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Delhi District Court

Neelam Bhaitiani vs Linky Dhingra on 18 May, 2024

IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
        COMMERCIAL COURT-01, SOUTH ,
            SAKET COURTS, DELHI


CS (Comm) No. : 101/2020
CNR No. DLST01-001642-2020

In the matter of :

Neelam Bhatiani
W/o Sh. Girish Kumar Bhatiani
R/o C-6, First Floor, Malviya Nagar
New Delhi - 110017

                                ................. Plaintiff

       Versus

Ms. Linky Dhingra
D/o Sh. Surender Kumar
C/o Shop no. 2, Ground Floor
In Property No. C-60
Malviya Nagar, New Delhi - 110017
                                ................. Defendant

Date of Institution        : 11.02.2020
Date of Arguments          : 30.04.2024 & 18.05.2024
Date of Judgment           : 18.05.2024

                           JUDGMENT

1. This is suit for Possession, Arrears of Rent, Mesne Profit/ Damages and Permanent and Mandatory injunction, filed by plaintiff against the defendant on the facts that plaintiff is owner/landlady of property bearing shop no.2 Ground Floor (Right Side Portion) measuring 570 sq. feet in property no. C-60, Malviya Nagar, New Delhi. Plaintiff was approached by defendant with an offer to take the said property on rent /lease for a period of five years. Accordingly, Lease Deed dated 22.03.2017 CS (Comm) No. : 101/2020 1/20 was executed between the parties which was duly registered before the Sub-Registrar, Hauz Khas, New Delhi. In terms of Lease Deed, defendant was liable to initially pay the rent @ Rs. 78,000/- per month which was required to be increased by 7% annually on the last paid rent.

2. After January 2019, defendant started making defaults in payment of rent of leased premises. She failed to make payment of rent for the months of September 2018, February 2019, September 2019, November 2019 and December 2019 and sum of Rs. 4,34,826/- became due and payable on account of arrears of rent till December 2019. Rent for months of January and February 2020 had also not been paid. Cheques issued by defendant towards discharge of her part liability were also dishonoured, against which complaint u/s 138 of N.I. Act was filed by the plaintiff. Defendant besides not making rental payment, also avoided to make payments for the amenities installed in the premises. She made unauthorized and illegal encroachment on the common passage and started putting the said portion into her exclusive lease, which were in violation of the terms and conditions of the lease. Notice dated 13.12.2019 was sent by plaintiff to defendant for curing the abovesaid defect and breach within period of 15 days, which though was replied vide reply dated 31.12.2019, however defendant failed to remediate the breach committed by her and did not pay even the admitted amount.

3. Finding no alternative, lease of defendant was terminated by plaintiff vide notice dated 03.01.2020. Defendant was called upon to vacate and hand over the vacant and peaceful possession of suit property to plaintiff as well as to clear the liability of rent CS (Comm) No. : 101/2020 2/20 and charges for the amenities. Defendant instead of complying with the termination notice, sent reply dated 30.01.2020 and declined to vacate, despite termination of lease. Possession of defendant in the suit property thereby became unauthorized after 31.01.2020. Hence, defendant, as stated, is liable to pay damages @ Rs. 1,50,000/- per month for the unauthorized use and occupation of the suit property from February 2020, besides the arrears of rent till January 2020 as well is also liable to remove the unauthorized encroachment and put the suit property to its original shape and condition.

4. Written statement was not filed by defendant within stipulated period. Therefore, the right of defendant to file written statement was closed vide order dated 25.01.2023.

5. Vide order dated 01.08.2023, application under order 12 Rule 6 CPC was allowed and decree for recovery of suit premises was passed. It was noted that plaintiff's suit regarding arrears of rent, damages, mesne profits etc. was yet to be decided for which trial needed to be conducted. Proceedings in the matter thereafter continued only pertaining to claim of plaintiff regarding arrears of rent, damages, mesne profits etc.

6. Following issues were framed vide order dated 19.03.2024 :

(1) Whether the plaintiff is entitled for recovery of arrears of rent and mesne profits, as claimed? OPP (2) Relief.

7. Evidence was not led by plaintiff on the submission that Lease Deed was an admitted document on record and no oral evidence was required pertaining to the rate and period of arrears of rent. Plaintiff restrained her claim to the amount of rent mentioned CS (Comm) No. : 101/2020 3/20 in the Lease Deed and submitted that plaintiff may be accorded the rent/damages as per the terms of Lease Deed.

Issue wise findings are as under :-

8. Issue no.1: Relationship of landlord and tenant between the parties by way of registered lease deed is admitted fact on record. Though the written statement had not been filed and the right of defendant to file written statement was closed. However, there was joint submission of the parties that the matter had been settled and MOU shall be prepared in that regard. Statement of defendant was recorded to this effect on 11.04.2023. Defendant stated that:

" I had taken the suit property on rent from the plaintiff vide registered lease deed dated 22.3.2017. I undertake to vacate the suit property by 01.06.2023 of which now I am an unauthorized occupant. I shall hand over the physical, vacant and peaceful possession of the suit property to the plaintiff on or before 01.06.2023. I further undertake to co-operate in getting the MOU prepared qua the pending dues after consulting with the plaintiff for a settlement amount suitable to both of us".

9. It may be noted that matter was initially filed before the court of Ld. ADJ-01, South District, wherein for the failure of defendant to appear before the court and to file written statement, she was proceeded ex-parte vide order dated 02.09.2021 and matter was listed for ex-parte plaintiff evidence.

10. On 11.03.2022, application under Order 9 Rule 7 CPC was filed on behalf of defendant, reply to which was also filed on behalf of plaintiff. On 12.04.2022, defendant admitted that she had not paid rent for the last several months/years. Defendant was also directed to make 'on account' payment to the plaintiff so that negotiations could be initiated and thereafter, on request of parties, matter was referred to Mediation Centre to explore the possibility of settlement, however, no settlement could be arrived at between the parties. Vide order dated 11.10.2022 of Ld. ADJ-

01, South District, application under Order 9 Rule 7 CPC was allowed subject to cost of Rs. 5,000/- with directions to defendant to file written statement within stipulated period of 30 days which, as noted, was to start from 11.10.2022 and also to file reply to all the pending applications of plaintiff. Copy of plaint was placed on record for defendant and defendant was directed to collect the same from court record. However, defendant neither bothered to take the copy from the court nor filed written statement. Therefore, right of defendant to file written statement was closed vide order dated 25.01.2023.

11. Vide order of even date, application under section 15A CPC filed by plaintiff for recovery of rent and future mesne profits, was also disposed off with directions to defendant to make 50% payment of arrears within one month till further orders as well as to start paying the rent of each and every month on stipulated day as per Lease Deed. Thereafter, matter, as reported, got settled between the parties and time was sought for bringing the MOU on record. As already noted, statement of defendant with regard to settlement was also recorded before the court. However, on the next date when counsel for plaintiff brought the MOU in court, defendant refused to sign the same and insisted for disposal of application moved under Order 7 Rule 11 CPC for rejection of the plaint. Ground raised for rejection of the plaint was that since the property was leased out for running a cafe, therefore, the same was covered under commercial use and suit should be tried by Commercial Court. Counsel for plaintiff submitted his 'No Objection' for transfer of the suit to the commercial jurisdiction. Vide order dated CS (Comm) No. : 101/2020 5/20 18.07.2023, matter was directed to be put up before Ld. Principal District & Sessions Judge, South for appropriate orders.

12. Suit was received by way of transfer before Commercial Jurisdiction on 19.07.2023, subsequent to which, application under Order 12 Rule 6 CPC was moved by plaintiff for judgment on admissions made by defendant. Application u/s 12 of Contempt of Courts Act was also filed on behalf of plaintiff. Whereas on behalf of defendant, application u/s 114 and Order 47 Rule 1 r/w section 151 CPC was filed for review of order dated 18.07.2023.

13. Application for review of order dated 18.07.2023 was filed by defendant on the premise that power of the court under order 7 Rule 11 CPC was for rejection of the plaint and not for transfer of the matter; that even the procedure for return of the plaint was not followed and the suit ought to have been tried from the beginning and the proceedings must commence de novo.

14. Vide order dated 01.08.2023 of Ld. Predecessor of this court, said application of defendant was dismissed. It was observed that vide order dated 25.01.2023, defendant was directed to make 50% of the payment of arrears within one month from 25.01.2023 and further to start paying the rent of each and every month on stipulated day as per the Lease Deed executed between the parties, however , as submitted by plaintiff, defendant had not complied with the said order dated 25.01.2023 regarding payment of 50% of the arrears as well as monthly rent till date and defendant was in arrears of rent for approximately Rs. 50 lacs, as on that date. Submission of counsel for plaintiff was recorded that defendant had not even complied with her own undertaking recorded on 11.04.2023 and had not vacated the CS (Comm) No. : 101/2020 6/20 property as per MOU/Settlement Deed. Said factum was admitted by defendant and her counsel who were also present in the court. Considering the submissions of parties as well as the conduct of defendant on record, vide order dated 01.08.2023, application filed by defendant for review of order dated 18.07.2023 was dismissed.

15. Vide same order, application under Order 12 Rule 6 CPC filed by plaintiff seeking Decree for Recovery of Possession of suit premises was allowed. Suit was partly decreed and matter was put up for proceedings regarding arrears of rent, damages, mesne profits etc. as well as for reply/arguments on application u/s 12 of Contempt of Courts Act moved by plaintiff.

16. Abovesaid order dated 01.08.2023 was challenged by defendant by filing RFA (Comm) no. 178/2023 before Hon'ble High Court of Delhi. Vide order dated 23.01.2024, RFA was disposed off with following observation:

" We are told that pursuant to order dated 22.08.2023 passed by the Coordinate Bench, the appellant has handed over the peaceful possession of the suit property. Thus, according to the counsel for respondent, the only issue which survives concerns the arrears of rent, use and occupation charges and arrears of water and electricity charges".

17. Appeal was accordingly closed with a caveat that all the contentions both on facts and in law were kept open to enable the appellant (defendant herein) to put forth the same before the trial court.

18. Accordingly, suit thereafter proceeded further only pertaining to the arrears of rent, damages and mesne profits. Considering the submission of Ld. Counsel for plaintiff made on 26.03.2024, matter was fixed for final arguments when application seeking review of order dated 26.03.2024 was filed by defendant , which was dismissed vide order dated 18.04.2024. Final arguments CS (Comm) No. : 101/2020 7/20 thereafter were addressed by counsel for plaintiff on the next date of hearing i.e. on 30.04.2024. Arguments were not addressed on behalf of defendant and accordingly the matter was fixed up for orders for 18.05.2024 with liberty to counsel for defendant to address arguments or to file written submissions within 10 days. Said liberty was not availed by counsel for defendant and rather on 16.05.2024, an application under order 7 Rule 11 CPC was moved on behalf of defendant. Following submissions were made by counsel for defendant with regard to application under Order 7 Rule 11 CPC:

(i) That present suit is liable to be rejected as the same is not maintainable in the present form before this court .

(ii) That, plaintiff has failed to fulfill the provisions contained in the Commercial Court Act 2015 and also the plaint is devoid of any cause of action.

(iii) That, the present suit is liable to be rejected/dismissed on the ground that the suit is not filed under the correct provisions;

format as prescribed under the Commercial Courts Act and therefore is not maintainable in the present form before this court as the plaintiff has not followed the prescribed rules under the provisions laid down in the Commercial Courts Act.

(iv) That, the dispute arose between the parties from Lease Agreement dated 22.03.2017 and as per the provision of section 2 (1) (c) (vii) of the Commercial Courts Act, the suit ought to have been filed as per the prescribed format but the plaintiff filed the present suit as regular possession suit and none of the ingredients of section 12A of Chapter III-A of the Act were fulfilled by the plaintiff, therefore, the same is not maintainable and liable to be rejected.

(v) That, even the transfer of suit was not done as per the provisions of the Commercial Courts Act.

(vi) That, in terms of section 15. Transfer of pending cases:-

(1) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996, relating to a commercial dispute of a specified value pending in a High Court where a Commercial Division has been constituted, shall be transferred to the Commercial Division.

(2) All suits and applications, including applications under the Arbitration and Conciliation Act 1996, relating to a commercial dispute of a specified value pending in any civil court in any district or area in respect of which a commercial court has been constituted, shall be transferred to such commercial court: Provided that no such or application where the final judgment has been reserved by the court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or sub-section (2).

(3) Where any suit or application, including an application under the Arbitration and Conciliation act. 1996, relating to a commercial dispute of a Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-section (1) or sub-section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer.

(4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit or application in accordance with order XV-A of the Code of Civil Procedure, 1908: provided that the proviso to sub-rule (1) of Rule 1 of Code of Civil Procedure, 1908, shall not apply to such transferred suit or application and the court may, in its direction, prescribe a new time period within which the written statement shall be filed.

(vii) That, admittedly plaintiff has filed the present matter before this court on the basis of Lease Agreement dated 22.03.2017 executed between the parties. Vide said Lease Agreement dated 22.03.2017, the plaintiff rented out shop bearing no. C-60, Malviya Nagar, New Delhi - 110017 to the defendant. As per the Lease Agreement dated 22.03.2017 the premises use was only for commercial purpose.

(viii) That, due to unreasonable conduct of the plaintiff in not providing water and forcing the defendant to be on mercy of CS (Comm) No. : 101/2020 9/20 another tenant for basic necessity as water, the defendant faced a lot of issue. Upon several complaints, it was the verbal understanding that the plaintiff will arrange this facility for the defendant, failing which, it would lead to holding the rent. Being a woman with no alternative option to shift, defendant always wanted to continue her commercials to run peacefully. Defendant was always ready to pay rent as soon as water issue was resolved. Shifting here and there would have affected her business which was otherwise very low due to Covid. However, without showing any willingness to resolve the issue, plaintiff filed the suit for non payment of rent for few months.

19. At the cost of repetition, it may be noted that the suit had earlier been filed before the court of regular civil jurisdiction wherein earlier defendant was proceeded ex-parte , application under Order 9 Rule 7 CPC moved on behalf of defendant was allowed subject to cost, even thereafter, for not filing of the written statement, right of defendant to file written statement was closed. Defendant after getting the matter settled and even after recording of her statement in the court, refused to sign the Memorandum of Understanding. Upon the application moved by defendant under Order 7 Rule 11 CPC before the court of Ld. ADJ suit was transferred to the commercial jurisdiction. Defendant thereafter moved the application under Order 47 Rule 1 CPC with submission that the plaint should have been rejected and the case should not have been transferred and further that the proceedings should have been conducted denovo.

20. Since the suit had been filed before the court of Regular Civil jurisdiction and not before commercial jurisdiction, therefore, the same was filed as per the prescribed format for the civil suits.

Nevertheless, in the application moved on behalf of defendant seeking review of the order dated 18.07.2023, the entire emphasis was that the plaint should have been rejected, the suit should not have been transferred and for defect in jurisdiction, suit should have been filed as fresh suit in new court with denovo trial. Ld. counsel for defendant himself referred to relevant extract with regard to transfer of pending cases whereby all such suits and applications relating to commercial dispute were required to be transferred to commercial court. Suit was accordingly transferred by court of Ld. ADJ.

21. Ld. Counsel for plaintiff submitted that plaint had neither been rejected nor returned under the provisions of Order 7 Rule 10 or Order 7 Rule 11 CPC but matter had been transferred in pursuance to the notification bearing no.

Judl.II/F.75/South/Saket/2020/3623-3639 dated 20.02.2020, thereby the cases related to commercial disputes instituted on or after 03.05.2018 were to be transferred to the court of District Judges (Commercial Courts). Ld. Counsel for defendant submitted that the order was passed by court of Ld. ADJ upon the application moved by defendant under Order 7 Rule 11 CPC, thereby either the plaint should have been rejected or returned but the matter could not have been transferred as the commercial courts were already functional and the circular pertaining to year 2020 was with reference to the cases filed prior to 2020.

22. It may be noted instant matter had been filed on 11.02.2020. Notification referred by Ld. Counsel for plaintiff is dated 20.02.2020. However, it seems that matter had not been transferred in pursuance of the said notification at the relevant point of time and proceeded further before the court of Ld. ADJ only. Defendant CS (Comm) No. : 101/2020 11/20 also participated in the proceedings and no objection was ever raised at any point of time for three years till the right of defendant to file written statement had been closed and defendant herself refused to sign MOU after agreeing to settle the matter and even after recording of her statement in the court. After the application had been moved under Order 7 Rule 11 CPC, upon no objection by counsel for plaintiff, suit was transferred to the commercial court. Apparently, the order for transfer of the suit was neither under Order 7 Rule 11 CPC nor under order 7 Rule 10 CPC but was in pursuance to the earlier notification with regard to transfer of all the cases to the commercial jurisdiction. Denovo trial, in these circumstances, was not warranted.

23. Ld. Counsel for defendant placed reliance upon Exl Careers and Another Vs. Frankfinn Aviation Services Private Limited, (2020) 12 Supreme Court Cases 667 wherein it was noted :

"15. Modern Construction, referred to the consistent position in law by reference to Ramdutt Ramkissen Dass Vs. E.D. Sasson & Co. , Amar Chand Inani Vs. Union of India, Hanamanthappa Vs. Chandrashekharappa, Harshad Chimanlal Modi and after also noticing Joginder Tuli, arrived at the conclusion as follows: (Modern Construction Case, SCC )

17. Thus, in view of the above, the law on the issue can be summarized to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present if before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de-novo even if it stood concluded before the court having no competence to try the same.

19. The language of Order 7 Rule 10-A is in marked contrast to the language of section 24 (2) and Section 25 (3) of the Code of Civil Procedure which reads as under:

24. General Power of Transfer and Withdrawal:

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.....

20. The statutory scheme now becomes clear. In cases dealing with transfer of proceedings from a court having jurisdiction to another court, discretion vested in court by sections 24 (2) and 25 (3) either to retry the proceedings or proceed from the point at which such proceedings was transferred or withdrawn , is in marked contrast to the scheme under Order 7 Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de-novo".

24. There cannot be any dispute with regard to proposition of law as laid down in authority (supra). Albeit, in the instant proceedings, as already noted, the order for transfer was not under Order 7 Rule 10 CPC nor plaint was rejected under Order 7 rule 11 CPC, but the order for transfer was in pursuance to the power for transfer of the suit to the commercial jurisdiction in which eventuality the transferee court either could retry or proceed from the point at which it was transferred. Transferee court decided to proceed from the point, at which it was transferred. The application moved by defendant under order 47 had been dismissed while noting the reference made by Ld. Counsel for plaintiff to order bearing no. Judl.II/F.75/South/Saket/2020/3623-3639 dated 20.02.2020 that the cases related to commercial disputes instituted on or after 03.05.2018 were to be transferred to the court of District Judges (Commercial Court) and Ld. Principal District & Sessions Judge had utilized power of transfer under CPC on 18.07.2023 for transferring the matter to this court. Right of the defendant to file the written statement had already been closed which seems to be CS (Comm) No. : 101/2020 13/20 the reason for defendant to kept on moving application one after another wanting de-novo trial which is not permissible in view of the discussion made herein above.

25. It was submitted by Ld. Counsel for defendant that in pursuance to the order dated 23.1.2024 of Hon'ble High Court, application under Order 7 Rule 11 CPC has been filed whereby the appeal was closed with a caveat that all the contentions both on facts and in law were kept open to enable the appellant (defendant herein) to put forth the same before the trial court. Similar liberty was also permitted to the respondent (plaintiff herein).

26. As already noted, after 23.1.2024, it was informed on record by counsel for defendant that RFA filed before Hon'ble High Court had been dismissed and defendant had vacated the suit premises. Suit thereafter proceeded further pertaining to the arrears of rent, damages and mesne profits. Issues were framed in presence of counsel for defendant. Matter was listed for recording of evidence of the parties. Subsequent thereto, counsel for plaintiff submitted that Lease Deed was an admitted document on record and no oral evidence was required pertaining to the rate and period of arrears of rent. Plaintiff restricted her claim to the amount of rent mentioned in the Lease Deed and did not claim any damages over and above the amount of rent and submitted that plaintiff may be accorded the rent/damages as per the terms of Lease Deed. Considering the said submission of Ld. Counsel for plaintiff, vide order dated 26.03.2024, matter was put up for final arguments for next date of hearing.

27. On next date of hearing, application seeking review of order dated 26.03.2024 was filed by defendant on the ground that they wanted to lead oral evidence. It was submitted by Ld. Counsel for CS (Comm) No. : 101/2020 14/20 defendant that though the contents of lease deed are not disputed but defendant was disputing the quantum of arrears of rent and damages. Per contra, it was pointed out by Ld. Counsel for plaintiff that right of defendant to file written statement had already been closed. Said application filed by defendant was dismissed vide order dated 18.04.2024 with following observations:

" Perusal of record reveals that defendant earlier had been proceeded ex-parte. Thereafter an application for setting aside ex-parte order had been moved and defendant was permitted to file written statement. However, written statement even thereafter was not filed, therefore, right to file written statement was closed vide order dated 25.01.2023. When the right of defendant to file written statement had already been closed, defendant cannot be permitted to lead evidence in the present matter. The application is devoid of merits and is dismissed".

28. Final arguments thereafter were addressed by counsel for plaintiff on the next date of hearing i.e. on 30.04.2024. Arguments were not addressed on behalf of defendant and accordingly the matter was fixed up for orders for 18.05.2024 with liberty to counsel for defendant to address arguments or to file written submissions within 10 days. Said liberty was not availed by counsel for defendant. However, on 16.05.2024, this application under order 7 Rule 11 CPC was moved on behalf of defendant re-agitating the same plea. The sequence of events as noted above, speaks volumes about the conduct of the defendant. Ld. predecessor of this court also in order dated 01.08.2023 had noted that the conduct of the defendant and the proceedings of the matter revealed that defendant had scant regards for her own undertaking as well as to the process of law.

29. Defendant despite her undertaking had not vacated the premises, was/is in arrears of rent. Only after RFA was preferred by defendant, she vacated the premises and still the defendant is harping on the technical aspects, having not cleared the arrears of CS (Comm) No. : 101/2020 15/20 rent. Apparently the intention of the defendant is only to delay the proceedings by abusing the process of the law. Application under Order 7 Rule 11 CPC stands dismissed with cost of Rs. 20,000/-. Half of the cost shall be deposited with Advocates Welfare Fund.

30. In terms of Lease Deed, defendant was liable to pay rent @ Rs. 78,000/- per month which was required to be increased by 7% annually on the last paid rent. In terms of case of plaintiff, defendant failed to make payments of rent for the months of September 2018, February 2019, September 2019, November 2019 and December 2019 onwards. Sum of Rs 4,34,826/- became due on account of arrears of rent till December 2019. Lease of defendant was terminated by plaintiff vide notice dated 03.01.2020 and thereafter till the date of filing of the suit, rent for the months of January 2020 and February 2020 was also not paid nor the rented premises was vacated. Suit property, as brought on record was, vacated by the defendant only in October 2023. Plaintiff thereby has claimed arrears of rent for the months of September 2018, February 2019, September 2019, November 2019, December 2019, January 2020 and February 2020, amounting to Rs. 5,24,128/- and damages @ Rs. 1,50,000/- per month for the unauthorized use and occupation of the suit property w.e.f. February 2020 till September 2023 alongwith interest @ 18% per annum. Plaintiff thereafter restricted her claim to the amount of rent mentioned in the Lease Deed and did not claim any damages over and above the amount of rent and submitted that plaintiff may be accorded the rent as per the terms of Lease Deed.

31. In the application under order 7 Rule 11 CPC, it was submitted that plaintiff was not providing water and was forcing CS (Comm) No. : 101/2020 16/20 defendant to be on mercy of other tenants for basic necessities of water. Upon several complaints, it was the verbal understanding that the plaintiff will arrange this facility for the defendant, failing which, it would lead to holding the rent. Being a woman with no alternative option to shift, defendant always wanted to continue her commercials to run peacefully. Defendant was always ready to pay rent as soon as water issue was resolved. Shifting here and there would have affected her business which was otherwise very low due to Covid. However, without showing any willingness to resolve the issue, plaintiff filed the suit for non payment of rent for few months.

32. There is nothing on record, substantiating the plea of defendant with regard to her entitlement to withhold the rent upon some alleged water issue or even the existence of the water issue. Defendant thereby admits non payment of rent. Even in reply to legal notice issued on behalf of defendant, it was admitted that some amount was not paid. Though it was mentioned that a water tank was to be installed in the premises which was conveyed to the plaintiff and plaintiff informed the defendant to get the same installed and the charges would be paid out of the monthly rent and plaintiff also agreed that after installation, remaining payment would be adjusted in the monthly rent". Nothing of the abovesaid is proved on record by defendant. Rather what is established on record is only the non payment of rent by defendant.

33. Plaintiff was directed to place on record the calculation sheet with regard to arrears of rent. Copy of the same was supplied to counsel for defendant . In terms of the calculations placed on record in handwritten note, sum of Rs. 50,91,390/- Rs.

Fifty Lacs Ninety One Thousand Three Hundred and Ninety Only) was outstanding/arrears of rent. Counsel for defendant conceded about the correctness of the calculations except for the rent payable for the months of September 2018, February 2019 and September and October 2019. It was stated by both the parties that all the payments had been made through cheque/banking transactions. With a view to grant the substantial justice, defendant was permitted opportunity to place on record bank statement reflecting the payments made for September 2018, February 2019, September and October 2019. Plaintiff was also permitted to bring on record her own bank statement. Plaintiff placed on record her bank statement, whereas it was submitted on behalf of defendant that her account had been closed, therefore, now defendant is not in position to place on record the bank statement. Plaintiff's bank statement corroborated the version with regard to non payment of rent/disputed amount for the months of September 2018, February 2019, September and October 2019. Hence, plaintiff is held entitled for recovery of amount of Rs. 50,91,390/- Rs. Fifty Lacs Ninety One Thousand Three Hundred and Ninety Only) towards arrears of rent.

34. With regard to interest amount claimed, Ld. Counsel for plaintiff referred to the clause in Lease Deed whereby in the event of failure on part of the Lessee to effect the remittance in time, the Lessee shall be liable to pay interest @ 18% per annum calculated on day to day basis. Considering the same, plaintiff is awarded interest @ 18% p.a. from the respective dates of rent being due/non payment till realization.

35. Plaintiff also sought mandatory injunction for issuance of directions to defendant to clear and pay the charges to the CS (Comm) No. : 101/2020 18/20 concerned authorities for the amenities provided and enjoyed in the suit premises. An application u/s 151 CPC had also been moved on behalf of plaintiff on 13.05.2021 for issuance of directions to pay the charges for the amenities to the concerned authorities. Copy of electricity bill with due date of 30.03.2021 and Water Bill with due date of 15.03.2021 were also placed on record. Electricity payment was due since December 2019 and the bill amount was Rs. 72,200/- . Water Bill was for the period w.e.f. 23.12.2020 to 25.2.2021 for Rs. 59593/- alongwith the arrears. Both the bills on record were pertaining to the period when defendant was in occupation of the premises. There is no order on the application. As appears from the record, after the application had been filed, parties entered into negotiations for settlement and thereafter proceedings continued as noted above. Separate issue was also not framed in this regard. Nevertheless, the defendant is liable to clear the payment for electricity and water charges for the period of her occupation of suit premises. Mandatory injunction is passed with directions to defendant to clear the electricity and water charges for the period of her occupation in the suit premises alongwith the late payment charges, if any, within one month. On failure of the defendant to clear the charges, plaintiff shall be entitled to receive the amount of bills including penalty, late payment charges etc. of electricity and water for the relevant period in occupation of defendant alongwith interest @ 18 % p.a. till realization.

36. Suit is accordingly decreed with cost in favour of the plaintiff and against the defendant for recovery of arrears of rent amounting to Rs. 50,91,390/- (Rs. Fifty Lacs Ninety One Thousand Three Hundred and Ninety Only) alongwith interest CS (Comm) No. : 101/2020 19/20 @ 18% p.a. from the respective dates of rent being due/non payment till realization.

37. Mandatory injunction is passed with directions to defendant to clear the electricity and water charges for the period of her occupation in the suit premises alongwith the late payment charges, if any, within one month. On failure of the defendant to clear the charges, plaintiff shall be entitled to receive the amount of bill including penalty, late payment charges etc. of electricity and water for the relevant period in occupation of defendant.

38. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.

Announced in the open              (SAVITA RAO)
court on this 18th Day         DISTRICT JUDGE
of May 2024                  (COMMERCIAL COURT)-01
                            SOUTH, SAKET COURTS, DELHI




CS (Comm) No. : 101/2020                                     20/20