evidence, plaintiff (PW1) was his sole witness. In defendants' evidence Sh. Taras Jain {Manager (operations) of defendant no.1 company} was examined as DW1.
22. Arguments heard. Record perused.
23. Issuewise findings are as follows.
24. Issue no.3 - Plaintiff claims Rs. 9,58,241/ towards damages caused to the demised premises and its resultant CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 12 of 32 repairs. Breakup (Ex. PW1/13) of this claim, as per the plaintiff, is as follows:
Building material Rs. 1,23,350/
Wages for masons and Rs. 2,20,410/
labourers
Electrical materials Rs. 96,286/
Wages for electrical work Rs. 43,500/
Plumbing Rs. 1,84,283/
Tiles Rs. 14,010/
Marbles Rs. 12,493/
Wages for Carpentary Rs, 24,500/
Wood etc. Rs. 48,35/
Malba Hire Charges Rs. 15,470/
Consumables Rs. 7852/
Conveyance Rs. 4,787
Painting Material Rs. 95,500/
Painter's wages Rs. 48,000/
Marble floor ghisai Rs. 18,450/
Total Rs. 9,58,241/
25. Plaintiff relied heavily upon the lease deed dt. 15.08.2000 (Ex. PW1/3) to contend that the premises had been 'let out in perfectly good condition, freshly painted and with fixtures and fittings as per the list attached in AnnexureI'. This lease deed was further heavily relied upon to contend that the defendant tenant was under an obligation to deliver back the possession CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 13 of 32 with 'all the fittings and fixtures as per the list attached in AnnexureI'. Lease deed dt. 15.08.2005 (Ex. PW1/6) on this aspect merely noted that all other terms and conditions would remain the same as the previous lease deed dt. 15.08.2000 (Ex. PW1/6). Both the lease deeds were for two years. In terms of section 107, Transfer of Property Act and section 17, Registration Act both the lease deeds required compulsory registration. Having not been so registered, proviso to section 49 of Registration Act would come into play and it can only be used as an evidence for collateral transaction/purpose. In K.B. Saha and Sons Private Limited vs. Development Consultant Limited, (2008) 8 SCC 564 it was held that a document required to be registered, if unregistered, is not admissible in evidence under section 49, Registration Act; though it can be used as evidence for collateral transaction/purpose as provided in the proviso to section 49 of the said Act but such collateral transaction must be independent or divisible from the transaction which required registration and must not be itself registrable. It was yet further held that use of an unregistered document to prove an important clause thereof would not be a use for collateral purpose. Therefore, in the instant case the clauses of the lease deeds which are sought to be very heavily relied upon by the plaintiff cannot be read in evidence on account of the bar of section 49, Registration Act.
26. At this stage, argument of the defendanttenant about deficient stamping of the lease deed dt. 15.08.2005 (Ex. PW1/6) is also required to be taken note of. This lease deed dt.
CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 14 of 3215.08.2005 (Ex. PW1/6) was executed on stamp paper of Rs. 50/. This is clearly deficiently stamped. However, inasmuch as this document has already been admitted into evidence, this Court cannot now invoke section 33 of Indian Stamp Act, 1899 to impound the same. Section 36, Indian Stamp Act, 1899 mandates that once a document has been admitted into evidence, such admission cannot be called into question at any stage of the same suit on the ground that it was not duly stamped, except as provided in section 61 thereof. In the case at hand there is absolutely no question of any application of section 61, Indian Stamp Act, 1899.
27. In his plaint, plaintiff states that defendanttenant finally vacated the premises on 15.05.2006, whereas as per written statement of defendanttenant premises was vacated in May, 2006, with no specific date. There is on record a letter dt. 05.10.2006 (annexed with the letter dt. 31.08.2006) that was placed on record by the plaintiff himself together with the plaint. This letter is addressed to Mr. Vipul (defendant no.3). This letter dt. 05.10.2006 of the plaintiff mentions that 'the house was physically vacated in April, 2006'. Further, defendanttenant in its letter 11.03.2006 (Ex. PW1/8) addressed to plaintiff had stated that the premises would be vacated by 11.04.2006. Plaintiff in his email dt. 11.04.2006 (Ex. PW1/9), inter alia, alleged the premises to be in shambles. And he could not have possibly made such an allegation without physical possession of the premises having been handed over to him. What therefore appears from the pleadings and the documents on record is that the while the defendanttenant may have CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 15 of 32 formally vacated the premises in May 2006, its physical vacation was done in April, 2006.
28. Plaintiff in his email dt. 11.04.2006 (Ex. PW1/9) while alleging that the premises was in shambles had raised the following issues: (a) Clean up and make it presentable by 13.04.2006, (b) 13 new ceiling fans, (c) Return of original teakwood main entry door which was replaced with glass door; whereas the replacement currently being fitted is of plywood (which is very perishable), (d) Staff of defendanttenant carried away (provided by plaintiff) gas cylinder, its regulator and accompanying cooker, (e) Payment of utility dues, and (f) Clearing other overall accounts, rentals etc. Therefore, at the time of physical vacation and physical handing over of possession of the premises, plaintiff had only these issues with the defendanttenant. It is also clear that as regards the damage done to the premises, the only grievance of the plaintiff as on 11.04.2006 was that it was required to be cleaned up and made presentable, return of original teakwood main entry door as also 13 new ceiling fans and return of gas cylinder together with a regulator and a cooker. This email nowhere suggests that the claim on account of renovation could shoot up to as high a figure as more than Rs. 9 lakhs. That apart, the record would indicate that plaintiff over a period of time kept on inflating his claims. There is on record a letter dt. 15.05.2006 (Ex. PW1/10) of defendanttenant (written by Mr. Raghuvir Dongre, G.M., Administration) addressed to the plaintiff. This letter stated, "(1) Electricity bill duly paid up to May, 2006, (2) Telephone bill duly paid up to March, 2006, and (3) Water bill CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 16 of 32 duly paid up to March, 2006." Further, this letter dt. 15.05.2006, inter alia, notes, "Apart from above we would like to confirm that we have given you possession of all the items taken by us from you at the time of possession like gas cylinder, fans and jet pump." At the bottom of this letter dt. 15.05.2006 (Ex. PW1/10) Mr. Raghuvir Dongre in his own handwriting writes, "We also undertake to pay any dues that may be assessed/demanded against items 1, 2 & 31 above by the utilities/ companies concerned up to and including May 13 th, 2006 or up to the billing cycle for May, 2006." It was in fact the plaintiff who had made Mr. Raghuvir Dongre write the handwritten portion at the bottom of this letter dt. 15.05.2006 (Ex. PW1/10) and he (plaintiff/PW1) very much admits this in his crossexamination. The point therefore is that even as on 15.05.2006 there was no indication from the side of the plaintiff that the alleged damage done to the premises was such that its renovation cost could shoot up to as high a figure as more than Rs. 9 lakhs. It is also pertinent to mention that together with this letter dt. 15.05.2006 (Ex. PW1/10) there is a sheet attached indicating several items that were handed over to the plaintiff and various other things done like removal of junk, cleaning etc. This document would show that premises had been cleaned and the junk thrown out. This document would further show that plaintiff was given back the garage door, front teak door, water jet pump, kitchen marble tops, aluminium fittings, wooden main gate, chandelier and further that 4 locks were to be purchased and handed over to him. It cannot go unnoticed that 1 'Items 1, 2 and 3' refer to electricity, telephone and water bills respectively.
CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 17 of 32in response to the letter dt. 15.05.2006 (Ex. PW1/10) plaintiff never wrote any protest letter to the defendanttenant. For the next two months there was no correspondence whatsoever as regards the alleged damage to the premises. A tenant, under the given circumstances, cannot be faulted in taking this quietus for the next more than two months to mean that the issues had been resolved to landlord's satisfaction. It was only more than 2 months later that plaintiff wrote (dt. 24.07.2006 Ex. PW1/11) to Mr. Vipul Kant Upadhyay (defendant no.3), inter alia, alleging as follows, "The vacation of the premises by IAP Co. Ltd. was carried out in such a way as left building without doors, locks, WCs, faucets, even sink drain pipes. Glued carpeting had been removed, but not the gluerequiring substantial expenditure at my end to clean the floor surface inch by inch. The work still awaits completion, and the expenses for the same continue to mount. (Photos are available of the interiors of the building, taken after vacation by IAP Co.)" This only reflects that plaintiff after more than three months of physical handing over of the premises was raking up issues that were not raised when the premises were physically handed over in April, 2006, on 11.04.2006 and thereafter on 15.05.2006. The point is if the building had been denuded of its doors/locks, faucets, WCs and sink drain pipes, why was the same not immediately pointed out to the defendanttenant on 11.04.2006 or on 15.05.2006 or at any rate within a reasonable time. If a building stands stripped of its most basic things like doors/locks, faucets, WCs and sink drain pipes, the same is instantly noticeable. Going by normal course of human conduct, CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 18 of 32 a landlord would immediately invite attention of his defendant tenant visàvis such instantly noticeable features. For this, a landlord would not wait for several months. The considerable delay on this count is unfathomable. Plaintiff fails to offer a reasonable explanation, much less any explanation, for this inordinate delay. This only reflects, on preponderance of probabilities, that there is something more to it than what the plaintiff would like this Court to believe. Further, it is difficult to comprehend as to by what yardstick the cost for replacement of doors/locks, faucets, WCs and sink drain pipes in the premises, way back in year 2006, would have been more than Rs. 9 lakhs. Not only this, there was no indication in this communication dt. 24.07.2006 that cost of renovation would be as high as more than Rs. 9 lacs. Then there is plaintiff's letter dt. 31.08.2006 (Ex. PW1/12) addressed to defendant no.3 stating, 'formalization of your Company's vacation of my house remains to be done with reference to the paperwork and financial dues thereof'. This again gives no indication even remotely that renovation cost could be as high as more than Rs. 9 lacs.
29. Next, in his communication dt. 05.10.2006 addressed to Mr. Vipul (defendant no.3), plaintiff, inter alia, writes: "3) Vacation Date Determination While the house was physically vacated in April 2006, the electricity/water remained cut off till endJune/midJuly 2006. Without these essential services the property was uninhabitable and unrepairable. Further, under the lease deed, neither party could terminate the same short of one year, i.e. August 2006. In the circumstances, endJune CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 19 of 32 2006 is a reasonable date by when to see the physical return of property to me as that is when the essential services were made available. This leaves a mere period of six weeks - 1st July to August 15 2006 - to deal with. I have suggested that we split this half between us, in relation to dues, and end the matter amicably.
4) IAP addition to SDA house As is obvious, these modifications were undertaken for needs of IAP, and I have no objection to their removal and repossession by IAP."
As the issues are, in the end, minor, both in form and financial outlay, for an established company such as IAP, I think we should be able to make to settle the matters easily and fairly."
30. This communication dt. 05.10.2006 again does not indicate in any manner that the cost of repairs would have been as high as more than Rs. 9 lacs. Further, this communication does not also give details of the damage done to the premises. It merely states that the premises was 'uninhabitable and unrepairable'. Further, this communication would indicate that the issues, to plaintiff's belief, were 'minor' at the end of the defendanttenant. Given this, it is difficult to reason out as to how the cost of repairs escalated to more than Rs. 9 lacs. Therefore, one can only assume that as on 05.10.2006 there was no other damage to the property, going by plaintiff's case, except for the ones as set out in letter dt. 24.07.2006 (Ex. PW1/11) and which were that the premises had been stripped off its doors/locks, WCs, faucetes and sink drain pipe besides cleaning of glue on the floor. After this communication dt. 05.10.2006, the plaintiff straightaway issued legal notice dt. 02.03.2007 (Ex. PW1/14) demanding Rs.12 lacs towards the damage and the CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 20 of 32 resultant repairs. As to how this figure of Rs. 12 lacs arrived at was not set out in this legal notice. The circumstances hereinabove would clearly indicate that plaintiff has resorted to huge inflation of the costs. And that too without there being no indication at any point of time about such hugely inflated costs. Plaintiff stuck with this cost of Rs. 12 lacs even in his subsequent legal notice dt. 30.04.2007 (Ex. PW1/18). Further, it is not explained as to how the cost for repairs which was Rs. 12 lacs in March/April, 2007 came down to a little over Rs. 9 lacs in the plaint. This only shows that the plaintiff has not been consistent with the amount of money invested by him in the repairs. He was only resorting to his own whims and fancies.
31. Plaintiff's claim is doubtful from yet another perspective. Plaintiff has annexed various bills in support of his claim. A scrutiny of few of the bills would reflect that the plaintiff has charged the defendanttenant with certain things for which the latter could possibly have no relation. In one of the bills of Sohi Engineers dt. 19.01.2007 there is an expense of Rs. 7,500/ towards sewer and manhole fitting works. It is difficult to understand as to why this amount was charged on to the defendanttenant. The defendanttenant could not have possibly damaged the manhole. Further, in another bill of Sohi Engineers dt.18.10.2006 at serial no. 18 there is an item "manhole.... (not legible)" and for which there is a expense of Rs. 3,500/. In another bill of Sohi Engineer dt. 24.08.2006 there is yet again an expense of Rs. 950/ towards "manhole.... (not legible)" and another expense of Rs. 15,600/ for '208 feet boring 4''. It is difficult to comprehend as to what could the defendant CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 21 of 32 tenant have any relation with these kinds of expenses. Manhole fitting works are shown to be done repeatedly sans any plausible explanation. And veryvery strangely enough, this bill dt. 24.08.2006 of Sohi Engineers is in respect of property no. C 6/56, S.D.A., Hauz Khas, N. Delhi. On record, there are some bills sans any name and property number (two bills of Standard Electricals dt. 30.06.2006 and 24.07.2006). Further, there are on record some documents purporting to be 'bills' on just ordinary sheets of paper giving no indication absolutely as to who/which shop issued them, in whose favour were they issued, on what date were they issued and whether payments in respect thereof were actually made or not. Plaintiff's bills and documents purporting to be 'bills' are therefore to be viewed with doubt.
32. Next, plaintiff in his plaint averred that on 22.06.2006 he had the premises examined after its vacation through a government approved engineer/valuer for the assessment of damage. This government approved engineer/valuer did not step into the witness box. Plaintiff neither sought to summon him as a witness. Neither did any of the persons who had issued the bills or documents purporting to be 'bills' step into the witness box.
33. Further, the bills/invoices and documents purporting to be 'bills' would indicate that there was a major facelift given to the premises and all the expenses in respect of such facelift are sought to be charged on to the defendanttenant. The defendanttenant cannot possibly be charged with the expenses of such a major facelift. The plaintiff, being the owner of the CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 22 of 32 premises, would have to bear such expenses himself. Further, whenever there is a change in the occupancy, there is inevitably some amount of disruption. Even in a newly built house, freshly furnished, some amount of cleaning here and there and some amount of minor works would have to be inevitably made by the occupant so as to suit his own personal requirements.
34. On a consideration of all the facts and circumstances, this Court, on preponderance of probabilities, is of the view that plaintiff's claim on this score to the tune of more than Rs. 9 lacs ought to be turned down. This cost is certainly not a genuine estimate of the socalled damage done to the premises by the defendanttenant. However, the plaintiff may appropriate a very reasonable amount, to the extent indicated in paragraph no. 36 of this judgment, towards the repair costs of the premises.
35. Next, plaintiff claims rental arrears of the premises. Plaintiff in his plaint does not specify till what period did he receive the rent. However, from the documents on record filed by plaintiff, it would appear that Rs. 60,000/ was remitted to him on 01.03.2006. Copy of TDS certificate and a calculation sheet filed on record by the plaintiff {forming part of Ex. PW1/12 (colly)} would reflect that rentals till March, 2006 was paid. In other words, documents on record would indicate that rentals with effect from 01.04.2006 was not paid. It also appears from the calculation sheet filed on record {forming part of Ex. PW1/12 (colly)} by the plaintiff that he claims rentals till 15.08.2006. As already noted hereinabove, the date of actual physical handing CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 23 of 32 over of the premises was on 11.04.2006; whereas the formal date of vacation as per the plaintiff was 15.05.2006 and as per the defendant it was May 2006 with no specific date. Plaintiff is making this claim of the rentals till 15.08.2006 on the basis that the lockin period in the lease deed (Ex. PW1/6) was 1 year, and which 1year was to expire on 15.08.2006. The moot question now is whether the clause in the lease (Ex. PW1/6) qua the lock in period can be read in evidence. Answer to this has to be in the negative. In terms of the proviso to section 49, registration Act, 1908 and in terms of the ratio decidendi of K.B. Saha and Sons Private Limited (supra) such a provision for lockin period in the lease deed(s) cannot be read in evidence. There is one more reason to it. Since the lease deeds were unregistered, the tenancy would be only on a month to month basis in line with the decision of Payal Vision Limited Vs. Radhika Choudhary, (2012) 11 SCC 405 wherein it was observed, "The defendanttenant did not have the benefit of a secure term under a registered lease deed. The result was that the tenancy was only a month to month tenancy that could be terminated upon service of a notice in terms of section 106, Transfer of Property Act." This would be so irrespective of defendanttenant's admission in the written statement about the lockin period in the lease deed(s). Admission of the defendanttenant qua the lockin period in lease deed(s) will not make the same registered document(s) and consequently the bar of proviso to section 49, Registration Act would continue to operate. Such an admission would not again alter the legal position that the tenancy will have to be taken on month to month basis as the lease deed(s) CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 24 of 32 were unregistered. Consequently, the provision for lockin period will not be read in evidence. In tune with section 106, Transfer of Property Act, the tenancy has to be taken on month to month basis determinable by 15 days' notice. Resultantly, plaintiff would get the rental arrears only for the period from 01.04.2006 till its vacation. The date of vacation as per the plaintiff was 15.05.2006 and as per the defendant it was May 2006 with no specific date. Given this, 15.05.2006 is being taken to be the date of formal vacation of the suit property by defendanttenant. Consequently, the plaintiff is liable to receive Rs.90,000/ only from the defendanttenant towards rental arrears.
36. In the case at hand, defendanttenant had advanced a security of Rs. 1 lacs to the plaintiff at the time of inception of tenancy. This was so averred by defendants no. 1 and 3 in their written statement in paragraph no. 15 of their reply on merits. To this, there is no specific denial by the plaintiff in his replication. In the corresponding paragraph of his replication, the plaintiff stated that lease deed was a matter of record. He went on to deny the allegations of defendants no.1 and 3 that he had raised the bogey of his house being in shambles only to misappropriate the security amount of Rs. 1 lac. Further, plaintiff's calculation sheet {forming part of Ex. PW1/12 (colly.)} at serial no. 7 states, "Settlement of Security Deposit - Bilaterally." In the evidence it has not at all come anywhere that security money of Rs. 1 lacs, as averred by defendant tenant in the pleadings was not advanced. The material on record, independent of the lease deeds, very much indicates, on CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 25 of 32 preponderance of probabilities, that defendant-tenant had advanced a security of Rs. 1 lac at the time of inception of the tenancy to the plaintiff. The plaintiff may adjust the rental arrears of Rs. 90,000/ out of the security amount of Rs. 1 lac. The remaining Rs. 10,000/, out of the security amount, may be adjusted towards that damage to the premises in question. Thus, on account of rental arrears the plaintiff is not entitled to recover any money from the defendanttenant.
37. Plaintiff next claims consultancy charges from the defendants. In the plaint and in his evidence by way of affidavit plaintiff has not at all specified as to what exact amount is due to him on account of consultancy charges. He has merely given a figure of Rs. 11,96,705/ as the consolidated amount due on account of rental arrears and consultancy charges, without there being any bifurcation of the two. He also does not specify in his plaint and in his evidence by way of affidavit as to how much, out of the claim towards consultancy charges, is towards the past arrears and how much is due for the future payment because of the lockin period. Plaintiff has left this for the Court to decipher for itself on the basis of a calculation sheet that he has filed and which is part of Ex. PW1/12 (colly).
38. As per the plaintiff, defendants are liable to pay him consultancy charges at the rate of Rs. 1,30,000/ per month for the period from 15.08.2005 to 15.08.2006. Some amount out of this, going by plaintiff's calculation sheet, appears to have been paid. As per this calculation sheet plaintiff had received foreign currency 3717 equivalent to Rs. 1,38,540/ and foreign currency CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 26 of 32 10343 equivalent to Rs. 3,85,505/ on 02.01.2006 and 02.02.2006 respectively. For the period prior to 15.08.2005, the aforesaid calculation sheet would reflect, foreign currency 3109.15 equivalent to Rs. 1,15,750/ is due in respect of the consultancy charges. The plaintiff in this calculation sheet does not specify as to which foreign currency does he refer. Whether foreign currencies, as referred to in his calculation sheet, are in Japanese Yen and Swiss Franc is not clear. One could only guess, going by the two Consultancy Agreements, that for the period prior to 15.08.2005 the foreign currency would Japanese Yen and the one thereafter would be Swiss Franc. It is also not clear anywhere from this sheet as to what conversion rate into Indian Rupee was applied by the plaintiff. On these fundamental aspects, plaintiff's case is absolutely vague and shorn of the necessary details. It is also vague from yet another perspective. Plaintiff, going by this calculation sheet, claims arrears of consultancy charges to the tune of foreign currency 3109.15 equivalent to Rs. 1,15,750/ for the period prior to 15.08.2005. However, the plaintiff does not specify anywhere as to which specific month(s) do the arrears pertain to. He has filed no document whatsoever to clear this confusion. It may very well happen that the arrears of consultancy charges, or a portion thereof, may be for the period prior to three years of filing of the suit. It may be mentioned that under section 3, Limitation Act Court has to look into the aspect of limitation irrespective of whether the same has been raised as a defence or not.
39. Even if plaintiff's claim as regards consultancy charges be CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 27 of 32 accepted as the gospel truth, yet defendants no. 1 and 3 would not at all be liable. The two consultancy agreements Ex. PW1/4 and Ex. PW1/7 would reflect that they were between defendant no.2 and plaintiff. Defendant no.1, which is a separate corporate entity, has no concern with defendant no.2. Defendant no.1 and defendant no.2 are separate corporate entities, therefore, one cannot be bound for the liabilities of the other. Similarly, defendant no.3, who is a private individual, cannot be personally bound for the liabilities of defendant no.2. The mere fact that Mr. Vipul Kant Upadhyay (director of defendant no.1) is the real brother of Mr. Vikram Kant Upadhyay (director of defendant no.2) will not ipso facto, under the law, fasten liability of one corporate entity on another corporate entity. The fact that Vikram Kant Upadhyay was the brother of Vipul Kant Upadhyay surfaced for the first time, not in the pleadings, but in plaintiff's written final arguments. Further, the fact that the two lease deeds and the two consultancy agreements were signed on the very same day will also not suffice to fasten civil liability of one corporate entity on to another corporate entity. It was plaintiff's argument that defendant no.1 company and defendant no.2 company were 'sister concerns' of each other. Even if they were sister concerns, yet liability of one corporate entity will not be fastened on to another corporate entity. Furthermore, it is none of the case of the plaintiff that the lease money in respect of premises taken on rent by defendant no.1 used to be paid out of the coffers of defendant no.2. It is also none of plaintiff's case that he used to receive the fee qua the consultancy agreements from the coffers of defendant no.1 CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 28 of 32 company. Accordingly, defendants no.1 and 3 are under no liability to pay any dues of consultancy services to the plaintiff.
40. This leaves us with defendant no.2 visàvis the consultancy agreements. The consultancy agreements do not contain any provision for any liquidated damages for its breach. Consequently, section 73, Indian Contract Act, would govern the aspect of breach thereof. In order to avail of compensation, in terms of section 73 of Indian Contract Act, plaintiff has to prove the loss that he suffered on account of breach of the contract. There is nothing in the entire evidence of the plaintiff to show as to what loss he had suffered on account of the breach of the provision of lockin period in the consultancy agreements. Next, Consultancy agreement Ex. PW1/4 dt. 15.08.2000 reflects that plaintiff's services were to include 'advisory services, liasioning, representation in the different countries and fund raising for the various clients of IAP'. Plaintiff does not anywhere state as to what consultancy services did he actually render to defendant no.2. There is no averment anywhere in the entire plaint and/or the evidence by way of affidavit of plaintiff to show that he had actually rendered services to defendant no.2 and if so what exactly were those services that were rendered. Without any actual proof of the services so rendered, this Court would not proceed to pass a money decree in plaintiff's favour and against defendant no.2 merely and merely on the basis that there existed consultancy agreement(s). In the entire plaint and in the evidence by way of affidavit, such an averment is altogether missing. To repeat, on the mere basis of mere existence of consultancy agreements, a money decree CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 29 of 32 would not be passed without there being averment and proof of the actual liasioning work, fund raising activities for various clients of IAP, representations made in different countries and other advisory services besides promotion of company's global interests. The question would also arise whether the activities, which is not specified and which has been given the hue and colour of 'liasioning' were permissible under the Indian Laws.
41. The plaintiff is thus not entitled to any dues towards the consultancy agreements.
42. This issue is accordingly decided against the plaintiff. It is held that the plaintiff is not entitled to any amount from the defendants.
43. Issue no.2 - This issue is whether the suit is bad for mis joinder of causes of action. This Court is entirely in agreement with the contentions of defendants no.1 and 3 that there is no connection between the lease agreements and the consultancy agreements. This court finds no nexus whatsoever between the two agreements. In respect of the lease deeds, the agreement was in respect of the premises situated in Delhi, with lease money being remitted to plaintiff's bank account of Central Bank of India, Connaught Circus, Delhi and with the plaintiff therein being shown to be a resident of 31, Hanuman Road, Delhi. Consultancy agreement Ex. PW1/4 was between 'India Action Plan Company Limited, 210, Dia Palace, 1191, Niban cho, Chiyodaku, Tokyo, Japan' and 'Mr. Onkar Singh Marwah s/o Late Mr. B.S. Marwah, resident of 27, Grand Coeur, Ch 1256 Tronix/Geneva, Switzerland'. The fee in terms of this CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 30 of 32 agreement wad payable in Japanese Yen. The consultancy agreement Ex. PW1/7 was again between 'India Action Plan Company Limited, Ot bilding, 9th Floor, 12824 Hongo, Bunkyo ku, Tokyo 1130033, Japan' and plaintiff being shown to be residing at the aforesaid Geneva address and based in Geneva. The fee in terms of the consultancy agreements was to be paid in Japanese Yen (as per the first consultancy agreement) and Swiss Franc (as per the second consultancy agreement). Both the consultancy agreements were for the purpose of liasioning, fund raising activities, representation at different countries, advisory services and for promoting the business interests of the company globally. This court fails to comprehend as to what nexus does the lease of the property has with the consultancy agreements. This Court is of the view that the two causes of actions have been wrongly joined. Order II Rule 3 of CPC, however, provides for no consequences for misjoinder of causes of actions. This issue is accordingly answered against the plaintiff by holding that there has been misjoinder of causes of action.
44. Issue no.1 - This issue is whether the suit is bad for mis joinder of parties. Defendants no.1 and 3 took an objection in their written statement there is misjoinder of parties inasmuch as defendant no.1 has nothing to do with the consultancy agreements and the defendant no.2 has nothing to do with the lease of the premises. Under Order I Rule 9, CPC a suit can never be defeated for misjoinder of a party. It is only in case of nonjoinder of a necessary party that a suit can be defeated or held to be bad. The very fact that a party may have been mis CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 31 of 32 joined will not be a ground to hold that the suit is not maintainable. In view of this legal position, this issue is answered in plaintiffs' favour and against the defendants.
45. Relief - The instant suit stands dismissed. No order as to costs. Decree sheet to be drawn up. File be consigned to record room.
ANNOUNCED IN THE OPEN MURARI Digitally signed by MURARI COURT ON 31.08.2018 PRASAD SINGH PRASAD Date: SINGH 2018.08.31 15:52:45 +0530 (M. P. SINGH) ADJ03 (CENTRAL) TIS HAZARI COURTS: DELHI/31.08.2018 CS No. 283/16 New CS No.10840/16 Dr. Onkar Singh Marwah Vs. IAP Co. Ltd. & Ors. Page 32 of 32