Delhi District Court
Mr. S.S. Lamba vs Ab Optique Eye Ear And Speech Pvt. Ltd on 26 November, 2022
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
CS (Comm.) No. 418/2021
Mr. S.S. Lamba
S/o Late Sh. Jaswant Singh Lamba
C-140, Sarvodaya Enclave,
New Delhi-110017
Mob No.: 9810066025
Email:[email protected] .....Plaintiff
Versus
1.AB Optique Eye Ear and Speech Pvt. Ltd.
C-5, Main Market, C Block, Vasant Vihar New Delhi-110057
2. Mr. Ajeet Bhardwaj (Managing Director) AB Optique Eye Ear and Speech Pvt. Ltd.
C-5, Main Market, C Block, Vasant Vihar, New Delhi-110057.
Mob No. : 9811142877 Email:[email protected], [email protected] Also at:
38, Basant Lok, Vasant Vihar, New Delhi-110057
3. Mrs. Vineeta Bhardwaj (Director) AB Optique Eye Ear and Speech Pvt. Ltd.
C-5, Main Market, C Block, Vasant Vihar, New Delhi-110057.
Mob No. : 9811142877 Email:[email protected] Also at:
38, Basant Lok, Vasant Vihar, New Delhi-110057 ....Defendants Date of Institution : 06.10.2021 Arguments concluded on : 14.10.2022 CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 1 of 28 Decided on :26.11.2022 Appearances :Sh. Ashok Kumar Popli, Ld. Counsel for Plaintiff.
Sh. Umesh Sharma, Ld. Counsel for defendants.
EX-PARTE JUDGMENT
1. Plaintiff had filed this Commercial Suit for (i) recovery of Rs. 61,06,269/-; (ii) recovery of possession of commercial property bearing no. 38, (Right Hand Side), Basant Lok, Vasant Vihar, New Delhi-110057, admeasuring 650 square feet each for Ground Floor and Basement along with land underneath, right to access to common areas having full and unencumbered rights alongwith fittings (hereinafter referred as suit property); (iii) recovery of compensation @ Rs. 20,000/- per day for use and occupation of suit property till delivery of vacant possession to plaintiff; with interest and cost against the defendants.
2. Following is the relevant brief factual matrix of the case of plaintiff. Plaintiff is senior citizen aged about 78 years old and owner of suit property having no other source of income and entirely dependent upon the rental income. Defendant no. 2 is the Managing Director of defendant no. 1 company. Defendant no. 3 is Director of defendant no. 1 company. In year 2018 defendants approached the plaintiff to obtain the suit property on lease, to use it as retail showroom for eye, ear and speech products by the trade name of Obtique having their registered office at C-5, Basement, Main Market, Vasant Vihar, New Delhi by the name of AB Optique Eye Ear and Speech Private Limited. Plaintiff believed representations made by defendant nos. 2 and 3.
Plaintiff had accordingly proceeded to agree to lease out the suit CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 2 of 28 property to defendants. Lease Agreement dated 13/10/2018 was executed between the parties. The fittings, fixtures, air conditioners, power back up etc. in good working condition were leased out to defendant nos. 2 and 3. The Lease Deed in respect of the suit property had been created for a period of five years commencing from 13/10/2018, subject to earlier determination or any renewal thereof. The entire rent settled was Rs. 2,75,000/- per month to be paid in advance on 7 th day of each calender month alongwith GST subject to deduction of tax alongwith Rs. 10,000/- as maintenance charges per month with applicable GST. The Lease Deed also incorporated averment that monthly rent to be paid by defendant no. 2 would be escalated at 15% on the last paid rent after expiry of first 12 months. Therefore, the rent from l3/10/2019 till 12/10/2023 was Rs. 3,16,250/- per month. Rs. 8,25,000/- was paid by defendant no. 2 to plaintiff towards interest free refundable security deposit. Refund of said amount of security was determined and governed by the covenants incorporated in Lease Deed. It was agreed between the parties and mentioned in the Lease Deed that it shall be registered with the concerned Registrar/Sub Registrar and that the stamp duty and the registration charges shall be borne by defendant nos. 2 and 3. Despite several requests and repeated reminders by plaintiff; defendant nos. 2 and 3 failed to discharge their obligation of registration of the said Lease Deed and subsequently evaded the same to save stamp duty and registration charges which defendant nos. 2 and 3 were obliged to incur and Lease Deed could not be registered. Ever since the commencement of Lease Deed, defendant no. 2 had been regularly delaying the payment of rent of the suit property.
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 3 of 28Contrary to the representations of timely payment of rent by the defendant nos. 2 and 3; plaintiff had to wait for their instructions to deposit the advance post dated cheques later than the due date ensuing his request every time lest they should be returned unpaid which is borne out of numerous WhatsApp messages, e- mails etc. exchanged between the parties. Plaintiff was always compelled to make a lot of requests to the defendant no. 2 each month for payment of rent. Plaintiff repeatedly urged defendant no. 2 to discharge his financial obligations in a sincere manner but the bonafide requests of plaintiff proved always futile. Taking advantage of the vulnerable and unwary situation of plaintiff and in the garb of the pandemic defendant no. 2 requested for respite in rent and accordingly on his persistent requests, plaintiff by invoking the relevant clause in the said Lease Deed, entered into an Addendum dated 26/08/2020 with defendants. As per the Addendum, the defendant no. 2 was accorded conditional respite in rent reducing it from Rs. 3,16,250/- to Rs. 2,14,286/- plus GST for a period from 01/04/2020 till 31/10/2020; specifically stating that the respite shall be rendered till 31/10/2020 and if the addendum was not complied with by the defendant no. 2, then it shall allow the subsisting agreement alone to prevail and accordingly after 31/10/2020, the rent shall be Rs. 3,16,250/- . Also vide aforesaid Addendum the plaintiff exempted the defendant no. 2 with Rs. 10,000/- payable against maintenance charges (as per the terms of the original Agreement) for the month of April, 2020 only. Plaintiff did not deposit the advance post dated cheques of higher amount of agreed rent of Rs. 3,16,250/- lying with him and exchanged the same with the cheques of lower amount of Rs. 2,14,286/-. It was agreed while CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 4 of 28 executing the aforesaid Addendum that while conferring respite by the plaintiff, defendant no. 2 shall issue post dated cheques of three months in advance w.e.f., 01/11/2020 and the advance post dated cheques shall be handed over/issued before the commencement of three months ensuing period at all times in future. Despite the respite accorded to the defendant no. 2, he committed breaches of the terms incorporated in the Addendum also. Plaintiff had persistently and relentlessly reminded the defendant no. 2 of his contractual and financial obligations although they were under no obligation to do just to refrain from any sort of untowardness. Plaintiff being a senior citizen and not being very well versed with the computer and electronic medium of communications used to have e-mail communications through his son Vijaypreet Singh Lamba. Defendant no. 2 approached the plaintiff once again to seek further respite in reducing the rent and the plaintiff once again assented to his request and executed a fresh Addendum dated 09/11/2020. Plaintiff extended the period of respite to 31/01/2021 again in tandem with the subsisting said Lease Deed dated 13/10/2018. Defendant no. 2 as a chronic defaulter also flouted the terms agreed vide the second Addendum dated 09/11/2020 with repeated non payments and the plaintiff withstood the same only to avoid unpleasantness and always kept an empathetic view considering the pandemic. However, by taking advantage of the disadvantageous position of the plaintiff and by withholding issuance of post dated cheques of rent and again by serenading the same plea qua current market conditions once again for the third time, the defendant no. 2 sought extension of the date of respite vide e-mail dated 07/01/2021, to which the plaintiff categorically refused vide his CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 5 of 28 e-mail dated 12/01/2021. However, the plaintiff again sent reminders to the defendant no. 2 to honour the terms of the Addendum vide numerous e-mails and WhatsApp messages, phone calls exchanged between the plaintiff and defendant no. 2 and also between the sons of plaintiff and defendant no. 2. The act of defendant no. 2 of flouting the agreed clauses of the Lease Deed and both the Addendums by always delaying the post dated cheques due to the plaintiff for rent and even delayed payment of rent i.e., before 7th and 9th day of each calender month respectively became a recurrence. Even cheque dated 09/01/2021 issued by defendant no. 2 which had been handed over to plaintiff was presented only on 13/01/2021 returned dishonored. Aggrieved by the explicit refusal of the plaintiff to extend the date of respite and also due to specific reminder given by the plaintiff vide e-mail dated 23/01/2021 and 28/01/2021, about the inescapable consequences of non-adherence by defendant no. 2 to the agreed terms of Addendum and right to recover arrears of rent as per the Lease Deed, defendant no. 2 vide e-mail dated 18/02/2021, apparently manifesting his malafide, ambiguous and concealed motives downrightly refused to pay the outstanding arrears of rent due to plaintiff on flimsy and arbitrary accounts which would not hold good and tenable in law. Aforesaid e-mail of defendants was duly replied by plaintiff on 25/02/2021. Said Lease Deed provided that in case defendant no. 2 committed default in payment of monthly rent for two consecutive months, said Lease Deed shall stand terminated, while retaining all rights and remedies including and not limited to the right to release the outstanding arrears of rent liable to be paid by defendant no. 2. It is apparent and evident that the sole intention of the defendant CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 6 of 28 no. 2 was to enjoy the suit property without the payment of rent. Defendant no. 2 brazenly committed breaches of the terms and covenants entailed in the said Lease Deed and subsequent Addendums and by withholding the arrears of balance/part rent from 01/04/2020 till 31/01/2021 amounting to Rs. 10,19,640/- plus GST alongwith rent amounting to Rs. 3,16,250/- for the months of February and March, 2021 i.e., total sum amounting to Rs. 16,52,140/-; which defendant no. 2 is liable to pay to the plaintiff. Plaintiff got dispatched Legal Notice on 12/03/2021 through e-mail to defendants and through courier and speed post on 14/03/2021 to defendants. By said Legal Notice it was intimated to defendant no. 2 that the lease created in favour of the defendants in respect of suit property by virtue of lease agreement dated 13/10/2018 stood determined, terminated, cancelled and revoked. It was further conveyed that in case possession of suit property was not handed over peacefully and vacant upon expiry of 15 days period then defendant no. 2 would be liable to pay agreed charges at the rate of Rs. 20,000/- per day to plaintiff over and above the amount indicated in rent in said Lease Deed till such time the defendants were in illegal and unauthorized occupation of the suit property. It was further conveyed that the occupation of the suit property by the defendants was contrary to provisions of law as well as contractual covenants contained in the said Lease Deed. Yet vacant and peaceful possession of the suit property was not handed over by defendants to plaintiff. On 29/04/2021, it came to the knowledge of plaintiff that defendant no. 2 without any intimation had made an unexplained NEFT/transfer of Rs. 1,26,647/- in his Punjab National Bank Account from the account CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 7 of 28 of defendant no. 1 company by defendants. Vide said Legal Notice 12/03/2021 defendant no. 2 was further called upon to pay the outstanding maintenance charges with GST and interest, compensation for use and occupation of suit property along with GST. Civil Suit CS No. 241/2021 for eviction and recovery of rent was filed by plaintiff against the defendants wherein Court of Ld. Additional District Judge, Patiala House Court, New Delhi had passed an order for transfer of the suit to the Commercial Court, being the competent Court to entertain the said suit. Since the format and compliances for the plaint under the Commercial Court Act were altogether different than the Civil Suit therefore, the said suit was withdrawn by the plaintiff with liberty to file afresh in terms of the provisions of The Commercial Courts Act.
3. Defendants were served with the summons of the suit by e- mail on 27/11/2021 and physically on 01/12/2021. On 10/02/2022 written statement on behalf of defendant nos. 1, 2 and 3 with replies to applications of plaintiff were filed and about that in order dated 22/02/2022 it was mentioned that perusal of written statement reveals of it having been signed by the defendants only on the last page and not on the first twelve pages of the written statement, whereas each and every page was to be signed by each and every defendant. Parties were to file pleadings as per orders dated 22/10/2021 and 22/11/2021. Later thereto no steps were taken by the defendants to cure the defect in the written statement. Any how in written statement following averments were pleaded. Suit of plaintiff is based on claim of rent which is not real. Plaintiff cannot claim amount of GST, maintenance, TDS by way of present suit. Suit is a gross misuse CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 8 of 28 of the process of law and liable to be rejected outrightly. No notice for possession of suit property was issued to defendant nos. 2 and 3 nor defendant nos. 2 and 3 are party to Lease Deed; suit is not maintainable against them. Plaintiff had concealed the material facts from the knowledge of the Court that the first floor of the property in question was under renovation during the period from January, 2021 to February, 2021; hence the shop of the defendant at ground floor property could not be used as the entrance of the shop was completely blocked. Plaintiff had agreed that for the period the property was under repair and construction; no rent, maintenance and GST shall be payable. Plaintiff is now claiming the rent for the aforesaid period dishonestly by way of present suit which is illegal. The entire due rent was paid till May, 2021 to the plaintiff as mentioned in reply to notice by defendant no. 1. Plaintiff concealed the aforesaid fact from the knowledge of the Court. There was complete collapse of business due to the pandemic and the defendants wanted to vacate the premises but the plaintiff insisted that the defendant cannot vacate during the period of lock in as mentioned in the Lease Deed and accordingly the plaintiff agreed to give rebate in the rent hence the defendant no 1 stayed in the said property. After the lock in period was over, defendant no. 1 clearly stated to plaintiff that he does not wish to continue as a tenant hence the security amount paid by him should be returned and he be allowed to remove his goods from the premises. Plaintiff instead of refunding the security amount and taking possession of the property had restored to dishonest method of claiming alleged rent even after that and had retained the security deposit. The agreed rent for the period of April, 2020 to January, 2021 was CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 9 of 28 also paid by the defendant despite a lock-down and non use of the property. Plaintiff collected the advance rent cheques for the months of January and February, 2021 and started construction thereby disrupting the business of defendant no. 1. The renovation also caused damage to the property and board and customers could not enter the shop of the defendant during this period and thereby causing loss to sale. The aforesaid coupled with the effect of lock-down since February, 2020 had completely collapsed the business of the defendant and he had no option then to vacate the premises but the plaintiff did not refund his security deposit and had been resorting to ways and means to extract more and more money from the defendant no. 1. Plaintiff had based his claim over some alleged e-mails, WhatsApp chats instead of the required mode of communication as stated in Clause 6(m) of the Lease Deed between the parties. The said communications are even otherwise fake, false, fabricated and extracted illegally and hence not admissible in law. Plaintiff had based his claim on the alleged Lease Deed, which is not registered; hence no legal and evidentiary value of the same can be taken and the entire reliance of the plaintiff on the same is baseless. Plaintiff did not disclose in the plaint that defendant is entitled to deduct the TDS for the amount to be paid in respect of the premises. Plaintiff did not disclose that defendant could not use the property during the period of lock-down by Government due to Covid from February, 2020 till June, 2020 and there was complete collapse of business in said period. The suit in the present form was not maintainable. The suit of the plaintiff is not correct. No notice was given to defendant no. 2 or defendant no. 3 and no suit can be maintained against them.
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 10 of 28Plaintiff cannot claim maintenance amount as it was agreed to be waived. It was the plaintiff who approached defendant no. 1 as he wanted to lease out his property. Defendant had paid the entire lease rent regularly on time without any fail. There is no question of delay in payment of the rent as post dated cheques in lieu of advance rent was already collected by the plaintiff who used to get the same encashed as per his convenience. Defendant no. 1 being a Private Limited Company had taken the premises of plaintiff on rent as it had the resources to pay the rent as it was running a business. The aforesaid lease agreement was only a draft lease agreement and it was approved by defendant no. 1 by putting the seal and the signatures on the same and it was agreed to be presented for registration. Plaintiff did not get the same registered despite repeated request by defendant no. 1. Unregistered Lease Deed is not valid and cannot be relied upon. The plaintiff became dishonest and did not register the Lease Deed and also retained the security amount as a result of which defendant could not clear his dues and vacate the premises. The Addendum was executed just because the defendant was not in a position to pay the rent and the plaintiff wanted to retain him in the premises. The plaintiff on his own came forward and said that he would agree to deduction of the rent despite the fact that the shop has remained closed for the entire period of Covid. Accordingly, defendant agreed for the same and paid the reduced rent completely till January, 2021. It was prayed that suit of plaintiff be dismissed.
4. Due to non appearance of defendants on 18/04/2022 despite repeated calls since morning till 2.58 pm defendants were CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 11 of 28 proceeded ex parte and matter was adjourned for ex parte evidence for 13/05/2022.
5. On 13/05/2022, plaintiff examined himself as PW1 and his son Sh. Vijaypreet Singh Lamba as PW2 in ex parte plaintiff evidence. Even on 13/05/2022 neither defendants nor their Counsel appeared.
6. Two applications were filed by defendants on 25/05/2022. First application was under Order IX Rule 7 read with Section 151 of The Code of Civil Procedure,1908 (hereinafter referred as CPC). Second application was under Section 5 of The Limitation Act read with Section 151 CPC. Copies of said applications were given to plaintiff on 25/05/2022 and opportunity to file replies was given to plaintiff and matter was adjourned for arguments on aforesaid applications.
7. On 08/07/2022, the later date of hearing, defendants through Ld. Counsel filed application under Section 151 CPC for handing over possession of the suit property to the plaintiff. Statements of
(i) Ld Counsel for defendants on behalf of defendants; (ii) plaintiff and (iii) Ld. Counsel for plaintiff for identification of plaintiff were recorded. Defendants through Ld. Counsel had stated that they shall hand over the vacant and peaceful possession of the tenanted suit property as described in the plaint to landlord/plaintiff at 5 pm on 15/09/2022 at the site of said premises against receipt. Plaintiff had agreed for receipt of possession of suit property accordingly. In view of above said statements, the suit was decreed for claimed relief of possession.
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 12 of 28Decree-sheet was prepared accordingly by the Reader. In the course of arguments, Ld. Counsel for plaintiff had submitted that plaintiff has received the possession of suit property accordingly. Therefore, no dispute with respect to claimed relief of possession of suit property remains pending to be adjudicated between the parties to the lis. Pending adjudication is the claim of plaintiff for recovery of money, interest and cost.
8. With the consent of parties/Counsel matter was also referred on 08/07/2022 for Mediation and mediation proceedings dated 03/09/2022 were received with the mention that matter has not been settled between the parties.
9. On 19/09/2022 since none had appeared for defendants despite calls till 3.07 pm, applications of defendants (i) under Order IX Rule 7 read with Section 151 CPC and (ii) under Section 5 of The Limitation Act read with Section 151 CPC were dismissed in default. Matter was adjourned on 19/09/2022 for final arguments on 14/10/2022.
10. On 14/10/2022 I have heard arguments addressed by Sh. Ashok Kumar Popli, Ld. Counsel for plaintiff and Sh. Umesh Sharma, Ld. Counsel for defendants who appeared that day. Ld. Counsel for plaintiff argued for decree of the suit in terms of the prayers in the plaint on the basis of the evidence led on record and documents proved. Following were the main contentions in arguments of Ld. Counsel for defendants. No notice was given by plaintiff for seeking possession before filing of the case. Emails relied are not of plaintiff. No rate of interest was agreed for CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 13 of 28 default in payment of rent. The rent of suit property was paid till January, 2021 whereas only rent of suit property for the months of February, 2021 and March, 2021 remains to be paid. Copy of Lease Deed Mark A stands not proved as per law. Plaintiff has also not proved any document with respect to GST. Ld. Counsel for defendants also argued that time and again defendants had asked plaintiff to pay back the security amount and they will vacate the suit property but plaintiff did not refund the deposited interest free security amount of Rs. 8,25,000/-. Ld. Counsel for defendants prayed for dismissal of the suit, submitting that evidence on record lacks material for decree of suit prayed for.
11. Plaintiff as PW1 tendered his affidavit Ex PW1/A in evidence and relied upon following documents:-
S.No Documents Exhibit
1 Email dated 07/03/2019 at 1.58 PM Ex PW1/2
sent by optique accounts
<[email protected]> to
[email protected],
OPTIQUE CARE
<[email protected]>
2 Email dated 11/03/2019 at 5.03 PM Ex PW1/3
sent by Vijay Preet
<[email protected],> to
OPTIQUE ACCOUNTS
<[email protected]>
3 Email dated 13/03/2019 at 11.56 Ex PW1/4
AM sent by Vijay Preet
<[email protected]> to
OPTIQUE ACCOUNTS
<[email protected]>
4 Email dated 13/03/2019 at 1.41 PM Ex PW1/5
sent by optique accounts
<[email protected]> to
Vijay Preet
<[email protected]>,
OPTIQUE CARE
<[email protected]>
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 14 of 28
5 Email dated 16/03/2019 at 2.01 PM Ex PW1/6
sent by Vijay Preet
<[email protected]> to
OPTIQUE ACCOUNTS
<[email protected]>
6 Email dated 17/03/2019 at 6.58 PM Ex PW1/7
sent by optique accounts
<[email protected]> to
Vijay Preet
<[email protected]>,
OPTIQUE CARE
<[email protected]>
7 Email dated 17/03/2019 at 7.04 PM Ex PW1/8
sent by Vijay Preet
<[email protected],> to
Optique accounts
<[email protected]>
8 Email dated 08/04/2019 at 3.23 PM Ex PW1/9
sent by optique accounts
<[email protected]> to
Vijay Preet
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>
9 Email dated 08/04/2019 at 3.27 PM Ex PW1/10
sent by Vijay Preet
<[email protected]> to
OPTIQUE ACCOUNTS
<[email protected]>
10 Email dated 06/05/2019 at 1.27 PM Ex PW1/11
sent by optique accounts
<[email protected]> to
Vijay Preet
<[email protected]>,
OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
11 Email dated 06/05/2019 at 1.32 PM Ex PW1/12
sent by Vijay Preet
<[email protected]> to
OPTIQUE ACCOUNTS
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>,
[email protected]
12 Email dated 07/05/2019 at 6.11 PM Ex PW1/13
sent by optique accounts
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 15 of 28
<[email protected]> to
Vijay Preet
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
13 Email dated 07/01/2021 at 11.45 Ex PW1/15
PM sent by optique accounts
<[email protected]> to
Vijay Preet
<[email protected]>,
[email protected], ajeet
bhardwaj <[email protected]>
14 Email dated 12/01/2021 at 7.25 PM Ex PW1/16
sent by Vijay Preet
<[email protected]>
to optique accounts
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
15 Printout of whatsapp chats from Ex PW1/18
10/10/2018 to 15/01/2021 (Colly)
16 Email dated 23/01/2021 at 11.45 Ex PW1/19
AM sent by Vijay Preet
[email protected]> to ajeet
bhardwaj <[email protected]>,
OPTIQUE CARE
<[email protected]>
17 Email dated 28/01/2021 at 10.57 Ex PW1/20
PM sent by Vijay Preet
[email protected]> to ajeet
bhardwaj <[email protected]>,
OPTIQUE CARE
<[email protected]>, optique
accounts
<[email protected]>
18 Email dated 25/02/2021 at 12.48 Ex PW1/21
AM sent by Vijay Preet
<[email protected]> to
optique accounts
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
19 Legal notice under Section 106 of Ex PW1/22
Transfer of Property Act, 1882 dated
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 16 of 28
12/03/2021 sent by Ld. Counsel for
plaintiff to defendant nos. 1 and 2
20 Speed post receipt no. Ex PW1/23
ED761732808IN dated 13/03/2021,
10:16; sent to defendant no. 1 by
Ld. Counsel for plaintiff
21 Speed post receipt no. Ex PW1/24
ED761732799IN dated 13/03/2021,
10:16; sent to Ajeet Bhardwaj by
Ld. Counsel for plaintiff
22 Speed post receipt no. Ex PW1/25
ED761732785IN dated 13/03/2021,
10:16; sent to defendant no. 1 by
Ld. Counsel for plaintiff
23 Copy of receipt of Trackon Couriers Ex PW1/26
Pvt. Limited no. 1414970327 dated
13/3/21
24 Copy of receipt of Trackon Couriers Ex PW1/27
Pvt. Limited no. 1414970326 dated
13/3/21
25 Copy of receipt of Trackon Couriers Ex PW1/28
Pvt. Limited no. 1414970325 dated
13/3/21
26 Ledger account of defendant no. 1 Ex PW1/29
from 01/04/2020 to 20/09/2021
27 Reply dated 22/03/2021 of Ex PW1/30
defendant no. 1 of legal notice dated
12/03/2021 sent to plaintiff
28 Email dated 22/03/2020 at 2.14 PM Ex PW1/31
sent by optique accounts
<[email protected]> to
Vijay Preet
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
29 Email dated 09/04/2020 at 6.46 PM Ex PW1/32
sent by Vijay Preet
<[email protected]> to
optique accounts
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
30 Email dated 16/05/2020 at 2.06 PM Ex PW1/33
sent by ajeet bhardwaj
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 17 of 28
<[email protected]> to
[email protected]
31 Email dated 16/05/2020 at 10.43 Ex PW1/34
PM sent by Vijay Preet
[email protected]> to ajeet
bhardwaj <[email protected]>
32 Email dated 05/06/2020 at 01.07 Ex PW1/35
AM sent by Vijay Preet
[email protected]> to ajeet
bhardwaj <[email protected]>
33 Email dated 06/06/2020 at 9.57 PM Ex PW1/36
sent by Vijay Preet
[email protected]> to
optique accounts
<[email protected]>.
OPTIQUE CARE
<[email protected]>
34 Email dated 11/06/2020 at 3.26 PM Ex PW1/37
sent by ajeet bhardwaj
<[email protected]> to Vijay
Preet <[email protected]>
35 Email dated 12/06/2020 at 5.59 PM Ex PW1/38
sent by Vijay Preet
[email protected]> to ajeet
bhardwaj <[email protected]>
36 Email dated 29/06/2020 at 1.12 PM Ex PW1/39
sent by optique accounts
<[email protected]> to
Vijay Preet
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
37 Email dated 29/06/2020 at 2.18 PM Ex PW1/40
sent by Vijay Preet
[email protected]> to
optique accounts
<[email protected]>
38 Email dated 30/06/2020 at 12.02 Ex PW1/41
PM sent by Rahul B
<[email protected]> to Vijay
Preet [email protected]>
Cc: Dad<[email protected]>
39 Email dated 27/07/2020 at 9.41 PM Ex PW1/42
sent by Vijay Preet
[email protected]> to
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 18 of 28
OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
40 Email dated 28/07/2020 at 2.10 PM Ex PW1/43
sent by ajeet bhardwaj
<[email protected]> to Vijay
Preet <[email protected]>
Cc: OPTIQUE CARE
<[email protected]>
41 Email dated 22/08/2020 at 12.15 Ex PW1/44
PM sent by Vijay Preet
[email protected]> to
OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
42 Email dated 26/08/2020 at 10.48 Ex PW1/45
AM sent by Rahul B
<[email protected]> to Vijay
Preet [email protected]>
Cc: ajeet bhardwaj
<[email protected]>
43 Email dated 15/10/2020 at 4.30 PM Ex PW1/46
sent by Vijay Preet
[email protected]> to ajeet
bhardwaj <[email protected]>,
OPTIQUE CARE
<[email protected]>
44 Email dated 20/10/2020 at 6.50 PM Ex PW1/47
sent by optique accounts
<[email protected]> to
Sodhi & Associates
<[email protected]>
Vijay Preet
<[email protected]>, ajeet
bhardwaj <[email protected]>,
OPTIQUE CARE
<[email protected]>
45 Email dated 21/10/2020 at 6.07 PM Ex PW1/48
sent by Vijay Preet
[email protected]> to
optique accounts
<[email protected]>
Cc: Sodhi & Associates
<[email protected]>,
ajeet bhardwaj
<[email protected]>,
OPTIQUE CARE
<[email protected]>
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 19 of 28
46 Email dated 7/11/2020 at 10.28 PM Ex PW1/49
sent by Rahul B
<[email protected]> to Vijay
Preet [email protected]>,
Dad <[email protected]>
Cc: Atul arora acct
<[email protected]>
47 Email dated 9/11/2020 at 4.52 PM Ex PW1/50
sent by Vijay Preet
[email protected]> to
Rahul B <[email protected]>
Cc: Dad <[email protected]>,
Atul arora acct
<[email protected]>
48 Email dated 15/01/2021 at 3.54 PM Ex PW1/51
sent by Vijay Preet
[email protected]> to ajeet
bhardwaj <[email protected]>,
OPTIQUE CARE
<[email protected]>
49 Email dated 18/02/2021 at 2.40 PM Ex PW1/52
sent by optique accounts
<[email protected]> to
Vijay Preet
<[email protected]>
Cc: OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
50 Email dated 21/02/2021 at 9.03 PM Ex PW1/53
sent by optique accounts
<[email protected]>
to Vijay Preet
<[email protected]>,
OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
51 Email dated 25/02/2021 at 11.40 Ex PW1/54
AM sent by Vijay Preet
<[email protected]> to
optique accounts
<[email protected]>
Cc:OPTIQUE CARE
<[email protected]>, ajeet
bhardwaj <[email protected]>
12. PW2 proved his certificate (affidavit) Ex PW2/A under CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 20 of 28 Section 65B of The Indian Evidence Act, 1872.
13. Order XI Rule 6 (3) of CPC mandates the declaration on oath to be filed by a party specifying (a) the parties to such Electronic Record; (b) the manner in which such electronic record was produced and by whom; (c) the dates and time of preparation or storage or issuance or receipt of each such electronic record; (d) the source of such electronic record and date and time when the electronic record was printed; (e) in case of e-mail ids, details of ownership, custody and access to such e- mail ids; (f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource; (g) deponent's knowledge of contents and correctness of contents; (h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored; (i) that the printout or copy furnished was taken from the original computer or computer resource.
14. Majority of above said information required to be specified in terms of Order XI Rule 6 (3) of CPC elicited above, is not even contained in the affidavit (certificate) Ex PW2/A under Section 65B of The Indian Evidence Act, which only in vague terms is containing an endeavor to put forth of compliance of conditions of Section 65 B of the Indian Evidence Act.
15. PW1 also testified that he had not brought original of Lease CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 21 of 28 Deed dated 13/10/2018 so its photocopy was marked as Mark A. In para no. 5 of affidavit Ex PW1/A, PW1 mentioned inter alia that original of Mark A was retained by defendants. No steps were taken by plaintiff or his Counsel for demanding production of original of Mark A from defendants on the date of leading evidence of plaintiff. Per contra to above said deposition of plaintiff in Ex PW1/A on the facet that original of Mark A was with the defendants; the filed list of documents dated 30/09/2021, filed with plaint by plaintiff through Counsel, which is signed on every page by plaintiff, inter alia finds mention that original of Mark A is in power/possession, control and custody of plaintiff. In said list of documents, there is no mention that original of Mark A is with any of the defendants.
16. Mark A is the photocopy of Lease Deed dated 13/10/2018 which is not on requisite stamp paper and is an unregistered document on plain papers without having even any witness therein.
17. Addendum dated 26/08/2020 Mark C and Addendum dated 09/11/2020 Mark B were consequent to unregistered Lease Deed dated 13/10/2018 whose photocopy Mark A produced, depicted it to be not on requisite stamp paper; whereas these Addendum Mark B and Mark C were also on e-stamp paper of Rs. 100/- each only and were thus marked in evidence of plaintiff PW1. Accordingly neither the plaintiff has been able to prove the Lease Deed dated 13/10/2018 nor their aforesaid Addendum Mark B and Mark C are as per law. Lease Deed Mark A dated 13/10/2018 CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 22 of 28 was for a period of five years. Article 35 (a)(iii) of The Schedule I of The Indian Stamp Act, 1899 embodies that proper stamp duty for lease for term in excess of three years is the same duty as a Conveyance (No. 23) for a consideration equal to the amount or value of the average annual rent reserved. Mark A placed on record is a photocopy which is not on any stamp paper. Plaintiff did not produce Lease Deed having proper stamp duty as per The Indian Stamp Act, 1899. Section 17(1)(d) of The Registration Act, 1908 embodies that leases of immovable property for any term exceeding one year is compulsory registrable. Mark A was not registered. It was the prerogative of owner/landlord to not to deliver possession of suit property without registration of lease deed and its execution on appropriate stamp papers.
18. There is no dispute about the legal position that if a document is required to be registered and is unregistered, it is not admissible into evidence under Section 49 of The Registration Act, 1908. Such unregistered document can however be used as an evidence of collateral transaction not required to be effected by registered instrument as provided in the proviso to Section 49 of The Registration Act, 1908. A collateral transaction must be independent of, or divisible from, the transaction to be effected by instrument, for which law required registration. However, when the question pertains to the terms and conditions of the Lease, the conduct of the parties and entire surrounding circumstances have to be looked into and considered by the Court during the trial.
CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 23 of 2819. In the present case, few facts and circumstances, which are note worthy are that, emails (i) Ex PW1/52 dated 18/02/2021; (ii) Ex PW1/53 dated 21/02/2021 of defendant to son of plaintiff PW2 and email Ex PW1/54 dated 25/02/2021 of son of plaintiff to defendant make it abundant clear of agreed rent (including after given respite) was paid by defendants to plaintiff upto the period of January, 2021. It is admitted fact between the parties that rate of monthly rent of suit property was Rs. 2,75,000/- for first twelve months commencing from 13/10/2018 and after expiry of first twelve months said rate of monthly rent of suit property was Rs. 3,16,250/-. Own averment of plaintiff, elicited above, in plaint and affidavit Ex PW1/A is that respite for rate of rent was granted upto January, 2021 by plaintiff to defendants. For the period upto January, 2021, monthly rent after respite received was Rs. 2,14,286/-. Remaining terms of unregistered insufficiently stamped Lease Deed Mark A dated 13/10/2018 and Addendums Mark B and Mark C are not independent of nor divisible from transactions to be effected by instruments for which law required registration. Accordingly, outstanding rent payable by defendants of months of February, 2021 and March, 2021 amounted to Rs. 6,32,500/- @ Rs. 3,16,250/- per month per contra to claimed amount in prayer (b)(a) in plaint of Rs. 16,52,140/-. Similarly it is also admitted fact from pleadings of parties borne out of record that maintenance charges were outstanding from February, 2021 onwards and plaintiff is accordingly entitled for sum of Rs. 80,000/- on that facet per contra to claim of Rs. 90,000/- in prayer (b)(e) in plaint. It is also admitted fact on record that plaintiff received possession of suit property on 15/09/2022. In prayer (b)(c) in plaint plaintiff had CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 24 of 28 claimed compensation for use and occupation of suit property at the rate of Rs. 20,000/- per day from 01/04/2021 till 20/09/2021 amounting to Rs. 34,60,000/-. As above said, since plaintiff has failed to prove unregistered insufficiently stamped Lease Deed Mark A and Addendums Mark B and Mark C and their terms cannot be read as they are not independent of or divisible from the transactions to be effected by said documents for which law required registration; so plaintiff cannot be held to be entitled for compensation for use and occupation of suit property at the claimed rate of Rs. 20,000/- per day for aforesaid period from 01/04/2021 till 20/09/2021. More so, in plaintiff evidence on record there is no oral or documentary evidence led and fact proved that similar premise(s) in vicinity could fetch such compensation/damages as are claimed for. Be that as it may, still for use and occupation of suit property for the period from 01/04/2021 till 20/09/2021 defendants are liable to pay to plaintiff the sum at the rate of last agreed monthly rent which is at the rate of Rs. 3,16,250/-. Calculation of payable amount at the rate of monthly rent of Rs. 3,16,250/- for the period of five months twenty days from 01/04/2021 to 20/09/2021 is Rs. 17,92,083/-; per contra to claim for such period amounting to Rs.34,60,000/- in prayer (b)(c) in the suit. From said payable amount, interest free security deposit amount of Rs. 8,25,000/- deposited by defendants with plaintiff needs to be reduced. In prayers (b)(b); (b)(d) and (b)(f); in the plaint claim of interest at the rate 24% per annum compounded annually has been laid. Since terms of unregistered insufficiently stamped Lease Deed Mark A and Addendums Mark B and Mark C are not independent or divisible from the transactions to be effected by said CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 25 of 28 documents for which law required registration; there appears no occasion for award of interest as claimed in prayers (b)(b); (b)
(d); (b)(f) above said.
20. It is also the prayer (b)(h) in the plaint for recovery of compensation for use and occupation of suit property at the rate Rs. 20,000/- per day from defendants till delivery of vacant possession of suit property to plaintiff. As has been above held, plaintiff cannot be held entitled for compensation at the rate of Rs. 20,000/- per day for use and occupation of suit property by defendants in absence of cogent oral or documentary evidence that any nearby similar property in vicinity can fetch such claimed sum in said period. However, for the period of use and occupation of suit property by defendants i.e., (i) from 21/09/2021 to 30/09/2021 (for 10 days @ Rs 3,16,250/- per month) sum of Rs. 1,05,417/-; (ii) from 01/10/2021 to 15/09/2022 sum of Rs. 36,36,875/- (at the rate Rs. 3,16,250/- per month); plaintiff is entitled for recovery from defendants; which is subject to payment of requisite court fees on said amount within period of one week from this judgment.
21. Orders VII Rule 2A of CPC in respect of a commercial dispute of a specified value was brought in by way of amendment in respect of the requirements of pleadings where interest has been claimed by the plaintiff. No case has been properly setup by the plaintiff in plaint and also in affidavit Ex PW1/A in evidence in accordance with Order VII Rule 2A of CPC. Terms of unregistered insufficiently stamped Lease Deed Mark A and Addendums Mark B and Mark C are not independent nor CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 26 of 28 divisible from the transactions to be effected by said instruments for which law required registration; so the component of default interest cannot be gathered from these documents.
22. Under Section 34 of CPC it is provided that where the liability in relation to the sums so adjusted had arisen out of commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate of interest or where there is no contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to the commercial transactions.
23. Keeping in my opinion, since it has been established that it has been a commercial transaction; keeping in view the prevalent rate of interest in nationalized banks; interest of justice will be served if plaintiff is allowed future interest @ 9% per annum.
24. Plaintiff has also claimed the cost of the suit. Keeping in view Sections 35 and 35A of CPC, it has been established that defendants failed to pay the amount despite service of summons. Therefore, defendants themselves are responsible for the cost of the litigation to the extent of court fee and lawyers fee etc. as per rules. In my view plaintiff is accordingly entitled for the cost of litigation against the defendants.
Relief
25. In view of above discussions, suit for recovery is decreed in favour of plaintiff and against the defendants, jointly and CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 27 of 28 severally, for
(i) Rs. 16,79,583/- [(Rs. 6,32,500/- + Rs. 80,000/- + Rs. 17,92,083/-) less (Rs. 8,25,000/- of interest free security deposit)] for adjudicated payable sums against prayers in (b)(a), (b)(e) and (b)(c) respectively in the plaint;
(ii) Rs. 37,42,292/- [(Rs. 1,05,417/- + Rs.
36,36,875/-) (for use and occupation charges of suit property for period from 21/09/2021 till 15/09/2022)] for adjudicated payable sum against prayer (b)(h) in the plaint; subject to payment of requisite court fee on said sum of Rs 37,42,292/- within period of one week from this judgment and
(iii) Interest at the rate 9% per annum on both the aforesaid sums in (i) and (ii) above from the date of decree till realization of decreetal amount. Cost is also awarded in favour of plaintiff and against the defendants, jointly and severally, to the extent of court fee and advocate's fee as per rules.
26. Decree sheet be prepared accordingly.
27. File be consigned to record room.
Digitally signed by GURVINDER GURVINDER PAL SINGH
PAL SINGH Date: 2022.11.26
12:37:19 +0530
ANNOUNCED IN (Gurvinder Pal Singh)
OPEN COURT District Judge (Commercial Court)-02
On 26 November, 2022. Patiala House Courts, New Delhi th (dk) CS (Comm.) No. 418/2021 Mr. S.S. Lamba vs AB Optique Eye Ear and Speech Pvt. Ltd. & Ors. Page 28 of 28