Delhi District Court
Lakme Lever Private Limited vs . Mr. Rajeev Agarwal on 10 April, 2018
IN THE COURT OF ANIL ANTIL, ADDITIONAL DISTRICT JUDGE
SOUTH EAST DISTRICT, SAKET COURTS, ND.
Civil Suit No. 208642/16
Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal
Lakme Lever Private Limited Digitally signed
Registered Office At: ANIL by ANIL ANTIL
Date:
Shreeniwas House, 2018.04.11
1st floor, ANTIL 14:26:06
+0530
H Somani Marg,
Fort, Mumbai400001 ..........Plaintiff.
Versus
Mr. Rajeev Agarwal
M57(Market), Ground Floor,
Greater Kailash, PartII,
New Delhi110048
Also At:
3, Karloo Place,
Dianella WA 6059,
Australia. ..........Defendants.
Date of institution of the suit : 30.05.2016
Judgment reserved for orders : 31.03.2018
Date of pronouncement of judgment: 10.04.2018.
(Suit Decreed)
JUDGMENT
1. That the present suit filed by the plaintiff for recovery of Rs. 10,39,140/ along with pendentelite and future interest @ 18% per annum on the principal amount of Rs. 8,28,000/.
Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 1 of 16
2. Plaintiff's version as per averments in the plaint : 2.1 The plaintiff is a company incorporated under the Indian companies Act having its registered office as mentioned in memo of parties. The plaintiff is engaged in the business of providing beauty and wellness services, which inter alia, includes beauty and hair salons for women, owned and operated under the trade name 'LAKME SALON', 'LAKME BEAUTY SALON', 'LAKME ABSOLUTE' and/or 'LAKME FAST AND FAB'.
2.2. That the defendant approached the plaintiff and offered a built up area of 1100 sq. ft. on ground floor of M57, M Block Market, Greater Kailash, PartII, New Delhi110048; the plaintiff considered the offer and agreed to take on lease the said property from the defendant. Initially a Lease Deed dated 15.10.2009 was entered into between the plaintiff and the defendant for a period of 3 years setting out in detail the agreed terms and conditions of the lease. It was renewable for 2 subsequent terms of 3 years each, which was further renewed by another Lease Deed dated 08.04.2013 for a further term of 3 years. The tenure of the lease was for a period of three years with effect from 15.10.2012 to 14.10.2015 carrying a monthly rent of Rs. 2,76,000/.
2.3. That in terms of the lease deed the plaintiff deposited a sum of Rs. 8,28,000/ with the defendant towards the refundable interest free security, which was to be refunded to the plaintiff at the time of handing over of vacant and physical possession of the said premises in terms of Clause 4 of the lease deed.
2.4. The nature of the business of the plaintiff required raising temporary partition and to make temporary alterations in the premises and to Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 2 of 16 erect/ install machines/ equipments required for running the beauty salon so it was agreed and was reduced in writing in the earlier lease and even in the present lease under Clause 9 of the lease deed.
2.5. That in terms of the lease deed the plaintiff terminated the lease by service a notice dated 09.09.2014 contending therein to handover the possession on the expiry of three months and requesting the defendant to refund the security deposit of Rs. 8,28,000/ at the time of handing over the possession.
2.6. That plaintiff handed over the said premises to the defendant; at the time of handing over the keys to the defendant, representative of plaintiff asked for the refund of the security deposit at which the defendant informed them that he would be settling the issue with the Management of the plaintiff. 2.7. Plaintiff received an email from the defendant contended that the property was to be handed over in the exact condition as it was leased out through it was duly agreed that normal wear and tear would duly occur at the time of vacating the premises. Defendant also asked to clear the pending electricity and water bills of the said premises. Plaintiff erected a collapsible iron gate, front glass door & glazing which was left over the said premises at the request of the landlord. Though the defendant is also liable for the payment of the same which costs Rs. 2,75,000/.
2.8. That the defendant has refrained from returning the security deposit under the pretext of getting the repair works done and is wrongfully withholding the same without any justifiable cause and reason and is depriving the plaintiff from using its legitimate amount. 2.9. That on the insistence of the defendant with intent to amicably Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 3 of 16 resolve the dispute plaintiff agreed to have a joint inspection of the said property and as such the joint inspection was carried and nothing substantial damage to the said premises was found requiring the plaintiff to repair the same in terms of the lease deed.
2.10. The plaintiff has tried its level best to get the matter amicably settled between them. The various emails exchanged between the plaintiff and the defendant in this regard.
2.11. It is submitted that the defendant is withholding the security deposit of Rs. 8,28,000/ without any justifiable cause or reason and as such the defendant is liable to refund the amount of Rs. 8,28,000/ with a commercial rate of interest of @ 18% per annum from 09.12.2014. That the defendant has become liable to pay Rs. 10,39,140/ and is further is liable to pay pendentelie and further interest @ 18% per annum on the principal amount of Rs. 8,28,000/from the date of filing of the suit till the entire is relized from the defendant. Hence, the present suit.
3. Written Statement of Defendant. Denying the material averments of the plaint preliminary objections are taken by the defendants that Suit of the plaintiff is not maintainable as there is no cause of action to file the present suit. That in para no. 16,17 & 18 of the lease deed executed between the answering defendant and the plaintiff, plaintiff was required to provide NO DUES CERTIFICATE, SECURITY REFUND was in terms of clause 17 and TERMINATION as per clause 18. which the plaintiff has failed to do so.
3.1 It is avered that the defendant has several times requested the plaintiff to carry out the repair work in the property in question but plaintiff Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 4 of 16 did not pay heed to the request of the defendant. It is avered that the water Bill for Rs. 87,460 for the quarter ending in December 2014 and electricity bill for rupees 44,642 in respect of property in question for the period from is yet to be paid by the plaintiff.
3.2. Further it is stated that bare perusal of the photographs of the property in question would reflect that the plaintiff has negligently used the property in question during the period of its tenancy and has caused substantial damage. It is further avered by the defendant that during his visit in India he contracted a local contractor who provided the estimate of required expenses for carrying out the repair work in property in question and as per the estimates given by the contractor a sum of Rs. 4,94,585/ is required for carrying out the repair work in property in question. 3.3. Due to noncooperation of the plaintiff in settling the issue defendant is suffering huge losses as the defendant could not have further let out the property in question on rent and property in question has been lying vacant since the time it was vacated by the defendant and left in bad condition.
3.4. It is further avered that a sum of Rs. 8,28,000/ deposited by the plaintiff with the defendant as security which was to be refunded at the time for handing over physical and vacant possession of the said premises but the plaintiff failed to deliver the vacant possession of the property in question in the same form and condition it was taken, in terms lease deed. The plaintiff did not carry out any repair work in respect of the damage caused to property in question. Plaintiff is in breach of material terms of the agreement and hence is not entitle to the refund of the security. The suit be dismissed with Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 5 of 16 heavy cost.
4. Replication was filed by the plaintiff denied the averments made in the written statement and reiterated the facts stated in the plaint. The allegations of damage to the property and the non payment of the electricity and water bills were strongly refuted and denied by the plaintiff.
5. On the basis of the pleadings, following issues have been framed by the Hon'ble High Court of Delhi, vide order dated 18.07.2017:
1. Whether the plaintiff is entitled for recovery of the suit amount as claimed in para (i) of the prayer clause? OPP.
2. Whether plaintiff is entitled to any interest? If so, at what rate for which period? OPP.
3. Whether the plaintiff has not complied with all the terms and conditions of the lease deed dated 08.04.2013 agreed between the parties. OPD
4. Relief.
6.1. In order to prove his case, the plaintiff examined AR Sh. Rohan Avdhesh Gupta as PW1; Filed his evidence by way of affidavit which is Ex.PW1/A, wherein he reiterated the averments made in the plaint. During his deposition, he relied upon the documents Ex.PW1/1 to Ex/PW1/7. Ex. (PW1/1 to PW/1/5 are admitted documents). The witness was cross examined and matter was for fixed for DE.
6.2. In DE, the defendant has examined himself DW1; filed his evidence by way of affidavit Ex. DW1/A; he was examined, cross examined and discharged. Further defendant has examined Sh. Anurudh Shukla, as Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 6 of 16 DW2. Evidence by way of affidavit exhibited as Ex. DW2/A, he was cross examined and discharged. Thereafter, the matter was fixed for final arguments.
7. I have heard the submissions advanced by the both the parties. I have also perused the entire case record meticulously. I am of the considered opinion that the suit of the plaintiff be decreed in terms hereunder against defendant for the reasons stated below.
8. ISSUEWISE FINDINGS:
8. Issue no. 1, 2 and 3: All the issues are taken up together as it requires common discussion. To prove his onus plaintiff had examined AR as PW1 vide his examination in chief through affidavit exhibited as PW1/A, reiterating the averments made in the plaint. Same are not repeated herein for sake of brevity.
8.1. It is admitted case of the parties that the property was leased out to the plaintiff initially for a period of three years which was further renewed by another lease deed dated 08.04.2013 for further terms of three years @ 2,76,000/ Per Annum. The lease deed exhibited as Ex PW1/1 is an admitted document. It is also undisputed that in terms of the lease deed clause (4), plaintiff had deposited a sum of Rs. 8,28,000/ with the defendant towards the refundable interest free security. It is also admitted position that in terms of the lease deed, the tenancy was terminated vide a three months prior notice dated 09.09.2014 Ex. PW1/2 and the termination letter of the said date is also admitted document.
8.2. PW1 deposed that the plaintiff company handed over the Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 7 of 16 physical possession of the suit premises to the defendant on dated 09.12.2014; And at the time of handing over the key of the suit premises to the defendant on being asked about the refund of the security amount defendant had assured that the amount would be settled shortly. It is deposed that thereafter despite repeated reminders and number of requests defendant had refrained himself to returning the security deposit on one pretext or another. It is deposed that the defendant is malafidely with wrong intentions is withholding the said amount without any just cause and reason. 8.3. On the contrary, defendant has contended that the plaintiff has failed to comply with the terms and conditions of the lease deed; plaintiff has not provided no Dues certificate as per clause (16) before, or after, vacating the suit premises. Primarily the suit is resisted by the defendant on the ground that (a) plaintiff has not handed over the possession of the premises in its original condition (b) all the electricity and water bills were not cleared by the plaintiff. (c) a quotation dated 12.10.2014 for a sum of Rs. 4,94,585/ is filed by the defendant towards the repair and renovation work of the premises.
8.4. Since the material fact as far as security deposit is concerned it is an admitted case, in this factual background, I straight away proceed to examine the case of the parties especially the defence set up by the defendant. 8.5. Firstly, at the out set it is stated that in terms of clause 9, plaintiff was free to erect temporary partition and to make temporary alterations in the premises and to erect/ install machines/ equipment's required for running the beauty salon. Plaintiff also got the false celling redone and also got the fit outs along with the electricity / plumbing and HVAC work done in the Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 8 of 16 premises. Clause 9 is also quoted herein for ready reference ' Alteration of Premises The Lessee shall not carry out any structural additions or deletions to the demise premises without previous written consent of the lessor. The Lessees shall be free to erect temporary partitions/ alterations, install A. C. Machines, computes, telephones, DTH cable/ satellite television, or any other machines which are required for the day to day business of the lessee, without any further intimation to lessor but subject to bylaws of local administration.' 8.6. This fact also stands candidly admitted by the defendant in his crossexamination. DW1 was evasive to the suggestion if the plaintiff was at liberty to make alterations and temporarily structural changes as per their needs and requirements.
8.7. After the termination of the said lease deed plaintiff has removed the temporary partition and equipment's which were installed by the plaintiff company in the premises. Nothing to cast doubts on the testimony of the PW1 has come into his cross examination. PW1 has reiterated his terms that there was no major damage to the suit premises and thereafter with intent to have cordial relations minor modifications were also carried out. It is also deposed that a joint inspection was also carried out on 10.04.2015, the repaired work done was explained and thereafter the matter was resolved from there end. Thereafter there is no cross examination on the said aspect by the defendant. The fact of joint inspection is also admitted by the defendant with objections that even thereafter the property was not restored to its original position.
8.8. But interestingly nothing has come on record to show what all Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 9 of 16 issues remained unresolved/ pending, if any, even thereafter. DW1 deposed that all the defects in the property, and the objections regarding violation of terms of the agreement, and the detailed estimate cost of the repair were duly informed to the plaintiff vide letter dated 26.11.2014. An important fact to note is that the said cost of repair and the statement of account which was allegedly sent to the plaintiff was not produced by the defendant in support of his case. In fact, the said correspondence was placed on record by the plaintiff which apparently shows the hypothetical claims are made by the defendant on flimsy grounds. The defendant had even claimed his Air tickets fare of Rs. 78,000/ and his own fees to the tune of Rs.10,40,000/for what reason and under what term I failed to comprehend.
8.9. The temporary changes carried out by the plaintiff, as per the agreed terms, were also removed later on. And during the tenancy period and thereafter the damage caused, if any, to the property was not substantial to say that the defendant is entitle to forfeit the entire security amount.
Defendant has failed miserably to demonstrate the alleged damage to the property by leading any reliable and positive piece of evidence in terms of Sec. 73 and 74 of the contract Act.
8.10. It was normal wear and tear which occurred and was necessary for smooth functioning of their business. And in my respectful submissions the defendant should be accommodative of the said fact, in backdrop of the fact, that the property was lease out for commercial purpose and high rental charges were paid by the plaintiff and such temporary alteration is bound to occur in commercial activities, more the so, in nature of the plaintiff's business.
Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 10 of 16 8.11. DW2 was examined by the defendant to substantiate his case, to show the amount of expenses required to repair the premises. I must state testimony of DW2 is no assistance to the case of the defendant. DW2 has carried out the inspection of the property more than one and half years (approximately) from the date of handing over the possession to the defendant. What was the status of the property and the interregnum period of the property, whether the suit property was lease out to some third party or not. How and in what manner the property was utilized by the plaintiff and why it took such a long time for the plaintiff to get the property inspected, nothing convincing is coming on record.
8.12. Moreover, DW2, as reflected from his own letter head, is an electrical contractor and there is not a whisper about him carrying out any civil work. His proximity to the defendant is also not ruled out as he himself admits in the cross examination that he has homely relations with the defendant. He also does not have any licence or any other document duly approved by Govt. agencies to show that he is an approved civil contractor. 8.13. In the cross examination also there are specific admissions to highlight that chiefly he was an electrical contractor and not a civil one. In entirety his testimony does not inspire much confidence. 8.14. The reliance upon the photographs exhibited as Ex. DW1/5 to DW/1/18 is also of no assistance to the defendant. The said photographs have no evidenciary value. The date, the time, the month and the year, or for that matter, if the photographs pertains to the suit property, nothing can be deciphered therefrom. By whom it was taken, whether immediately after handing of possession or more than 2 years thereafter, as is the case with Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 11 of 16 quotation, nothing has come on record. And in absence thereof, merely filing of photographs does not prove the case of the defendant. 8.15. Even otherwise the perusal of the photographs does not indicate any structural damage or substantial damage to the property. In any case the quantum of damages cannot be measured from the bare perusal of the photographs. Therefore, not much reliance can be placed on the documents 8.16. The property has remained with the plaintiff on a commercial lease for nearly about more than 5 years, before it was duly terminated by the plaintiff. All the temporary and other structural changes were in existence during the subsistence of lease period. And it has come on record that Defendant had come to India and stayed at the premises, no objection of any nature was ever taken by the defendant. Therefore, after the lease deed has been determined, now it does not lie in the mouth of the defendant to say that the said structural changes has damaged his property. The malafide intention of the defendant is reflected from the emails dated 10.09.2014 and 11.11.2014. whereby even before the notice period has expired defendant had started taking frivolous pleas that the property is required to be handed over to its original position which was for about five and half year back. Despite the fact that he himself had permitted to carry out temporary structural changes as per the business needs. His dishonest intention is also apparent from the detailed statement of expenditure sent along with the notice dated 26.12.2014 which the defendant deliberately has not produced before the court, nor the documents allegedly sent alongwith the notice. It was a vital piece of evidence which has been deliberately withheld by the defendant Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 12 of 16 without any reason and the adverse inference may be drawn against the defendant in terms of Section 114 (g) of Evidence Act, that if produced it would be against his interest.
8.17. Taking the case of the defendant as pleaded, assuming that there was some damage to the property, was it not the duty and obligations of the defendant to get the same repaid at the earliest and should have refunded the balance amount after adjusting the total amount incurred in the repair work. In fact no renovation or repair work of the property has been done by the defendant (maybe till filing of the suit or till date, if it is done, nothing has come on record), and defendant is wrongfully withholding the security amount of plaintiff without the any justifiable reason. The delinquent conduct of the defendant is strengthened from which reflects the suit property was not repaired / or renovated after more than 2 years thereafter from the date of possession, and only the presumptive expenses in the form of quotation is placed on record vide testimony of DW2.
8.18. Now coming to the electricity and water bills: Plaintiff has deposed that all the pending dues regarding electricity and water charges were cleared and the details of the said payments were duly intimated to the defendant. The said fact is denied by the defendant however, an email dated 18.12.2014 sent by the HSBC corporation reflects that a sum of Rs. 34,340/ (outstanding electricity bill claimed by the defendant) was successfully processed and paid by and on behalf of the plaintiff. Further an email dated 30.12.2014 also reflects that the entire dues with regard to the water charges were also cleared by the plaintiff. The statement of account filed by the plaintiff further corroborates that case of the plaintiff that the said charges Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 13 of 16 towards electricity and water were duly paid in the month of December itself. The amounts are reflected to have been debited from their accounts qua the said outstanding dues. Moreover, it has come from the cross examination of DW1 there were two electricity and water meters in the said premises. The cloud over the liability of the plaintiff qua the specific meter also hinges thereupon in light of the fact that plaintiff was using the premises at ground floor and admittedly not the first floor and basement of the property which was utilized by defendant for his personal use.
8.19. PW1 in the cross examination, on a question by the defendant regarding taking NOC from electricity and water departments, has specifically deposed that concerned officials of the department had informed that no NOC is required once all the pending bills were cleared, and thereafter, there is no cross examination on the said aspect. Besides that, even otherwise, the bills generated for the successive months do reflects the previous payments made by the consumer. Thus, in all probability, the defence as put forth by the defendant qua the said electricity and water bills is futile attempt on the part of the defendant to wriggle out of his contractual obligations to refund the security amount. In light of the facts indicated above, the contention of the defendant to say 'No dues certificate' was provided and plaintiff was in breach of contractual obligations is apparently hollow and without any substance. It is too highper technical and pedantic approach of the defendant to seek for NOC when he presumably was aware about clearance of electricity and water bills by the plaintiff. 8.20. Thus, summing up in entirety of the fact I feel that there appears to be a ring of truth in the case of the plaintiff because if the defendant was Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 14 of 16 sincere or genuine and assuming that there was some damages to the property or for that matter breach of terms, it was open to the defendant to retain such amount as it thought fit, out of the security deposit and refund the balance. Admittedly no such offer was made, rather as indicated above no such repair or renovation was carried out.
8.21. In terms of clause 17 of the Lease deed the duty is cast on the defendant to refund the security after meeting out the liabilities. The alleged repair work could well have been done by the defendant/ landlord retaining a part of security deposit. Therefore, it is quite clear that the defendant deliberate was not inclined to given the security deposit with intent to misappropriate the Security deposit and significantly no counterclaim or other suit has been filed by the defendant till date to seek his damages if there was any.
8.22. In so far as interest part is concerned admittedly it was a commercial transaction between the parties, properties were lease out for commercial purposes and taking note of the delinquent conduct of the defendant and interest @ 18 % on the security amount would be justified in the facts of the case.
8.23. The issues accordingly thus stands decided in favour of the plaintiff and against the defendant in terms thereof.
8.24. Before parting, I would also like to refer to the decision of Hon'ble High Court in H. S. Bedi Vs. National Highway Authority of India RFA 784/10 wherein great concern has been shown by the Hon'ble Court regarding nonpayment of the security deposit by the landlord after Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 15 of 16 determination of the lease deed. The Hon'ble Court has gone even to the extent to state that there is a need for statutory protection of security deposits of the tenants.
11. Relief: Thus taking note of the above discussion and findings thereon, I am of the considered opinion that plaintiff has proved its case and is entitled to decree for a sum of Rs. 8,28,000/(security amount) against the defendant alongwith interest @ 18% per annum from the date of filing of the suit as claimed in prayer, till the realization of the decreetal amount. The suit is disposed off as decreed.
Cost of the suit is also allowed to the plaintiff.
Decree sheet be drawn accordingly.
File be consigned to the record room after due compliance.
Announced in the open Court (Anil Antil)
Today on 10.04.2018 ADJ05, South East, District
Saket Court, New Delhi
Civil Suit No. 208642/16 Lakme Lever Private Limited Vs. Mr. Rajeev Agarwal Page no. 16 of 16