Delhi District Court
Sh. Satish Kapur vs M/S Sumeru Knits on 7 October, 2014
IN THE COURT OF SH BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Civil Suit No. 380/12
1. Sh. Satish Kapur,
S/o of Sh. Lajpat Rai Kapur,
2. Sh. Gurav Kapur,
S/o Sh. Satish Kapur,
3. Ms. Sonya Kapur,
W/o : Sh. Rajpal Singh,
All residents of:
202 Cariappa Marg
Sainik Farm, New Delhi .......... Plaintiffs
Versus
1. M/s Sumeru Knits,
(a partnership Firm )
2. Sh. Jaikumar Krishnasamy,
Partner, M/s Sumeru Knits,
Both to be served at:
10 Pulyammarathottam,
1st Street, Mangalam Road,
Tirpur, Tamilnadu, 641604
3. M/s Saravana Spinining Mills Private Ltd,
Regd. Off: Batlangundu Road,
Pithalaipatti, Dindigul, 624002
......... Defendants
CS No. 380/12
Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 1 of 23
SUIT FOR RECOVERY OF RS. 10,94,972/
(RUPEES TEN LACS NINETY FOUR THOUSAND NINE
HUNDRED SEVENTY TWO ONLY)
(a) Date of institution : 30.04.2009
(b) Date when judgment reserved : 02.09.2014
(c) Date of Judgment : 07.10.2014
JUDGMENT:
1. Vide this judgment I shall dispose of the present suit filed by the plaintiff against the defendants for recovery of Rs.10,94,972/ alongwith pendente lite and future interest @ 18% per annum from the date of filing of the suit till the realization of the amount.
2. Brief facts of the case as set out in the plaint are that plaintiffs are the joint owners of Office Space No. 209 having super area of approx. 1568 sq. ft. on the second floor of the commercial complex called Pacific Square, situated in Village Silokhara, Tehsil & District Gurgaon. The defendant no. 1 is a partnership firm and defendant no. 2 is partner of defendant no. 1 firm. The plaintiffs vide lease deed dated 25.03.2005 let out the aforesaid premises to defendants. As per clause 3 (c) of the said lease deed, the initial duration of lease period was nine years from the date of signing the said lease deed. It was also agreed that the initial lockinperiod of the lease is three years and either party shall not be entitled to terminate the CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 2 of 23 lease before the expiry of 3 years of initial lease period i.e. lockin period. However, the defendants vacated and handed over the possession of the premises to the plaintiffs on 09.6.2006 i.e. 21 months and 16 days before the expiry of first 3 years lease period without any prior notice in an illegal manner and the rent payable by the defendants for the initial duration of three years of lease period was Rs. 51,744/ per month. The plaintiffs sent a statement of account demanding the defendants to pay a sum of Rs. 8,14,105/ vide a letter of demand dated 14.05.2007 in which the allegations of the defendants vide their legal notice dated 13.04.2007 were also refuted by the plaintiffs. The defendants failed to respond the said demand raised by the plaintiffs. The defendants vide their communication dated 13.04.2007 admitted that the parties have entered into a written lease agreement on 25.03.2005 with respect to the premises in question and the defendants are fully aware that if they choose to terminate the lease before the expiry of 3 years i.e. lockin period, they shall be liable to pay the rent of the balance period of 3 years. The plaintiffs vide legal demand notice dated 22.12.2008 gave final opportunity to the defendants to pay a sum of Rs. 8,14,105/ along with interest thereon @ 18% per annum from 14.05.2007 when the principal was demanded, within a period of 10 days from the receipt of the said notice, but the defendants failed to pay the dues payable by them despite service of legal notice. Hence, the CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 3 of 23 present suit.
3. The plaintiffs have prayed for passing a decree in their favour and against the defendants for a sum of Rs. 10,94,972/ along with pendente lite and future interest @ 18% per annum from the date of filing the present suit till realization of decreetal amount.
4. The defendant no. 2 contested the suit by filing the written statement contending that defendant no. 1 M/s Sumeru Knits, originally constituted as a partnership concern was converted into a Private Limited Company M/s Sumeru Knits Pvt. Ltd. on 31.03.2008. Later on, as per the order of the Hon'ble High Court of Chennai dated 15.12.2008, M/s Sumeru Knits Pvt. Ltd. was amalgamated with M/s Sri Saravana Spinning Mills Pvt. Ltd. with retrospective effect from 01.04.2007 and hence suit is not maintainable as defendant no. 1 is no longer in existence. It is further contended that this court has no territorial jurisdiction to try and entertain the present suit as the property in question is situated at Gurgaon and no cause of action has arisen in Delhi. The defendant no. 2 has further contended that plaintiffs have concealed the material facts in relation to the purported lease deed. It is stated that purported lease deed is an unregistered document and is thus non enforceable in law and even the proper stamp duty has not been paid by the lessor on the said purported lease deed. It is the plaintiffs who in fact terminated the lease before the CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 4 of 23 expiry of the lockinperiod. The plaintiffs had approached the defendants and made a request to vacate the premises as they require the premises for certain urgent personal needs. Accordingly, on the request of the plaintiffs, the defendants vacated the said premises on 09.06.2006 and when they requested the plaintiffs to refund the security deposit and advance rent totaling to Rs. 3,10,464/, the plaintiff sought nine months time to refund the same. But, even after lapse of nine months, the plaintiff did not refund the said amount of Rs. 3,10,464/ and the defendants were constrained to issue a legal notice date dated 13.04.2007 claiming the aforesaid amount of security deposit and advance rent totaling to Rs. 3,10,464/. The plaintiffs as a counter blast to the said claim of the defendants got issued a reply dated 14.05.2007 and thereafter a separate legal notice dated 22.12.2008, whereas the defendants have paid all amounts due under the agreement without fail which has been duly received by the plaintiffs. Other contents of the plaint are stated to be wrong and denied and the defendant no. 2 has prayed for dismissal of the suit.
5. Along with the written statement, counter claim was also filed by the defendant no. 2 stating that in terms of lease deed dated 25.03.2005, the defendant no. 2 had remitted a security deposit and advance rent totaling to Rs. 3,10,464/ to the plaintiffs. On the request of the plaintiffs, the defendants vacated the premises which was the CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 5 of 23 subject matter of the lease deed dated 25.03.2005 on 09.06.2006 and requested the plaintiffs to refund the security deposit and advance rent totaling to Rs. 3,10,464/. But the plaintiffs even after nine months, time sought by the plaintiffs, did not refund the said amount and the defendants were constrained to issue a legal notice dated 13.04.2007 claiming the aforesaid amount of Rs. 3,10,464/ from the plaintiffs.
6. The defendant no. 2 prayed for passing a decree against the plaintiffs for a sum of Rs. 3,10,464/ along with pendente lite and future interest @ 18% per annum from the date of filing the counter claim till realization.
7. The plaintiffs filed replication cum written statement to the written statement/ counter claim of the defendants stating that lease deed dated 25.03.2005 was entered into between the parties at New Delhi, the defendants made the payments of rent in respect of the premises at Delhi and also conferred territorial jurisdiction to the Delhi Courts in respect of all matters or disputes or differences arising under or in connection with or in relation to the said lease deed and as such this court has territorial jurisdiction to entertain the present suit. It is further stated that after settling of the amount of Rs. 3,10,464/, the defendants are liable to pay a sum of Rs. 8,14,105/ to the plaintiffs. Other contents of the plaint have been reiterated and reaffirmed and those made in the written statement and counter claim have been CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 6 of 23 controverted.
8. It is relevant here to mention that in view of the stand taken by the defendant no. 2 in his written statement that defendant no. 1 which was originally constituted as a partnership concern was converted into a Private Limited Company M/ Sumeru Knits Pvt. Ltd. on 31.03.2008 and later on was amalgamated with M/s Sri Saravana Spinning Mills Pvt. Ltd. pursuant to the order of Hon'ble High Court of Chennai, the plaintiffs moved an application u/o 6 rule 17 CPC seeking amendment in the plaint showing the name of said company M/s Sri Saravana Spinning Mills Pvt. Ltd. as defendant no. 3 in the memo of parties. The said company M/s Sri Saravana Spinning Mills Pvt. Ltd. also moved an application u/o 1 rule 10 CPC for its impleadment in the present case. Both the applications were allowed vide order dated 03.08.2011 and accordingly the said company M/s Sri Saravana Spinning Mills Pvt. Ltd. was impleaded as defendant no. 3 in the present suit.
9. The defendant no. 3 company which was impleaded subsequently did not file the written statement and chose not to contest the suit of the plaintiffs.
10. From the pleadings of the parties, following issues were framed for adjudication vide order dated 19.12.2012: CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 7 of 23
1. Whether this Court has territorial jurisdiction to try and decide the present suit ? OPD
2. Whether the defendants vacated the premises bearing office space No. 209 on the second floor of commercial complex Pacific Square situated in Village Silokhara Tehsil & District Gurgaon on the request of plaintiff ? OPD
3. Whether the plaintiff is entitled to a decree in the sum of Rs. 10,94,972/ ? OPD
4. Whether the plaintiff is entitled to any interest on the aforesaid amount. If so, at what rate and for which period ?
5. Whether defendants are entitled to recover a sum of Rs. 3,10,464/ from the plaintiff as claimed in the counter claim? OPD
6. Whether the defendants are entitled to any interest on the aforesaid amount. If so, at what rate and for which period ?
7. Relief
11. Thereafter, the plaintiffs in order to prove their case, examined plaintiff no. 1 Sh. Satish Kapur as PW1 who filed his evidence by way of affidavit which is Ex. PW1/1 wherein he deposed more or less as per the averments made in the plaint. During his deposition, he has also placed on record the lease deed dated 25.03.2005 as Ex. PW1/A, notice dated 13.04.2007 sent by the CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 8 of 23 defendant claiming Rs. 3,10,464/ as Ex. PW1/B, copy of demand letter dated 14.05.2007 sent to defendant as Ex. PW1/C, copy of legal notice dated 22.12.2008 as Ex. PW1/D, postal receipt and UPC receipt showing dispatch of same as Ex. PW1/E & Ex. PW1/F respectively. Plaint is Ex. PW1/G.
12. The plaintiffs have also examined Ms. Vinod Kapur as PW2 who also filed her evidence by way of affidavit wherein she deposed that lease deed dated 25.03.2005 was signed by the plaintiffs and defendant no. 2 being partner of defendant no. 1 in her presence and she also signed the said lease deed in their presence as a witness to the same.
13. It is pertinent to mention here that despite availing sufficient opportunities, the defendant no. 2 failed to lead evidence in support of his defence and counter claim and accordingly his evidence was closed vide order dated 30.11.2013.
14. I have heard the Ld. Counsel for the plaintiff. The Ld. Counsel for defendants made few submissions and thereafter did not turn up for concluding the arguments. I have also perused the record carefully.
15. On the basis of material available on record, my issue wise findings are given as under:
CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 9 of 23 Issue No. 1
Whether this Court has territorial jurisdiction to try and decide the present suit ? OPD
16. The onus to prove this issue was on the defendant no. 2. But, the defendant no. 2 has not led any evidence nor the Ld. Counsel for defendant has made any argument as to how this court has no territorial jurisdiction to try and entertain the present suit. This issue has been framed on the basis of plea raised by the defendant no. 2 in the written statement that the property which is the subject matter of the suit is situated at Gurgaon and the office of the defendants was in Tirupur, Tamil Nadu and no cause of action has arisen in Delhi and hence suit is liable to be dismissed on the ground of jurisdiction.
17. The plaintiffs have filed the present suit against the defendants for recovery of Rs. 10,94,972/ and not for recovery of any immovable property. In these facts, Section 20 of CPC shall be applicable for deciding the issue whether this court has territorial jurisdiction or not to try and entertain the present suit.
18. Section 20 of the Code of Civil Procedure (CPC) reads as under:
Other suits to be instituted where defendants reside or cause of action arises Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 10 of 23
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain;
(b) any of the defendants, where there are more than one, at the time of the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
19. By way of present suit, the plaintiffs have claimed the damages/rentals from the defendants on the ground that a lease deed dated 25.03.2005 was executed between the parties by which the premises was let out to the defendants and it was agreed that initial duration of the lease period would be nine years and the initial lockin period of the lease would be three years and either party shall not be entitled to terminate the lease before the expiry of lockin period i.e before the expiry of 3 years of initial lease period. But, the defendants have vacated the premises before the expiry of lockin period and hence they are liable to pay the rentals of the balance period of 3 years as per agreed terms and conditions of the lease deed. The plaintiffs have also placed on record the original lease deed dated 25.03.2005 as Ex. PW1/A, which is not in dispute.
CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 11 of 23
20. Perusal of lease deed Ex. PW1/A shows that the said lease deed is made and executed at New Delhi. It is also evident that the lease was for the period of more than one year and the lease deed Ex. PW1/A is not a registered document. Therefore, by virtue of Section 17 r/w Section 49 of the Registration Act, the lease deed Ex. PW1/A is not admissible in law and cannot be read in evidence. However, as per proviso to Section 49 of the Registration Act, the lease deed Ex. PW1/A can be read for collateral purposes. Since the lease deed is made and executed at New Delhi, part cause of action has arisen at New Delhi i.e. within the territorial jurisdiction of this court. Hence, it cannot be said that this court has no territorial jurisdiction to try and entertain the present suit. Accordingly, this issue is decided against the defendant.
Issue No. 2
Whether the defendants vacated the premises bearing office space No. 209 on the second floor of commercial complex Pacific Square situated in Village Silokhara Tehsil & District Gurgaon on the request of plaintiff ? OPD
21. The defendant no. 2 has taken a plea in the written statement that plaintiffs had approached the defendants and made a request to vacate the premises as they require the premises for certain urgent personal need and hence the defendants on the request of the CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 12 of 23 plaintiffs vacated the premises before expiry of three years on 09.06.2006. This fact has been denied by the plaintiff in the replication. Therefore, the onus was upon the defendant no. 2 to prove the said fact that the defendants have vacated the premises on the asking of the plaintiffs. But except giving a suggestion to PW1 in his crossexamination that he had requested the defendant to vacate the lease premises as same was required by him for his personal requirement, which was denied by the witness, the defendant no. 2 has not led any evidence to prove that premises were vacated by them on the request of the plaintiffs. In the absence of any evidence, orally or documentary, the said plea of the defendant no. 2 remained unsubstantiated. Hence, this issue is decided against the defendant no. 2.
Issue No. 3 and 4
Whether the plaintiff is entitled to a decree in the sum of Rs. 10,94,972/ ? OPP Whether the plaintiff is entitled to any interest on the aforesaid amount. If so, at what rate and for which period ?
22. Both the issues are taken up together for discussions being interlinked. The facts, as discussed herein above, are within the narrow compass. There is no dispute that the plaintiffs have let out the premises to the defendants vide written lease deed dated 25.03.2005 CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 13 of 23 Ex. PW1/A. It is also not in dispute that initial duration of lease period was nine years and the initial lockinperiod of the lease was three years. As per clause 3 (c) of the lease deed Ex. PW1/A, it was also agreed between the parties that if the lessee terminates the lease before the expiry of first 3 years i.e. lockinperiod, in such case, the lessee shall be liable to pay the rent of the balance period of 3 years in lieu thereof.
23. The plaintiffs have claimed that the defendants have vacated the premises on 09.06.2006 i.e. 21 months and 16 days before the expiry of first 3 years lease period and that too without any prior notice in an illegal manner and, therefore, the defendants are liable to pay the rent of the balance period of three years. Hence, the plaintiffs by way of present suit are claiming a sum of Rs. 10,94,972/ from the defendants towards rentals of the balance period of three years including interest thereon.
24. The defendant no. 2 in the written statement though has not disputed the lease deed Ex. PW1/A and has also admitted that they have vacated the premises before expiry of first three years lease period i.e. lockinperiod, but it was contended that the defendants have vacated the premises at the request of the plaintiffs who had approached the defendants and asked them to vacate the premises as they required the premises for their urgent need. However, the said CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 14 of 23 plea of defendant no. 2 is held to be unsubstantiated under Issue No. 2 and hence same cannot be accepted.
25. The defendant no. 2 has also taken a plea that the purported lease deed is an unregistered document and is thus not enforceable in law. He further contended that even proper stamp duty has not been paid by the lessor on the said purported lease deed and the said document is inadmissible in evidence and the contents of such purported lease deed cannot be taken note of.
26. Before proceeding further, in the light of aforesaid objections raised by the defendant no. 2 in his written statement, it would be appropriate to discuss the relevant provisions of law: ● Section 17 of The Registration Act reads as under: Documents of which registration is compulsory - (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 or The Indian Registration Act 1871 or the Indian Registration Act 1877, or this Act came or comes into force,namely,
(a) ............
(b) ..........
(c) ..........
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e)...........
● Section 49 of The Registration Act reads as under: Effect of nonregistration of documents required to be CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 15 of 23 registered No document required by section 17 (or by any provision of the Transfer of Property act, 1882) to be registered shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.
● Section 106 of The Transfer of Property Act, 1882 reads as under: Duration of certain leases in absence of written contract or local usage - (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month's notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice (2) (3) (4) ● Section 107 of The Transfer of Property Act, 1882 reads as under: Leases how made - A lease of immovable property from year CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 16 of 23 to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.
Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.
27. By way of present suit, the plaintiffs are seeking damages from the defendants on the ground of breach of terms and conditions of the lease agreement Ex. PW1/A claiming that the defendants have vacated the premises before expiry of initial period of three years i.e lock in period which was not permissible as per clause 3 (c) of the lease agreement Ex. PW1/A.
28. Perusal of lease deed Ex. PW1/A reveals that initially the lease period was for nine years which was extendable for further period on mutual agreement of the parties therein and the initial lock inperiod was three years and it was agreed that either of the party shall not be entitled to terminate the lease before the expiry of three CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 17 of 23 years of initial lease period i.e. lockinperiod. It is further revealed that lease deed Ex. PW1/A is made on the stamp paper of Rs. 50/ and is an unregistered document.
29. As per Section 107 of the Transfer of Property Act, a lease of immovable property for a period of more than one year can be made only by a registered instrument. But if a lease of immovable property for a term of more than one year is not made by a registered deed or is made orally, then in such cases the presumption about the duration of lease from month to month under section 106 of the Act shall apply.
30. As per section 49 of the Registration Act, if a document compulsorily required to be registered as required under Section 17 of the Act or under any provision of the Transfer of Property Act, is not registered, the same shall not be received in evidence of any transaction affecting such property or conferring such power. Since the lease deed Ex. PW1/A is an unregistered document and the initial lock in period of lease was of three years i.e. more than one year, it is not admissible in evidence. The consequences of the lease deed Ex. PW1/A being not registered, which was compulsorily required to be registered as the lease was for more than one year, are contemplated under Section 106 of the Transfer of Property Act. As per clause 1 of Section 106 of the Act, in the absence of registered lease of CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 18 of 23 immovable property for a period of more than one year, the same shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days' notice.
31. In the present case, the plaintiffs have claimed damages on account of breach of contract/lease stating that the defendants have vacated the premises before completion of initial period of three years i.e lockinperiod, but since the lease deed Ex. PW1/A is unregistered, it cannot be said to be a fixed term tenancy for three years between the parties as per provisions of Section 107 of the Transfer of Property Act and it shall be deemed to be a month to month tenancy as per Section 106 of the Transfer of Property Act which was terminable on 15 days notice by either of the parties. As such, when the tenancy was month to month and not a fixed term tenancy, then the defendants cannot be held liable to pay the rent for the remaining period of three years in the absence of fixed term tenancy between the parties and the tenancy being month to month came to an end with the surrender of the suit premises by the defendants.
32. The Counsel for the plaintiffs has heavily relied upon the judgment of the Hon'ble High Court of Madras in Muruga Mudaliar (Deceased) & Ors. Vs. Subha Reddiar AIR (38) 1951 Madras 12 in support of his contention that suit for damages on account of breach of contract is maintainable even if the lease is not registered. CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 19 of 23
33. There can be no deviation from the law laid down in the aforesaid authority, but in the facts and circumstances of the present case, the said authority is not applicable. In the present case, the suit of the plaintiffs is based on the contents of the lease deed Ex. PW1/A. Since as per section 107 of the Transfer of Property Act, the lease for a period exceeding one year can be made only by a registered document and in case same is not done, the provisions of Section 106 of the Act comes into play. Since the lease deed Ex. PW1/A is not registered, as per section 106 of the Transfer of Proper Act, the said lease deed Ex. PW1/A is a lease from month to month and not a fixed term tenancy for three years. Therefore, the defendants cannot be said to be liable to pay rentals for remaining period as it was not a fixed term tenancy agreement between the parties.
34. The Ld. Counsel for the plaintiff has also relied upon AIR 1962 Supreme Court 1314, AIR 1955 HYD 104, AIR 1964 J&K 26, AIR 1983 Punjab & Haryana 256, AIR 1969 Delhi 59. I have gone through the said judgments, but same are not applicable in the facts and circumstances of the present case.
35. In the light of aforesaid discussions, the plaintiff cannot be said to be entitled for the rentals for the balance period of three years as claimed in the suit. Consequently, the plaintiff is also not entitled to the interest. Accordingly, the issues no. 3 and 4 are decided CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 20 of 23 against the plaintiff.
Issue No. 5 & 6
Whether defendants are entitled to recover a sum of Rs. 3,10,464/ from the plaintiff as claimed in the counter claim? OPD Whether the defendants are entitled to any interest on the aforesaid amount. If so, at what rate and for which period ?
36. Both the issues are interlinked and as such are being taken up together for discussion. The defendant no. 2 in the counter claim has claimed Rs. 3,10,464/ from the plaintiffs on account of security deposit and advance rent remitted to the plaintiffs. The plaintiffs in their written statement to the counter claim have not denied the said fact that an amount of Rs. 3,10,464/ was taken by them as security amount and advance rent. However, the plaintiffs have claimed that since the defendants have vacated the premises before the expiry of lockin period, the said amount is liable to be compensated towards the balance period of three years and after adjusting the said amount, the defendants are liable to pay an amount of Rs. 8,14,105/.
37. Though the defendant has not led any evidence, but there is no dispute that defendant had remitted security deposit and advance rent totaling to Rs. 3,10,464/ , which was refundable at the time of vacation of the premises. Admittedly, the defendant has vacated the premises on 09.06.2006 and the plaintiffs have not refunded the same CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 21 of 23 amount. The defendant vide legal notice dated 13.04.2007 Ex. PW1/B asked the plaintiffs to refund the amount of Rs. 3,10,464/. The plaintiff while replying to the said legal notice Ex. PW1/C dated 14.05.2007 admitted the deposit of Rs. 3,10,464/, but it was contended that after adjusting the said amount, the defendants are liable to pay Rs. 8,14,105/ on account of rentals of the balance lockin period.
38. As such, there is no dispute that an amount of Rs. 3,10,464/ is lying with the plaintiffs remitted by the defendant as security deposit. In view of my findings under Issue No. 3 & 4, as I have held that plaintiffs are not entitled to the rentals for the balance period of three years, the defendants are entitled to recover the aforesaid amount of Rs. 3,10,464/ from the plaintiffs as they have vacated the premises on 09.06.2006. The said amount has been kept by the plaintiffs and has not been paid back to the defendants even after vacation of the premises by the defendants, therefore the defendants are also entitled to interest @ 9% p.a. on the aforesaid amount from filing of the suit till realization of the amount. Accordingly, these issues are decided in favour of the defendants and against the plaintiffs.
RELIEF
39. As a sequel to my findings under Issue No. 3 & 4, the suit CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 22 of 23 of the plaintiffs is dismissed. As a sequel to my findings under Issue No. 5 & 6, the counter claim of the the defendants is decreed for a sum of Rs. 3,10,464/ in favour of the defendants and against the plaintiffs along with interest @ 9% p.a. from filing of the suit till realization of the decreetal amount. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court (Balwant Rai Bansal)
on 7th October, 2014 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 380/12
Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 23 of 23
CS No. 380/12
Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors.
07.10.2014
At 4.00 PM
Present: None.
Vide my separate judgment of even date, the suit of the plaintiff is dismissed and the counter claim of the defendants is decreed in favour of the defendants and against the plaintiffs. Decree sheet be prepared in terms of the judgment.
File be consigned to record room.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 07.10.2014 CS No. 380/12 Satish Kapur & Ors. Vs. M/s Sumeru Knits & Ors. Page 24 of 23