Delhi District Court
Perfetti Van Melle India Pvt. Ltd vs Suresh Kumar Bhayana on 6 June, 2018
IN THE COURT OF MS. DHANASHREE DEKA:CIVIL JUDGE05:
TIS HAZARI COURTS, DELHI
Suit No.:593217/2016
Perfetti Van Melle India Pvt. Ltd.
Having its Corporate Office at
Global Business Park,
Tower 'A', 1st Floor,
Mehrauli Gurgaon Road,
Gurgaon122002, Haryana. ....Plaintiff
Versus
1. Suresh Kumar Bhayana
B9, Mayfair Gardens,
New Delhi110016.
2. M/s Bhayana Interiors & Furnishers Pvt. Ltd.
Through: Suresh Kumar Bhayana
Regd. Office: 7, Factory Road,
New Safdarjung Hospital,
New Delhi.
3. R.V.Constructions
Through: Vikas Bhayana Proprietor
Regd. Office: N117, Ground Floor,
Panscheel Park,
New Delhi. ....Defendants
CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 1 of 20
SUIT FOR RECOVERY OF Rs.2,83,200/.
Date of Institution of suit : 02.06.2008
Date of judgment : 06.06.2018
JUDGMENT
1. Vide this judgment, I shall decide the present suit filed by the plaintiff against the defendants for recovery of Rs.2,83,200/.
2. Brief facts of the case, as per the plaint, is as under:
(a) The plaintiff company, formerly known as Perfetti India Ltd./Perfetti India Pvt. Ltd., is a company incorporated under the Companies Act, 1956 and having its corporate office at Global Business Park, TowerA, 1st Floor, Mehrauli, Gurgaon Road, Gurgaon122022 and is engaged in the business of manufacture and sale of confectionery products including chewing gum, bubble gum & toffees etc.
(b) Sh. Anand Tiwari, Senior Executive (Legal) of the plaintiff company who has signed and filed this plaint is the duly authorized representative of the plaintiff company.
(c) The plaintiff had taken on lease a part of the farm house premises namely Bhayana Farm situated at Kapashera, New Delhi CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 2 of 20 110065 comprising of one drawing room, one dining room, three bed rooms with attached bath rooms, kitchen, swimming pool, tennis court, two servant quarters with toilet facilities, lawns and independent drive way (hereinafter referred to as 'suit property') from defendant no.1 by way of lease agreement dated 17.09.2002. The lease agreement dated 17.09.2002 was renewed vide lease agreement dated 23.09.2004, for a period of two years, at a monthly rent of Rs.60,000/.
(d) On 17.09.2002, the plaintiff also entered into a Hiring Agreement with defendant no.2, as per which plaintiff obtained certain fixtures, fittings and equipments from defendant no.2 on hiring basis. The said Hiring Agreement was renewed by the parties by way of execution of Hiring Agreement dated 23.09.2004.
(e) The plaintiff also simultaneously entered into a maintenance agreement with defendant no.3 for the purpose of maintenance of swimming pool, tennis court and health club etc. in the suit property. The said maintenance agreement was renewed by the plaintiff and defendant no.3 and a maintenance agreement dated 23.09.2004 was entered into between them. The agreement dated 23.09.2004 was to be concurrent, coexistent and coterminus with lease agreement dated 23.09.2004 executed between plaintiff and defendant no.1 and another lease agreement dated 23.09.2004 CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 3 of 20 executed between plaintiff and a third person namely Ramesh Chander Bhayana.
(f) Under the renewed lease agreement dated 23.09.2004, the plaintiff deposited an amount of Rs.1,80,000/ with defendant no.1 as interest free refundable security deposit, which was to be refunded by defendant no.1 upon expiry of the said deed or upon earlier termination of the same. On 28.09.2006, vacant possession of the suit property was handed over by the plaintiff to the defendant no.1, however, defendant no.1 failed to refund the aforesaid security deposit of Rs.1,80,000/, which remains unpaid till date.
(g) Defendant no.1 with malafide intention sent a letter dated 04.10.2006 on behalf of the defendant no.2 to the plaintiff, alleging that certain items as mentioned in the said letter were missing from the suit property. The said letter was replied to by the plaintiff vide his letter dated 19.12.2006.
(h) An amount of Rs.45,000/ as per Clause 3 of the maintenance agreement dated 23.09.2004 and another amount of Rs.75,000/ as per Clause 3 of the hiring agreement dated 23.09.2004, was also to be refunded to the plaintiff on the date of handing over the possession of the suit property i.e. on 28.12.2006. The said amount was refunded to the plaintiff only on 27.11.2007.
CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 4 of 20 In this background, the plaintiff has filed the present suit for recovery of Rs.2,83,200/ out of which Rs.1,80,000/ is the amount claimed in terms of lease agreement dated 23.09.2004, Rs.72,000/ as interest on the aforesaid sum of Rs.1,80,000/ at the rate of 24% p.a. from the date of handing over the possession of the suit property i.e. from 28.09.2006 till filing of the suit and Rs.31,200/ as the interest amount at the rate of 24% p.a. on the refunded amount of Rs.1,20,000/ from the date it became due i.e. from 28.09.2006 till date of its payment i.e. 27.11.2007.
3. Vide its written statement, the defendants averred that the lease agreement, maintenance agreement and hire agreement, each dated 23.09.2004, were concurrent, coexistent and coterminus and as such, one agreement in absence of the other had no independent status. It is also averred that the security deposit was to be refunded to the plaintiff only on compliance of Clause 17 of the lease agreement dated 23.09.2004, i.e. only on the condition that plaintiff hands over the vacant possession of the suit property in good condition. Defendants alleged that when the plaintiff handed over the possession of the suit property, it was not in a proper habitable condition, as required under Clause 17 of lease agreement dated 23.09.2004. Same was informed to the plaintiff by the defendants vide letter dated 04.10.2006. It is further CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 5 of 20 alleged that defendants incurred an expense of Rs.30,000/ for repainting the walls of the suit property as substantial damage was caused to the same by the plaintiff. All other allegations in the plaint have been denied. The defendants prayed for dismissal of the suit alleging that the same is devoid of merit.
4. Vide its replication, plaintiff has denied the averments in the WS of defendants and has reiterated the averments in the plaint.
5. Vide order dated 30.10.2014, Ld. Predecessor of this court, framed the following issues:
(i) Whether the plaintiff is entitled for recovery of Rs.1,80,000/ towards refundable security deposit in terms of lease deed dated 23.09.2004 alongwith the interest as prayed for? OPP
(ii) Whether the plaintiff is entitled for interest of delayed refund of security deposit under the maintenance agreement dated 23.09.2004 and hire agreement dated 23.09.2004 alongwith pendente lite and future interest as prayed for? OPP
(iii) Whether defendant is entitled to adjust of the security deposit amount towards alleged maintenance? OPD
(iv) Relief.
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6. Matter was then put up for PE. Sh. Anand Tiwari, AR of the plaintiff company stepped into the witness box as PW1. He filed and tendered his evidentiary affidavit as Ex.PW1/A and relied upon following documents:
i. Copy of the Power of Attorney dated 01.08.2005 as Ex.PW1/1 (OSR).
ii. Original lease deed dated 17.09.2002 as Ex.PW1/2. iii. Original payment receipt issued by the defendant as Ex.PW1/3.
iv. Original lease deed dated 23.09.2004 as Ex.PW1/4. v. Letter dated 30.09.2004 of the plaintiff as Ex.PW1/5. vi. Certificate dated 06.10.2010 issued by City Bank as Ex.PW1/6.
vii. Statement of account as Ex.PW1/7.
viii. Original hiring agreement dated 17.09.2002 as Ex.PW1/7. ix. Original hiring agreement dated 23.09.2004 as Ex.PW1/8. x. Original maintenance agreement dated 01.10.2002 as Ex.PW1/9.
xi. Original maintenance agreement dated 23.09.2004 as Ex.PW1/10.
xii. Original letter dated 04.10.2006 of the defendant no.1 as Ex.PW1/11.
CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 7 of 20 xiii. Original of letter dated 19.12.2006 written by the plaintiff to defendant no.1 as Ex.PW1/12.
xiv. Original of letter dated 31.01.2007 as Ex.PW1/13. xv. Three original letters written by the plaintiff, each dated 02.11.2007, as Ex.PW1/14.
xvi. Two letters written by the plaintiff to defendant no.1, both dated 27.11.2007, as Ex.PW1/15.
xvii. Letter dated 27.11.2007 of defendant no.1 as Ex.PW1/16. xviii. Legal notice dated 01.04.2008 as Ex.PW1/17 and its postal receipt as Ex.PW1/18.
Counsel for defendant cross examined PW1.
7. Sh. Karan Mitra, Assistant Manager of City Bank, Delhi Branch, Connaught Place, Delhi was summoned as PW2 who produced summoned record i.e. original statement of account of the plaintiff company maintained with the City Bank for the period from 01.01.2002 to 31.12.2004, which was exhibited as Ex.PW2/1 (colly) and certificate under Section 65B of Indian Evidence Act, 1872 in support of the same, which was exhibited as Ex.PW2/2. He also placed on record a letter dated 26.05.2016 which was exhibited as Ex.PW2/3. He was cross examined by counsel for defendants.
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8. Thereafter, vide separate statement of counsel for plaintiff recorded on 26.05.2016, PE was closed. Matter was then put up for DE.
9. Despite multiple opportunities being granted, defendants failed to lead any DE. Consequently, right of the defendants to lead DE was closed vide order dated 22.05.2017 of the Ld. Predecessor. Matter was then listed for final arguments.
10. Final arguments heard. Records perused.
My issue wise findings are as follows:
11. For a reasoned flow of the judgment, Issue no.3, onus of which placed upon the defendants and is framed on the pleadings of the defendants is taken up prior to Issue no. 1 and 2, onus of which are placed upon the plaintiff.
Issue No. 3"Whether defendant is entitled to adjustment of the security deposit amount towards alleged maintenance? OPD"
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12. Onus of proving this issue is upon the defendants. Case of the defendants is that the suit property which was leased out by defendant no.1 to the plaintiff, was not returned by the plaintiff in a habitable condition. As such, plaintiff failed to comply with Clause 17 of the lease agreement dated 23.09.2004 which required the plaintiff to return the suit property in a good working condition. Because of this reason, the defendants alleged that the plaintiff is not entitled to refund the security amount of Rs.1,80,000/. It is further alleged by the defendants that they incurred expenses of Rs.30,000/ in repairing the suit property as substantial damage was caused to the same by the plaintiff.
13. However, defendants have placed no material on record to show that any damage whatsoever, was caused to the suit property by the plaintiff. There is also no material on record to show that any repair of the suit property was undertaken by the defendants or that any expenditure for the said purpose of repairing of the suit property was incurred by the defendants.
14. It is pertinent to mention here that despite multiple opportunities being granted, defendants failed to lead any DE. Consequently, the right of the defendants to lead DE stood closed.
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15. As such, there is no evidence at all, documentary or otherwise, to substantiate the allegations of the defendants that any damage to the suit property was caused by the plaintiff or that defendants incurred expenditure in repairing the alleged damage caused to the suit property.
16. Thus, the aforesaid allegations are unsubstantiated by any material on record and as such, court is unable to place any reliance upon the same. Thus, no ground is made out for adjustment of the security deposit made by the plaintiff towards maintenance of the suit property.
17. Issue accordingly stands decided against the defendants and in favour of the plaintiff.
Issue No.1 "Whether the plaintiff is entitled for recovery of Rs.1,80,000/ towards refundable security deposit in terms of lease deed dated 23.09.2004 alongwith the interest as prayed for? OPP"
18. Onus of proving this issue is upon plaintiff. In support of its case, PW1 proved Ex. PW1/1 which is the power of attorney issued in his favour. In support of its case, plaintiff has placed on record CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 11 of 20 documents which are Ex.PW1/2 to Ex.PW1/18. Perusal of lease agreement dated 17.09.2002 which is Ex.PW1/2 shows that an amount of Rs.1,05,000/ was deposited by the plaintiff with defendant no.1 as interest free refundable security deposit. Perusal of lease agreement dated 23.09.2004 which is Ex.PW1/4 shows that in addition to the aforesaid amount of Rs.1,05,000/, another amount of Rs.75,000/ was also deposited by the plaintiff with defendant no.1, which brings the total security deposit to Rs.1,80,000/. It is further shows that the said amount of Rs.1,80,000/ was to be refunded to the plaintiff by defendant no.1 at the time of expiry of lease period or at the time of earlier termination of the said deed.
19. The defendants, in parawise reply in their WS, do not deny that an amount of Rs.1,80,000/ was received by defendant no.1 from the plaintiff as interest free refundable security deposit, as mentioned in Clause 3 of Ex.PW1/4. Only defence raised by the defendants is that refund of the aforesaid amount of Rs.1,80,000/ was subject to Clause 17 of Ex.PW1/4 which required the plaintiff to hand over the possession of the suit property in a good working condition, which was not complied with. The defendants alleged that since the plaintiff failed to return the suit property in a good working condition, plaintiff is not entitled to refund of the aforesaid amount of Rs.1,80,000/.
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20. Considering that the defendants do not dispute that it had received from the plaintiff an amount of Rs.1,80,000/ as refundable interest free security deposit, it was incumbent upon the defendants to show that the plaintiff had caused damage to the suit property which disentitles the plaintiff to get the refund of the aforesaid security deposit. However, defendants have failed to lead any evidence, documentary or oral, to show that plaintiff had caused any damage the suit property or that the suit property was not returned in a good working condition. As such, the allegations raised by the defendants remains unsubstantiated and uncorroborated by any material on record.
21. Defendants, however, averred that vide their letter dated 04.10.2006, they had informed the plaintiff of the various damages caused to the suit property. The said letter has been filed on record by the plaintiff which is Ex.PW1/11. Perusal of Ex.PW1/11 shows that the defendant no.1 has mentioned in the same that the suit property was poorly maintained by the plaintiff. It has also listed out certain items as missing and certain other items as damaged, which were provided to the plaintiff with the suit property. The said letter, inter alia, mentions that gardening tools, curing pipe and telephone instruments were found to be missing from the suit property and an electric lawn mover was found to be nonfunctional. However, perusal of Annexure 'A' to CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 13 of 20 Ex.PW1/8 which is the hiring agreement dated 23.09.2004, shows that the aforesaid items were not included in the list which mentions the items provided by defendant no.2 to the plaintiff for purpose of usage in the suit property. As such, there is no material on record to reach the finding that the articles mentioned as missing or damaged in Ex.PW1/11 were provided to the plaintiff in the first place, much less that the said items were damaged/ lost by the plaintiff. Proceeding further, Ex.PW1/11 also mentions that certain AC plugs, AC stabilizers, keys etc. were found to be damaged. However, the same is unsubstantiated by any material on record. Ex.PW1/11 further mentions that certain lights and gazebo in the external area were not working/missing and that the fountain area was improperly maintained. However, perusal of Annexure 'A' to the maintenance agreement dated 01.10.2002/Ex.PW1/10 shows that the external area of the suit property was to be maintained by defendant no.3. Even otherwise, there is no material on record to substantiate any of the averments contained in Ex.PW1/11. As such, the letter which is Ex.PW1/11 relied upon by the defendants fail to advance their case in any way. Further, the letter Ex.PW1/11 was replied by the plaintiff vide his letter Ex.PW1/12, wherein he denied all the allegations of the Ex.PW1/11. As such, it is the word of the defendants against the words of the plaintiff. In order to establish its allegations that the suit property was indeed returned in a CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 14 of 20 bad condition, defendants were required to substantiate the same by placing material on record, which was not done.
22. The plaintiff, on the other hand has proved its reply to Ex.PW1/11 which is Ex.PW1/12 and its letter dated 31.01.2007 which is Ex.PW1/13, letter dated 02.11.2007 contained in page 02 of Ex.PW1/14 (colly), and letter dated 27.11.2007 contained in page 02 of Ex.PW1/15 (colly), which are the reminders sent by the plaintiff to the defendant no.1, seeking refund of the aforesaid amount of Rs.1,80,000/. Plaintiff also proved the legal notice sent to the defendants alongwith its postal receipts which are Ex.PW1/17 and Ex.PW1/18 respectively.
23. It is pertinent to mention here that all the averments in the plaint and documents filed in support of the same have gone unrebutted as the defendants chose not to lead any DE, despite opportunities being given.
24. In view of the above discussion and in view of the materials placed on record by the plaintiff and in view of no evidence being led by the defendants, the plaintiff is found entitled to refund of Rs.1,80,000/ from defendant no.1.
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25. Plaintiff has also claimed interest on the aforesaid amount of Rs.1,80,000/ at the rate of 24% p.a. from the date of handing over the possession of the suit property i.e. from 28.09.2006 till date of filing of the present suit. However, perusal of lease agreements contained in Ex.PW1/2 and Ex.PW1/4 show that they nowhere mention that interest at the aforesaid rate would be payable to the plaintiff in case of non refund of the security deposit. Also, the plaintiff has not brought any evidence to show that he is entitled to interest at the rate of 24% p.a. as claimed. Court is of the opinion that interest at the rate of 6% p.a. will meet the interest of justice. Plaintiff is therefore found entitled to recovery of Rs.1,80,000/ alongwith 6% p.a. interest on the said amount from 28.09.2006 till date of filing of the suit, from defendant no.1.
Issue stands decided accordingly.
Issue No.2 "Whether the plaintiff is entitled for interest of delayed refund of security deposit under the maintenance agreement dated 23.09.2004 and hire agreement dated 23.09.2004 alongwith pendente lite and future interest as prayed for? OPP"
26. Onus of proving this issue is upon the plaintiff. The case of the plaintiff is that it deposited an amount of Rs.60,000/ as security, as mentioned in Clause 3 of Hiring Agreement dated 17.09.2002 which is CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 16 of 20 Ex.PW1/7. Additionally, he paid another Rs.15,000/ as refundable security deposit which brought the total refundable security deposit to Rs.75,000/, as mentioned in Clause 3 of hiring agreement dated 23.09.2004 which is Ex.PW1/8.
27. Plaintiff further avers that he deposited an amount of Rs.30,000/ with defendant no.3 as interest free refundable security deposit, as mentioned in Clause 3 of maintenance agreement dated 01.10.2002 which is Ex.PW1/9. Additionally, he deposited another Rs.15,000/, which brought the total refundable security deposit to Rs.45,000/ as mentioned in Clause 3 of the maintenance agreement dated 23.09.2004 which is Ex.PW1/10. Plaintiff further avers that the aforesaid total amount of Rs.1,20,000/ (Rs.75,000/ + Rs.45,000/) was returned to him only on 27.11.2007 whereas vacant possession of the suit property was handed over on 26.09.2006 itself. Plaintiff has claimed interest on the aforesaid amount of Rs.1,20,000/ at the rate of 24% p.a. for the period from 26.09.2006 till 27.11.2007.
28. In support of its case, plaintiff summoned PW2, who deposed to the effect that plaintiff had paid Rs.75,000/ to defendant no.1 from the account of the plaintiff company on 05.10.2004. From perusal of Clause 3 of Ex.PW1/8 and Clause 3 of Ex.PW1/10, it is seen CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 17 of 20 that the amounts of Rs.75,000/ and Rs.45,000/ were to be deposited by the plaintiff as interest free refundable security deposit, which were to be refunded at the time of expiry of the term of the agreement or the earlier termination of the said agreement. Even otherwise, it is not disputed by the defendants that an amount of Rs.75,000/ and an amount of Rs.45,000/ were deposited by the plaintiff with defendant no. 2 and 3 respectively as refundable security deposits. It is further not disputed that the said amount of Rs.1,20,000/ was refunded to the plaintiff only on 27.11.2007.
29. Thus, what is established from the above discussion is that defendant no.2 had to refund an amount of Rs.75,000/ to the plaintiff on 26.09.2006 i.e. the date of handing over the vacant possession of the suit property by the plaintiff, but the same was refunded only on 27.11.2007. Further, defendant no.3 was also required to refund amount of Rs.45,000/ to the plaintiff on 26.09.2006, but the same was refunded only on 27.11.2007. Considering the admitted delay in refund of the said amounts, court reaches the finding that the plaintiff is entitled to interest on the aforesaid amount of Rs.75,000/ and Rs.45,000/ for the period from 26.09.2006 till date of its refund i.e. 27.11.2007. However, plaintiff has brought no material on record to show that it is entitled to interest on the aforesaid amounts at the rate of 24% p.a. CS. No.593217/16 Perfetti Van Melle India Pvt. Ltd. Vs. Suresh Kumar Bhayana 18 of 20 Further, Ex.PW1/8 and Ex.PW1/10 do not provide for interest at the rate of 24% p.a. on the security amount deposited, in case of delay in its refund. Court is of the opinion that interest at the rate of 6% p.a. would meet the interest of justice. Accordingly, plaintiff is held entitled to 6% p.a. interest on amount of Rs.75,000/ for the period from 26.09.2006 till 27.11.2007 to be recovered from the defendant no.2 and for interest at the rate of 6% p.a. on Rs.45,000/ for the period from 26.09.2006 till 27.11.2007, to be recovered from defendant no.3.
This issue stands decided accordingly.
Relief
30. Plaintiff has also claimed pendente lite and future interest at the rate of 10% p.a. on the recovery amount. Court is of the opinion that pendente lite and future interest at the rate of 6% p.a. will meet the interest of justice. Accordingly, plaintiff is held entitled to the following reliefs:
31. Plaintiff is held entitled to recovery of amount of Rs.1,80,000/ alongwith interest at the rate of 6% p.a. from the date of handing over vacant possession of the suit property i.e. from 26.09.2006 till date of its realization, from defendant no.1.
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32. Plaintiff is also held entitled to interest at the rate of 6% p.a. on amount of Rs.75,000/ for the period from 26.09.2006 till date of its realization, to be recovered from defendant no.2.
33. Plaintiff is further held entitled to recovery of interest at the rate of 6% p.a. on amount of Rs.45,000/ for the period from 26.09.2006 till date of its realization, to be recovered from defendant no.3.
34. Suit of the plaintiff accordingly stands partly decreed.
Plaintiff is also held entitled to the costs of suit. Decree sheet be prepared, on filing of deficient court fee, if any by the plaintiff.
35. File be consigned to record room after due compliance.
Digitally signed by DHANASHREE DHANASHREE Announced in the open court DEKA DEKA Date: 2018.06.06 on 06.06.2018. 16:56:04 -0400 (Dhanashree Deka) Civil Judge05, Central District Tis Hazari Courts,Delhi
This Judgment consists of 20 pages and all the pages are duly signed by me.
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