Delhi District Court
Ashok Kumar Nath vs M/S Surya Design Line Private Limited on 23 April, 2024
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-01, SOUTH ,
SAKET COURTS, DELHI
CS (Comm) No. : 289/2023
CNR No. DLST01-006692-2020
In the matter of :
Ashok Kumar Nath
S/o Late Sh. Ram Chander Nath
R/o 92-94, Sundar Nagar, New Delhi
................. Plaintiff
Versus
M/s Surya Design Line Private Limited
Having its office at :
4B, Palm Drive, West End
DLF Farms, Chattarpur
New Delhi - 110078
Also At :
N 39, Panchshila Park
New Delhi - 110017
................. Defendant
Date of Institution : 08.12.2020
Date of Arguments : 01.04.2024 & 20.04.2024
Date of Judgment : 23.04.2024
JUDGMENT
1. This is suit for recovery in sum of Rs. 20,67,617/- and Rs. 1,64,8000/-, mandatory and permanent injunction, filed by plaintiff against the defendant on the facts that plaintiff is the absolute and lawful owner of property bearing number 1 AQ, Sri Aurobindo Marg, Mehrauli, New Delhi (also Block B, 1A, Qutub Minar, Mehrauli, New Delhi). The property admeasures 3811 sq. meters and has built up portion of 1268 sq. meters. Defendant is CS (Comm) No. : 289/2023 1/32 a private limited company with Mr. Arjun Kapoor and Ms. Anjalee Kapoor as its Directors.
2. As stated, sometimes in July 2016, plaintiff was approached by defendant for leasing out the constructed area admeasuring 1600 sq. feet (approximately) of abovesaid property for a period of three years. Accordingly, lease deed dated 14.07.2016 was entered into between the parties with respect to tenanted premises for a period of three years starting from 25.05.2016 which was also duly registered as Registration no. 3958 in Book No. 1, Vol. no. 1.468 on page 91 to 105 on 14.07.2016. The said lease deed, as stated, was entered into by parties upon the defendant having satisfied itself with respect to the title, ownership, possession and status of the tenanted premises, upon carrying out inspection and due diligence. Defendant further satisfied itself with respect to the area of tenanted premises and adequacy of arrangement of electricity and water supply to the tenanted premises. In terms of Lease Deed, defendant was obligated to make timely payment of rent of Rs. 4,00,000/- per month, alongwith additional amount payable towards applicable taxes being Service Tax/Goods and Service Tax (GST), Swachh Bharat Cess and Krishi Kalyan Cess etc. , subject to payment of TDS.
3. Defendant was further liable to make payment of electricity charges and water charges as per the reading of the sub-meters in the tenanted premises under the Lease Deed. Defendant handed over 11 post dated cheques dated 25.08.2016 to 25.06.2017 for the tenancy months commencing from 25.08.2016. Similarly, for the tenancy months commencing from 25.07.2017 to 24.07.2018, post dated cheques dated 25.07.2017 to 25.06.2018 and for the tenancy months commencing from 25.07.2018 to 24.06.2019, posted dated cheques dated CS (Comm) No. : 289/2023 2/32 25.07.2018 to 24.06.2019 were handed over to plaintiff . Plaintiff was entitled to determine the Lease Deed by issuing 15 days notice to the defendant in the eventuality of defendant committing default in payment of rent for two months or more. It was further agreed that in case of failure on the part of defendant to vacate the tenanted premises in terms of termination notice, it shall be liable to pay damages at the rate of Rs. 50,000/- per day after expiry of period of 15 days from the date of service of termination notice.
4. Since the Lease Deed was for a long period of three years, plaintiff had discounted the rent and the same was subject to increase by 20% only after expiry of the term of three years. Security deposit amount of Rs. 24,00,000/- was also paid by defendant at the time of execution of lease deed. Possession of tenanted premises was handed over to the defendant and plaintiff permitted the defendant to renovate, equip and furnish the tenanted premises as per its requirements, at its own cost, during the first two months of lease i.e. from 25.05.2016 to 24.07.2016 being the Fit Out Period. Plaintiff exempted the payment of rent for the Fit Out Period, however, defendant was liable to pay for electricity and water charges during the Fit Out Period.
5. Defendant was liable to pay the amount of Rs. 3,60,000/- to the plaintiff being 90% of the rental amount payable by the defendant under the Lease Deed. Remaining 10% of the rent amounting to Rs. 40,000/- was to be deducted by the defendant as TDS and deposited forthwith with Income Tax Authority. Upon advent of GST regime, defendant was also liable to bear 18% of the rent amounting to Rs. 72,000/- towards GST and compensate the plaintiff in this regard so that the said amount could be deposited by the plaintiff with the government. Accordingly, plaintiff was to receive payment of Rs. 4,32,000/-
CS (Comm) No. : 289/2023 3/32from the defendant being 90% of the rent and applicable GST and amount of Rs. 40,000/- being remaining 10% of the rent was to be deposited by defendant with the Income Tax Authority.
6. As further stated, defendant continuously defaulted in making timely payment of rent and thereby committed material breach of lease deed. Defendant despite having deducted 10% of the rental amount from the money payable to the plaintiff, failed to deposit the TDS with the Income Tax Authority for the tenancy months w.e.f. 25.07.2016 to 25.03.2017, which was deposited by the defendant, only after issuance of notice dated 22.03.2017 by the plaintiff to the defendant. Cheques handed over by the defendant under the Lease Deed were dishonoured and after several requests and demands made by plaintiff, rent amount was deposited in part by the defendant.
7. In the meanwhile, plaintiff was directed by Hon'ble High Court of Delhi vide its order dated 31.10.2017, to deposit the entire rental income deposited by the defendant with the Registrar General of the High Court of Delhi w.e.f. 01.11.2017, which was specifically brought to the notice of defendant and it was requested to ensure timely payment of rent in future. However, defendant failed to act upon the request of plaintiff and rent for the tenancy month from 25.10.2017 to 24.11.2017 was deposited by the defendant on 15.12.2017 i.e. after an inordinate delay of 38 days, followed by delays in payment of subsequent months. Owing to the willful default committed by defendant in making timely payments of rent, plaintiff was constrained to terminate the lease deed vide its legal notice dated 17.07.2018 and called upon the defendant to vacate the tenanted premises within 15 days of receipt of said notice, which was duly served upon the defendant .Instead of issuing any reply to the legal notice dated 17.07.2018, defendant wrongfully and unilaterally CS (Comm) No. : 289/2023 4/32 deposited sum of Rs. 4,32,000/- into plaintiff's account on 24.07.2018.
8. Plaintiff immediately issued email dated 27.07.2018 and informed the defendant that the said unilateral payment made by it on 24.07.2018 was being held by the plaintiff towards damages payable on behalf of defendant for committing willful defaults in making timely payment of monthly rent under the lease deed. It was clarified to the defendant that the said payment made by it on 24.07.2018 does not amount to waiver of the termination notice dated 17.07.2018 and defendant was accordingly, called upon to take steps in compliance with the termination notice dated 17.07.2018. Thereafter letter dated 01.08.2018 was issued by defendant informing the plaintiff that it shall vacate the tenanted premises by 25.08.2018. Vide said letter, plaintiff was requested to consider remitting a compensation for the renovation undertaken by it at the tenanted premises. The said demand of defendant was misconceived as plaintiff had duly compensated the defendant against its investments by relaxing the monthly rent for two months during the Fit Out Period, which was duly communicated by plaintiff vide its letter dated 10.08.2018.
9. Defendants failed to vacate the tenanted premises on 24.08.2018 and even on 15.10.2018 as communicated by it vide its letters and continued to be in illegal occupation of the tenanted premises since 04.08.2018. Finally the premises was vacated on 24.10.2018 and the representative of defendant duly signed the receipts acknowledging removal of the sign boards of the defendant from the tenanted premises on 24.10.2018. Contrary to said position, defendant falsely alleged in its email dated 26.10.2018 that the tenanted premises was vacated by it on 15.10.2018, which was duly replied by the plaintiff. Defendant CS (Comm) No. : 289/2023 5/32 further failed to make payment towards the TDS amount till the date of vacation.
10. As further stated, on 21.12.2017, defendant had purchased jewelery from defendant, total costing Rs. 25 lacs and on 23.12.2017 had confirmed the said purchase as well as assured to make payment of Rs. 25 lacs in three equated monthly installments. Subsequently, emerald ring costing Rs. 9 lacs was returned by the defendant on 11.04.2018 and time was sought for payment of amount towards remaining jewellery articles, which payments were also not made by defendant despite repeated requests and reminders by the defendants. Thus, defendant, as stated, is liable to pay damages totaling to Rs. 41,00,000/- for the period commencing from 04.08.2018 till 24.10.2018, besides electricity charges of Rs. 87,617/-. Defendant, as stated, is further liable to pay amount of Rs. 6,80,000/- to the plaintiff which plaintiff was constrained to deposit with Income Tax Authority alongwith penal interest chargeable by the authority on failure of defendant to deposit the same. Plaintiff though holds the security deposit of Rs. 24 lacs but the same is liable to be adjusted against the amounts totalling to Rs. 48,67,617/- ( Rs. 41,87,617/- + 6,80,000/- ), due and payable by the defendant. Further the amount unilaterally deposited by defendant on 25.07.2018 and amount of Rs. 40,000/- deducted by the defendant towards TDS on 25.07.2018 is also liable to be adjusted against the said total due and payable amount by defendant. Hence, as stated, plaintiff is entitled to decree amounting to Rs. 20,67,617/- towards dues payable by the defendant, besides the decree in sum of Rs. 16,48,000/- towards the sale price of jewellery purchased by the defendant.
11. Initially the suit was filed by plaintiff before the court of Ld. Additional District Judge, South, wherein written statement CS (Comm) No. : 289/2023 6/32 was filed by defendant. However, it emerged on record that the suit was falling within the definition of Commercial Suit. Hence, vide order dated 25.07.2022 of Ld. Principal District and Sessions Judge (South), instant suit was transferred to the Commercial Jurisdiction. Thereafter amended plaint was filed by plaintiff alongwith application under Order 6 Rule 17 CPC, which was allowed vide order dated 25.04.2023 and amended plaint dated 26.05.2022 alongwith statement of truth, declaration u/o 11 Rule 1 (6) CPC and list of documents were taken on record. Defendant was granted four weeks time to file written statement to amended plaint, which was not filed on record by the defendant. Rather for want of appearance on behalf of defendant, it was proceeded ex-parte vide order dated 23.09.2023 and the matter was fixed for ex-parte PE. Thereafter an application under Order 9 Rule 7 CPC was moved on behalf of defendant seeking recall of order dated 23.09.2023, which was allowed. However, since amended written statement was neither filed within the time permitted vide order dated 25.04.2023 nor thereafter and even till 23.01.2024, the defence of defendant was struck off vide order dated 23.01.2024.
12. In written statement filed on behalf of defendant (though was not considered on record), it was stated by defendant that defendant is a company with Ms. Anjalee and Sh. Arjun Kapoor as its Directors/Promoters. Both Ms. Anjalee and Sh. Arjun Kapoor are fashion designers having established themselves as the front runners in ensuring the sanctity of age old tradition of making Indian traditional garments. It was stated that defendant was looking for a new location for his business, when defendant was introduced to the plaintiff who represented himself to be the sole owner-in possession of property Block B, 1A, Mehrauli, New Delhi .
CS (Comm) No. : 289/2023 7/3213. Plaintiff offered to let out part of this property to the defendant and as this area of property was a bare shell then and needed huge investment to make it operational, defendant was reluctant to take this place on record. Sensing this, plaintiff offered to give two months time as rent-free fit out period so that defendant could renovate the premises and it was also assured to the defendant that this premises shall be made available to the defendant for long lease, so that defendant will be able to recover its entire investment in the premises. Believing the version of plaintiff, defendant agreed to take the premises on lease. At the time of execution of lease deed, sum of Rs. 24,00,000/- was paid by the defendant to the plaintiff as refundable security deposit, which plaintiff is bound to refund to the defendant. After being inducted as tenant, defendant renovated the premises as defendant was to open a showroom for selling high quality and high end clothing and jewellery collection, for which defendant spent about Rs. 25 lacs. This decision to spend such a heavy amount on renovation that too of a tenanted premises was taken by the defendant trusting the assurances and representations of the plaintiff to be true and correct that the defendant shall be operating from this premises for next nine years at least and therefore the lease agreement was for initial period of three years with clause for renewal option every three years with 20% enhancement in the rent and lease was to be extended for a period of nine years so that defendant could continue to operate and build its business during these nine years period and enjoy the returns of its investment.
14. Defendant opened its high end fashion wear showroom from the premises and had installed an expensive and attractive signage board built at the cost of more than Rs. 1,00,000/- to be placed at the entrance of the tenanted premises as that would CS (Comm) No. : 289/2023 8/32 announce to the public at large, the opening of the showroom. However, within 2-3 months of operations, plaintiff started troubling the defendant and started creating hindrance in day to day working of the defendant. Plaintiff forced the defendant to remove the signage board installed at the entrance, which resulted in wastage of Rs. 1,00,000/- spent by the defendant on making and installation of the board as well as caused harm to the business of defendant resulting in loss of sales. Plaintiff also started coming to the tenanted premises and would stay there for no rhyme or reason. On many occasions, plaintiff would come to the tenanted premises and would entertain his guests as well, much to the shock and disbelief of the defendant.
15. As further stated, in an around January 2018, a portion of this premises got infected by termite, due to which the entire wooden flooring, few portions of false partitions and part of false ceiling had to be removed and reconstructed. As defendant was facing revenue losses, with great difficulty, around March 2018, defendant started the second phase of renovation to replace the termite affected flooring, partitions and ceiling, for which he had to spend another Rs. 10,11,000/- . Once the showroom got fully renovated, to the utter surprise and shock of defendant, plaintiff started troubling the defendant and posed hindrance in its day to day functioning even more. On more than 10-12 occasions, plaintiff went to the extent of shutting/locking the main door , thereby caused stoppage of clients/customers visiting the tenanted premises. On other occasions, plaintiff stopped the customers visiting the defendant just outside the showroom and told them not to visit the showroom as the defendant was allegedly not paying the rent.
16. Thereafter, plaintiff started misbehaving and harassing Mrs. Anjalee Kapoor, the director of defendant on daily basis and CS (Comm) No. : 289/2023 9/32 also started putting pressure and demanding the defendant to vacate the premises levelling absolutely false and frivolous allegations against the defendant and its directors. Defendant despite best efforts, could not convince or talk to the plaintiff to correct his ways and thus was left with no choice but to take decision to vacate the tenanted premises. Factum of purchase of any jewellery by defendant from plaintiff was denied. It was stated that defendant never authorized any of its Directors to purchase or accept any jewellery from plaintiff nor defendant ever received any jewellery as alleged.
17. As further stated, loss of revenue was caused to the defendant during the period 2013-2018, which is directly attributable to the acts and omissions of plaintiff as defendant could not conduct its business from the premises due to hindrances caused by the plaintiff. Further, as defendant had invested Rs. 35 lacs in renovation of the premises, this issue was discussed at length with plaintiff and plaintiff finally agreed and promised to pay lump sum amount of Rs. 10,00,000/- to the defendant on renovation of the premises within 4-6 weeks from the date of receiving back the possession. Accordingly, on 15.10.2018, defendant vacated the premises and handed back the possession of the premises to the plaintiff, which the plaintiff accepted without any objection, but thereafter did not return the security deposit of Rs. 24 lacs plus Rs. 10 lacs, as per the promise made by him. However, defendant got busy in managing its new showroom and soon had to face closure of its business owing to Covid-19 Pandemic.
18. Defendant had to face huge losses owing to corona pandemic and did not take any legal action for refund of security deposit and Rs. 10 lacs under the bonafide belief that plaintiff would surely make this payment. However, when defendant was CS (Comm) No. : 289/2023 10/32 served with the summons of the present suit, it was surprised and shocked to read the false and frivolous allegations made by the plaintiff and then decided not only to defend this case but also to take appropriate legal action against the plaintiff to recover the money due to defendant from the plaintiff as well as to seek damages owing to revenue loss on account of decrease in sale due to the acts and omissions at the hands of the plaintiff.
19. It was further stated that in suit bearing no. CS (OS) no. 663/2021 titled as " Krishna Nath Vs. Narendra Nath and Anr." pending before Hon'ble High Court of Delhi, vide orders dated 27.02.2013, 29.05.2015 and 24.08.2015, Hon'ble court had ordered that defendant in that suit i.e. the plaintiff herein, shall maintain status quo with regard to the title and possession of the tenanted premises but plaintiff herein deliberately concealed the factum of that case and orders of Hon'ble High Court from defendant and thus caused gross and contumatious disobedience of the orders passed by Hon'ble High Court by letting out the property to the defendant and thus creating third party interest in the property which was subject matter of CS (OS) no. 633/2011. It also came to the knowledge of defendant that plaintiffs in said CS no. 633/2011 had filed contempt petition against the plaintiff herein after which Hon'ble High Court had held the lease deed to be " invalid" and had directed the plaintiff to have the premises vacated and it was for this reason that plaintiff was pressurizing the defendant to vacate the premises and was raising false allegations against the defendant to save himself from contempt proceedings.
20. As further stated, had the abovesaid order of Hon'ble High Court been drawn to the notice of defendant or defendant been aware of the malafide intentions of plaintiff, it would have never signed the lease deed and/or paid the security deposit and/or CS (Comm) No. : 289/2023 11/32 renovated the premises at cost of Rs. 35 lacs. Since the acts/omissions of plaintiff have caused wrongful loss to the defendant and wrongful gain to the plaintiff, defendant is entitled to recover security deposit of Rs. 24 lacs plus Rs. 10 lacs towards part of money spent on renovating the premises which the plaintiff had promised to pay back, besides further amount of Rs. 10 lacs towards damages owing to loss of business as the defendant had to stop operations/business mid-way when the lease was subsisting for another period of seven years and these losses aggregated to Rs. 44,00,000/-, plus interest @ 9% w.e.f. November 2018 for which defendant was filing a counter claim alongwith the written statement to recover such amount from the plaintiff.
21. Following issues were framed vide order dated 23.01.2024:
(1) Whether the plaintiff is entitled for recovery of suit amount, as prayed for ? OPP (2) Relief.
22. Plaintiff Sh. Ashok Kumar Nath, in support of his case, examined himself as PW1. He filed his evidence by way of affidavit Ex. PW1/A and relied upon following documents:-
1. Registered Lease Deed dated 14.07.2016 as Ex. PW1/1 (OSR)
2. Letter dated 13.06.2018 issued by plaintiff to the defendant confirming receipt of post dated cheques for the period from 25.07.2018 to 25.04.2019 as Ex. PW1/2 (OSR)
3. Email dated 22.03.2017 sent by plaintiff to the defendant as Ex. PW1/3
4. Letter dated 06.06.2018 issued by plaintiff to defendant containing details of irregular rental payments as Ex. PW1/4 (OSR)
5. Office copy of letter dated 12.01.2018 as Ex. PW1/5 (OSR) CS (Comm) No. : 289/2023 12/32
6. Letter dated 18.01.2018 written by the defendant to plaintiff as Ex. PW1/6 (OSR)
7. Office copy of letter dated 05.03.2018 issued by plaintiff to defendant as Ex. PW1/7 (OSR)
8. Screenshot of WhatsApp conversation on 26.06.2018 between the defendant and plaintiff as Ex. PW1/18
9. The invoices raised by counsel towards prosecution of legal proceedings for the contemporaneous period as Ex. PW1/9 (OSR)
10. The email dated 21.07.2018 alongwith the legal notice dated 17.07.2018 terminating the Lease Deed as Ex. PW1/10 (colly.)
11. Email dated 27.07.2018 issued by counsel for plaintiff to defendant as Ex. PW1/11
12. The letter dated 01.08.2018 issued by defendant to plaintiff as Ex. PW1/12 (OSR).
13. The email dated 10.08.2018 sent to the defendant alongwith the letter dated 10.08.2018 as Ex. PW1/13 (colly.)
14. The letter dated 04.10.2018 issued by the defendant to plaintiff as Ex. PW1/14 (OSR)
15. Board Resolution dated 16.08.2018 of the defendant company authorizing him to make representations on behalf of the defendant as Ex. PW1/15 (OSR)
16. The email dated 17.10.2018 sent by plaintiff to the defendant alongwith letter dated 17.10.2018 as Ex. PW1/16 (colly.)
17. The receipt acknowledging the removal of sign boards by the defendant dated 24.10.2018 as Ex. PW1/17 (OSR)
18. The email dated 26.10.2018 issued by the defendant to plaintiff as Ex. PW1/18
19. The response email issued by plaintiff to the defendant on 26.10.2018 as Ex. PW1/19 CS (Comm) No. : 289/2023 13/32
20. The office copy of the letter dated 13.10.2018 issued to the defendant as Ex. PW1/20 (OSR)
21. The registered Lease Deed dated 06.01.2023 entered into between plaintiff and M/s. Jade Lifestyle Ltd. at the rental rate of Rs. 840 per sq. Feet per month as Ex. PW1/21 (OSR)
22. Calculation given in Appendix A as Ex. PW1/22
23. The letter dated 19.04.2018 issued by defendant under the signature of its director, Mr. Arjun Kapoor as Ex. PW1/23 (OSR)
24. The office copy of the complaint dated 07.06.2019 sent by plaintiff to Income Tax Officer as Ex. PW1/24
25. The notice issued by the Income Tax Officer to the defendant (through its director) on 17.06.2019 as Ex. PW1/25
26. Affidavit U/s 65-B of Indian Evidence Act, 1872 as Ex.
PW1/B
23. Defence Evidence was not led as defence of defendants had already been struck off.
Issue wise findings are as under :-
Issue no. 1 :-
24. Letting out of the demised premises in favour of defendant vide execution of lease deed dated 14.07.2016 Ex. PW1/1 is undisputed fact on record. Lease deed was executed for a period of three years starting from 25.05.2016 at rent of Rs. 4,00,000/- per month (excluding electricity and water charges), alongwith additional amount payable towards applicable taxes being Service Tax/Goods and Service Tax (GST), Swachh Bharat Cess and Krishi Kalyan Cess etc., subject to payment of TDS. Defendant had been making the payment of rent at Rs. 4,32,000/- per month to the plaintiff. It was brought on record that in CCP (O) 60/2016 in CS (OS) no. 663/2011, titled as Krishna Gupta vs. Sh. Narendra Nath and Anr., with regard to respondent no.2 who is plaintiff herein, it was noted by Hon'ble High Court :
CS (Comm) No. : 289/2023 14/32" 53 .....
Respondent no.2 had knowledge of the restrain order passed in the suit and he in willful disobedience of the said orders, having deliberately proceeded to lease out a portion thereof to the third party in terms of lease deed dated 14.07.2016. Accordingly, he is held guilty of contempt of court. Consequently, any document of transfer, temporary or permanent executed by him during the operation of the restrain orders, has to be declared as illegal. Having held so, it is imperative to direct restoration of status quo ante in respect of Qutub Minar Property, as existing on 24.08.2015. It is therefore declared that the lease deed dated 14.07.2016 executed by respondent no.2/contemnor in favour of M/s Surya Design Line Private Limited has no sanctity in the eyes of law and is invalid. Recognizing any such document executed in violation of court orders would tantamount to conferring legitimacy on the contumacious acts of respondent no.1 which is impermissible".
..............
"54. .......
It is felt that interest of justice would be adequately met if attachment orders are passed in respect of the leased out portion of Qutub Minar property.
55. As the lease deed dated 14.072016 executed by the respondent no.2/contemnor in respect of a part of the Qutub Minar property has been held to be in gross violation of the court's orders and the same has been declared as illegal and invalid, the leased out portion is hereby attached. The lessee M/s Surya Design Line Pvt. Ltd. is directed to vacate the portions of the Qutub Minar property under its occupation in terms of the lease deed and deposite the keys thereof in the Registry within one month from the date of service of the present orders on them. The lessee is permitted to retain the subject premises for a period of four weeks so as to make alternate arrangements in that duration on the condition that it shall file an affidavit within one week, undertaking inter alia not to part with possession or create any third party interest therein till the keys are deposited. Any further rent/occupation charges due or payable in respect of the leased premises shall be deposited by the lessee directly in the Registry.
Furthermore, this court is of the view that the respondent no.2/contemnor cannot be permitted to enjoy the fruits of an invalid and illegal lease deed and he must be made to feel the pinch by disgorging the profits earned by him as rent, @ 4.00 lacs per month w.e.f. July 2016 till the leased out portion is vacated. It is therefore directed that the respondent no.2/contemnor shall deposit the entire rent received by him in respect of the Qutub Minar property in the Registry within four weeks from the date of passing of this order. Immediately upon receipt of the aforesaid amount, the Registry shall place the same in a FDR, initially for a period of one year, to be renewed thereafter from time to time, till appropriate orders for disbursement are passed in the suit. Additionally, since the respondent no.2/contemnor has been earning interest w.e.f. July 2016 onwards, on the interest free security deposit of Rs. 24 lacs deposited by the lessee, he is directed to deposit the interest component which, having regard to the fact that he is a senior citizen, is calculated at a conservative rate of 7 % p.a. as is being paid by the Banks/Financial Institutions on FDRs. The aforesaid amount reckoned from July 2016, till the date the interest free security amount is refunded to the lessee, shall be deposited by respondent no.2/contemnor in the Registry within four weeks. The Registry shall place CS (Comm) No. : 289/2023 15/32 the said amount in a FDR, as directed above. While making compliances, a computation of the period for which the rent is being deposited and the interest earned on the security deposit at the rate mentioned above, shall be separately furnished by respondent no.2/contemnor on an affidavit within four weeks. Release of the aforesaid amounts are made subject to the final outcome of the pending suit."
25. Above noted order of Hon'ble High Court was with respect to the property in question. Vide order dated 15.03.2018 in Cont. App (C) 7/2017 and CM No. 39165/2017 titled as Ashok Nath Vs. Krishna Gupta & Anr. Order passed by Single Bench was modified by Division Bench of Hon'ble High Court of Delhi with following observation:
" On the basis of concession given by first respondent, subject to the appellant agreeing to following:
(i) Arrears of rent @ 50% and rent deposited by the appellant in the court in terms of the order dated 31.10.2017 would abide by further direction and order by the Ld. Single Judge in the civil suit
(ii) Appellant will continue to deposit future rent received from the tenant in the court as directed and in terms of order dated 31.10.2017. Deposits made would abide by directions and order of the Ld. Single Judge.
(iii) Any modification or amendment to the Lease Deed or its terms would require approval and permission of the Learned Single Judge.
(iv) Litigation expenses of Rs 30,000/- imposed may be made easy.
(v) Execution of the lease deed and retention of 50% rent, in terms of the order dated 31.10.2017 would not create or reflect as creating any right and interest in favour of the appellant. Learned Senior Counsel for appellant appreciates the statement and without prejudice accepts the conditions stated by the Learned Counsel for the first respondent . He states that the appellant may not want to renew the lease deed or enter into a fresh lease with a third person in case the tenant vacates the property".
26. Vide above noted order, plaintiff was directed to deposit the rent in future in court by way of cheque within 10 days of encashment of cheque given by the tenant and with intimation with regard to both receipt of the cheque as well as deposit in the court to be made by him to the counsel for the first respondent and the rent deposited was directed to be converted into FDR to earn interest.
CS (Comm) No. : 289/2023 16/3227. Pertaining to the dispute in the instant matter between the lessor and lessee i.e. the plaintiff and defendant, as brought on record, defendant had sometimes been irregular with regard to payment of rent. Vide intimation dated 12.01.2018 Ex. PW1/5, defendant was informed that the rental payment for the premises in question had been very irregular and the payment of rent amounting to Rs. 4,32,000/- with GST for the tenancy month 25.10.2017 to 24.11.2017 was received only on 15.12.2017, inspite of repeated verbal requests to make the payment in time. Defendant was also informed that the entire rental paid by him after deduction of applicable taxes was to be deposited in Delhi High Court. He was further informed that he had not paid rent for the tenancy month i.e. 25.11.2017 to 24.12.2017 and 25.12.2017 to 24.01.2018. Vide communication dated 18.01.2018 Ex. PW1/6, defendant apologized with regard to irregular payment and assured that the rent amount will be paid.
28. Abovenoted was followed by another communication dated 05.03.2018 Ex. PW1/7 . Defendant was again informed about the delayed payments and was told to make the timely payments towards rent in future. Vide communication dated 06.06.2018 Ex. PW1/4 defendant was sent list of post dated cheques received by plaintiff on 06.06.2017 and defendant was called upon to issue ten post dated cheques for the third year period from 25.07.2018 to 24.04.2019. The above communication seemingly was complied with, by defendant and confirmation was issued by plaintiff vide letter dated 13.06.2018 Ex. PW1/2. Defendant was informed about acceptance for the period from 25.07.2018 to 24.05.2019 against issuance of 10 post dated cheques. All other terms and conditions of lease dated 14.07.2016 remaining same.
CS (Comm) No. : 289/2023 17/3229. Vide legal notice dated 17.07.2018 Ex. PW1/10 (colly), tenancy of defendant was terminated. It was mentioned in the notice that the defendant had been continuously defaulting in making payments towards monthly rent and rent for two consecutive tenancy months from 25.11.2017 to 24.12.2017 and 25.12.2017 to 24.01.2018 remained in arrears as unpaid and pursuant to the demand notice, the payment of the said tenancy months were belatedly made on 23.01.2018 and 25.01.2018. Defendant was further informed that plaintiff had deposited cheque for the tenancy w.e.f. 25.06.2018 to 24.07.2018 which was dishonoured on 28.06.2018 due to insufficiency of funds, which payment had not been cleared despite intimation to defendant through telephone and even after issuance of email dated 30.06.2018. It was also mentioned that only after plaintiff conveyed his intention to legally proceed against him that the defendant deposited a cheque dated 11.07.2018 for Rs. 4,32,000/- inclusive of GST in the account of plaintiff without his permission. Thereby, tenancy of defendant was terminated and defendant was called upon to vacate the tenanted premises within 15 days of receipt of the notice, failing which he was told to be liable to pay liquidated damages at Rs. 50,000/- per day till the date of handing over of premises back to plaintiff.
30. Vide communication dated 01.08.2018, defendant did not wish to comment in any manner with regard to the notice dated 21.07.2018 and believing in relationship and peace submitted its willingness to vacate the premises by 25.08.2018. Plaintiff was also informed that since there was very short time left to vacate the show room and defendant did not have any alternative space, plaintiff was requested to consider compensation for huge investment made by defendant in the renovation of the show room. Above noted was followed by further exchange of CS (Comm) No. : 289/2023 18/32 communication between the parties and lastly as informed by defendant vide Ex. PW1/8, it vacated the premises on 15.10.2018, plaintiff though disputed the date of vacation by defendant and submitted that premises in question was vacated by defendant only on 24.10.2018. Again vide email dated 26.10.2018 Ex. PW1/19, defendant was informed that his representative had removed the outside signage board on 24.10.2018 and as such, the contention of defendant that he vacated the premises on 15.10.2018 was wrong.
31. In terms of uncontroverted testimony of PW1, Ex. PW1/7 is the acknowledgment issued by representative of the defendant with regard to removal of signages on 24.10.2018. Therefore, it is established on record that the defendant had vacated the suit premises only on 24.10.2018.
32. Plaintiff has made claims against the defendant which shall be dealt herein after. First claim of the plaintiff is with regard to damages payable by defendant. Plaintiff has claimed damages from defendant in terms of clause 16.2 of the lease deed aggregating to Rs. 41,00,000/- for the period commencing from 4.8.2018 till the date of vacation of the premises i.e. 24.10.2018, in pursuance to the termination notice dated 17.07.2018.
33. Ld. Counsel for plaintiff made following submissions:
(1) That, defendant was duly informed by plaintiff, in terms of lease deed dated 14.07.2016 Ex. PW1/1 that it would be liable to pay agreed liquidated damages of Rs. 50,000/- per day until it handed over the possession of demised premises.
Defendant was made aware that Rs. 50,000/- per day was a genuine pre-estimate of the liquidated damages and the same is evidenced from the reliance placed by defendant in its letter dated 04.10.2018 that payments as per the lease deed were outstanding.
CS (Comm) No. : 289/2023 19/32(2) That, defendant since illegally occupied the demised premises from 04.08.2018 to 24.10.2018, thus plaintiff admittedly suffered legal injury in form of losses for the said period. As the plaintiff could not earn any income during this period as the property was in illegal occupation of the defendant and was further exposed to further losses.
(3) That, in terms of settled legal proposition, as per section 74 of the Indian Contract Act, if the compensation named in the contract is genuine pre-estimate of loss which the parties knew when they made the contract, there is no requirement of plaintiff to prove such losses and it is not required to lead evidence to prove actual losses suffered by him. Reliance was placed upon Desh Raj Vs. Rohtash Singh (2023) 3 SCC 714, Pawan Hans Helicopter Vs. Maritime Energy Heli Air Services Pvt. Ltd. 2017 (164) DRJ 703 (DB), XL Energy Limited Vs. Mahanagar Telephone Nigam Limited 2018 SCC Online Del 9109 and Pure Pharma Ltd. Vs. Union of India 2008 (105) DRJ
794. (4) That, it had never been the case of defendant that the levy of Rs. 50,000/- per day is penal in nature. On the contrary, same was acknowledged to be genuine pre-estimate of the losses suffered by the plaintiff. Burden of proving that clause for liquidated damages which has been agreed between the parties in a contract, is penal in nature is on the party refuting the validity of the said clause. Failure to discharge such burden would treat any pre-estimated amount stipulated in the contract as a ' genuine pre-estimate'. Reliance was placed upon Desh Raj Vs. Rohtash Singh (supra).
(5) That, in the present matter, since defendant has neither challenged the levy of Rs. 50,000/- per day stipulated in clause XVI (2) and XVII of the Lease Deed as penal in nature at CS (Comm) No. : 289/2023 20/32 any point of time nor has proved that the same was penal in nature, therefore, he should be held liable to compensate the plaintiff for sum of Rs. 41,00,000/- towards losses as per the agreed rate of Rs. 50,000/- per day.
(6) That, though plaintiff was not obligated to prove any losses in view of the settled legal proposition, plaintiff by way of abundant precaution has proved his losses by bringing on record Ex PW1/A. (7) That, there has been progressive rise in the rental of demised premises as the location wherein the demised premises is located is highly sought after by restaurant, designer, showrooms, premium clothing and jewelery stores and the yearly increase in the property is reflected from the progression as detailed in Ex. PW1/22 and lease deed dated 06.01.2023.
(8) That, as per calculation on the basis of the rental of the demised premises in 2018 amounting to Rs. 418 per sq. ft., total rent of the premises amounted to Rs. 6,68,800/- per month and plaintiff would have been entitled to payment of Rs. 20,06,400/- from a new tenant.
(9) That, the induction of new tenant in the demised premises involves providing a tenant with a 'fit out period' of at least two to three months. In the lease deed between the parties dated 14.07.2016 'fit out period' was of two months and in 06.01.2023 in lease deed executed with M/s Jade Lifestyle Ltd. the 'fit out period' was three months . Thus, owing to the pre- mature termination of the lease deed, the loss of realizable rental for the 'fit out period' amounts to Rs. 13,37,600/-. Further to induct a new tenant, plaintiff would have to engage the services of a broker and as is common in commercial transactions such as the lease of a property like that of the demised premises, the brokerage charges payable towards the new lease is equivalent to CS (Comm) No. : 289/2023 21/32 rental of one month i.e. Rs. 6,68,800/-. Plaintiff also had spent amount of Rs. 6 lacs towards whitewash, repair of flooring, tiles, ceilings , furnishings, etc. to ensure that the demised premises are viable and lucrative to any potential tenant.
34. Plaintiff also calculated additional expenses incurred by plaintiff seeking condonation of delay in deposit of rent before Hon'ble High Court of Delhi amounting to Rs. 3,75,000/- which was exclusive of amount of Rs. 3,900/- towards miscellaneous expenses, Rs. 2,500/- towards amount debited for dishonor of cheques and amount of Rs. 22,000/- towards cost of legal notice. Net loss claimed by the plaintiff was explained in tabular format,as under:
S.No. Particulars Amount (Rs.)
1. Realizable rent for period of 20,06,400/-
04.08.2018 to 24.10.2018 as per
market rate
2. Loss of realizable rent for the fit 13,37,600/-
our period (2 months)
3. Brokerage charges 6,68,800/-
4. Expenses towards whitewash, 6,00,000/-
repair of flooring, tiles, ceilings,
furnishings etc.
5. Additional loss towards legal 4,11,900/-
expenses, interest to tax
authorities, bank charges for
dishonoured cheque, and cost of
legal notice
6. Total Losses 50,24,700/-
35. Without prejudice to the above contention of the plaintiff, it was submitted that even if this court comes to the unlikely conclusion that defendant has been able to discharge its onus of proving that the agreed rate of Rs. 50,000/- per day was penal in nature and that plaintiff has not been able to prove its losses, plaintiff shall still be entitled to 50% of the total amount claimed CS (Comm) No. : 289/2023 22/32 towards liquidated damages i.e. Rs. 20,50,000/- keeping in view that the plaintiff had suffered legal injury by the various breaches of the defendant. In pursuance to the above submission, following amount was claimed by plaintiff:
S.No. Particulars Amount (Rs.)
1. Damages payable by defendant in 41,00,000/-
terms of Clause XVI (ii) of the
Lease Deed for the period
commencing from 04.08.2018 till
24.10.2018
2. Electricity charges due and 87,617/-
payable by the defendant towards
usage in the tenanted premises
from 01.06.2018 to 25.10.2018
3. Amount liable to be paid for 6,80,000/-
failure to deposit TDS amount
with Income Tax Authority for the
period from 25.04.2017 to
24.08.2018
4. (Less) Security Deposit under (-) 24,00,000/-
Clause III of Lease Deed
5. (Less) Unilateral deposit of (-)4,00,000/-
defendant on 25.07.2018
alongwith the TDS deducted
6. Amount due and payable to the 20,67,617/-
plaintiff towards outstanding
payments due under the Lease
Deed
36. Extract of Clause 16(2) of Lease Deed Ex. PW1/1 is reproduced herein after:
" In the event the Lessee commits default in payment of rent for 2 (two) months or more, or otherwise willfully commits a breach of any of the terms and conditions herein contained, the Lessor shall be entitled to determine this lease by issuing 15 (fifteen) days notice to the lessee, irrespective of the terms of the lease and thereupon the lessor shall be entitled to re-enter the said premises and take voluntary and peaceful possession thereof without any hindrance, obstruction and prejudice from the lessee. Contemporaneously, the lessee shall also be liable to pay (w.e.f.
the day the default is two months and more) liquidated damages @ Rs. 50,000/- (Rs. Fifty Thousand only) per day after the expiry of the termination notice. The said liquidated damages have been mutually worked out and will not be objected by the lessee".
CS (Comm) No. : 289/2023 23/3237. It is correct that defendant vide Ex. PW1/14 dated 04.10.2018 acknowledged its liability to make certain payments, however with regard to damages of Rs. 50,000/- per day, he sought waiver. Vide legal notice dated 17.07.2018, Ex. PW1/10 (colly), defendant was informed about default in payment of rent for two consecutive months i.e. from 25.11.2017 to 24.12.2017 and 25.12.2017 to 24.01.2018. However, the said payment had already been cleared by the defendant. Basis for termination of the tenancy was dishonor of cheques for the tenancy month w.e.f. 25.06.2018 to 24.07.2018, though the said payment had also been cleared vide payment against cheque dated 11.07.2018. Nevertheless, the tenancy of defendant was terminated calling upon the defendant to pay liquidated damages of Rs. 50,000/- per day till the handing over of the possession of premises. It is apparent from the record that the previous defaults with regard to delayed payment for the tenancy months of 25.11.2017 to 24.12.2017 and 25.12.2017 to 24.01.2018 had been waived off by the plaintiff which cannot be basis for termination of the tenancy at a later date. Subsequent thereto, there was delay in payment of one month of rent. As already noted above, that payment had also been cleared by the defendant even prior to issuance of legal notice.
38. In terms of clause 16 of lease deed, lessee shall be liable to pay liquidated damages @ Rs. 50,000/- per day after the expiry of termination notice w.e.f. the date of default of two months and more. Apparently the default was not for two months and more. Rather it was the case of only delayed payment of one month. Since defendant did not wish to dispute the termination of the lease deed and agreed to vacate the demised premises, therefore, this court also does not dwell into the validity of termination of CS (Comm) No. : 289/2023 24/32 lease of defendant. Albeit the pre-requisite for claim of liquidated damages @ Rs.50,000/- per day w.e.f. the date of default of two months and more not being available, plaintiff cannot be said to be entitled to claim the said liquidated damages @ Rs. 50,000/- per day.
39. PW1 stated that during the period between 03.08.2018 and 24.10.2018 when the defendant was in illegal and unlawful occupation of the tenanted premises, he was unable to let out the said premises to any other tenant and he was continuously incurring losses towards the rental amount he would have realized during the period between 03.08.2018 and 24.10.2018 from the tenanted premises. It was also contended that plaintiff suffered losses because of untimely termination of tenancy and the payment against loss of realizable rent for fit out period for new tenant, whitewash, repair of flooring, tiles, ceilings, furnishings , brokerage charges and realizable rent for the intervening period. It was also stated that when defendant was in illegal and unlawful occupation of the tenanted premises, plaintiff was unable to let out the said premises to any other tenant and was continuously incurring losses towards the rental amount which he would have realized otherwise.
40. Lease period was for three years with further increase of 20% every three years, extendable upto 9 years. Had the lease period continued, the rent receivable to the plaintiff was the rent amount as agreed in terms of lease deed and not the figure as quoted against realizable rent for the period assessed at Rs. 6,68,800/- per month. To arrive at the said figure, plaintiff has relied upon lease deed dated 06.01.2023 Ex. PW1/21 pertaining to the demised premises which has been let out in favour of M/s Jade Lifestyle Ltd. The amount has been calculated comparing rate of Rs. 840 sq. ft. realized by plaintiff as per lease deed dated CS (Comm) No. : 289/2023 25/32 06.01.2023 and amount per sq. ft. which was being realized by the plaintiff for lease in question at Rs. 250/-. It was stated that there has been increase in rate of rent by Rs. 590 per sq. feet in last seven years, therefore, increase in value of rent per year is 84 per sq. feet. Plaintiff thereby claimed the difference in increase at Rs. 84/- per sq. feet every year and thereby claimed monthly rent @ Rs. 6,68,800/-
41. As noted in order dated 15.03.2018 of Hon'ble High Court of Delhi, counsel for appellant i.e. petitioner herein had also stated that the appellant/petitioner herein may not want to renew the lease deed or enter into a fresh lease with a third person in case the tenant vacates the property. Despite the said submission before Hon'ble High Court of Delhi when the plaintiff was not even willing to enter into any new lease or renewal of the lease deed, still has claimed losses for the said period for its inability to rent out the property to another tenant. Even in Ex. PW1/21, it is mentioned that " lessor informed lessee that as per the said orders dated 18.12.2019 read with 17.1.2022 he is permitted to lease out the said property to third party with certain directions including deposit of 25% of the realized lease rent with the Hon'ble High Court of Delhi". Abovesaid rather points out that there was no permission with the lessor to lease out the property further at least till 18.12.2019 r/w 17.01.2022 order, as quoted by plaintiff itself. Even then as already noted, loss for the intervening period has been claimed as well as for further fit out period, repair of flooring, tiles, brokerage charges etc. None of the above was responsibility of defendant and particularly when the plaintiff itself was not in position or permitted without orders of Hon'ble High Court to let out further. Conduct of plaintiff in seeking such exhorbitant and unwarranted claims is unmeritable.
CS (Comm) No. : 289/2023 26/3242. Defendant vide letter dated 01.08.2018 informed the plaintiff that it shall vacate the tenanted premises by 25.08.2018. Vide said letter, plaintiff was requested to consider remitting a compensation for the renovation undertaken by it at the tenanted premises. It was submitted by Ld. counsel for plaintiff that said demand of defendant was misconceived as plaintiff had duly compensated the defendant against its investments by relaxing the monthly rent for two months during the Fit Out Period, which was duly communicated by plaintiff vide its letter dated 10.08.2018.
43. Defendant also pleaded in written statement (which though is not considered on record as the defence of defendant had been struck off), that portion of the premises got infected by termite, due to which the entire wooden flooring, few portions of false partitions and part of false ceiling had to be removed and reconstructed. As defendant was facing revenue losses, with great difficulty, around March 2018, defendant started the second phase of renovation to replace the termite affected flooring, partitions and ceiling, for which he had to spend another Rs. 10,11,000/- . Once the showroom got fully renovated, to the utter surprise and shock of defendant, plaintiff started troubling the defendant and posed hindrance in its day to day functioning even more. On more than 10-12 occasions, plaintiff went to the extent of shutting/locking the main door , thereby caused stoppage of clients/customers visiting the tenanted premises. On other occasions, plaintiff stopped the customers visiting the defendant just outside the showroom and told them not to visit the showroom as the defendant was allegedly not paying the rent. Thereafter, plaintiff started misbehaving and harassing Mrs. Anjalee Kapoor, the director of defendant on daily basis and also started putting pressure and demanding the defendant to vacate CS (Comm) No. : 289/2023 27/32 the premises levelling absolutely false and frivolous allegations against the defendant and its directors. Defendant despite best efforts, could not convince or talk to the plaintiff to correct his ways and thus was left with no choice but to take decision to vacate the tenanted premises.
44. As submitted by defendant, loss of revenue was caused to the defendant during the period 2013-2018, which is directly attributable to the acts and omissions of plaintiff as defendant could not conduct its business from the premises due to hindrances caused by the plaintiff. Further, as defendant had invested Rs. 35 lacs in renovation of the premises, this issue was discussed at length with plaintiff and plaintiff finally agreed and promised to pay lump sum amount of Rs. 10,00,000/- to the defendant on renovation of the premises within 4-6 weeks from the date of receiving back the possession. Accordingly, on 15.10.2018, defendant vacated the premises and handed back the possession of the premises to the plaintiff, which the plaintiff accepted without any objection, but thereafter did not return the security deposit of Rs. 24 lacs plus Rs. 10 lacs, as per the promise made by him.
45. In terms of Clause 9 of lease deed, all the minor repairs were to be managed and handled by lessee at its own costs, but after the commencement of term of lease, all major and structural repairs were to be carried out by lessor at their cost provided that where such major repairs were required due to contributory negligence of the lessee, lessee was required to reimburse to the lessor such proportion of the cost incurred by lessor as the lessor may in their absolute discretion decide. Defendant had addressed the arguments himself and stated that plaintiff had agreed to adjust/return amount of Rs. 10 lacs against the renovation of termite infested areas. However, defendant failed to establish on CS (Comm) No. : 289/2023 28/32 record the quantum of repairs and the liability of the plaintiff to reimburse the same for want of leading its own evidence.
46. Additional loss towards legal expenses before Hon'ble High Court has also been claimed from the defendant where neither the defendant was party nor the same had been incurred by plaintiff due to any default on behalf of the defendant. This misconceived claim of plaintiff is also denied.
47. Further claim of plaintiff is pertaining to electricity charges and amount paid for failure of defendant to deposit TDS with Income Tax Authorities. Vide communication dated 04.10.2018 Ex. PW1/14 defendant acknowledged the outstanding amount of TDS @ 40,000/- per month from April 2017 to 31 st March 2018 and from 01.04.2018 to 15.10.2018. Electricity bill from 1 st June 2018 to 12th September 2018 amounting to Rs. 71,395/- as well as electricity dues w.e.f 13th September till date of vacation was also admitted. There is nothing on record that the said payment had been cleared by defendant.
48. Communication dated 07.06.2019 addressed to ITO Ex. PW1/24 is part of record intimating that the tenant had deducted the tax and had not deposited the same for the period 25.03.2017 to 24.03.2018 and 25.03.2018 to 24.08.2018., amounting to Rs. 4,80,000/- and Rs. 2,00,000/- respectively within the government treasury. Letter dated 17.06.2019 Ex. PW1/25 thereafter had been issued by Income Tax Officer to the defendant. Response of the said information sought by Income Tax Officer (TDS) is not part of record. Defendant itself has not proved on record with regard to deposit against TDS alongwith penalty, if any. Defence of defendant had already been struck off in the matter and PW1 was also not cross examined even to the limited extent permitted, thereby testimony of PW1 remained uncontroverted with regard CS (Comm) No. : 289/2023 29/32 to liability of defendant towards non deposit of TDS and Penalty thereupon computed at Rs. 6,80,000/-.
49. Despite acknowledgment of electricity charges due and payable by defendant for the usage till the date of vacation and the liability to clear TDS payment, there is nothing on record that the said payments have been cleared by defendant. Therefore, plaintiff is held entitled for claim against deposit of TDS amount of Rs. 6,80,000/- as well as electricity charges of Rs. 87,617/- and Rs. 2500/- towards amount debited for dishonour of cheque (as claimed).
50. Another claim of plaintiff was not pertaining to the lease deed but against the purchase of jewellery by the defendant in sum of Rs. 16,48,000/- . As submitted, defendant had purchased jewellery comprising of one diamond necklace set, one ruby bracelet and one emerald ring, amounting to Rs. 25 lacs on 21.12.2017. Defendant had undertaken to make the payment in three equated money installment on 23.12.2017. Plaintiff called upon the defendant to return the jewellery after three months. Defendant returned emerald ring and sought some more time for return of remaining articles of jewllery.
51. Vide handwritten acknowledgment dated 19.04.2018 Ex. PW11/23 defendant admitted about one Necklace PC Set and One Bracelet and assured to return the above articles by 26th April. It was also mentioned that he will be liable to pay penalty of Rs. 10,000/- per day in case of default. Thereafter, vide communication dated 04.10.2018, defendant had acknowledged jewellery bill for Rs. 16,48,000/- including GST as payable to the plaintiff .
52. Vide email dated 17.10.2018, plaintiff called upon defendant to make payment of Rs. 16,48,000/- towards jewellery amongst other payments, however no payment was made. In CS (Comm) No. : 289/2023 30/32 terms of uncontroverted testimony of PW1, neither jewellery articles have been returned nor the said purchase amount has been paid to the plaintiff against the jewellery articles. Plaintiff is accordingly held entitled for recovery of amount of Rs. 16,48,000/-, as claimed towards purchase of jewellery by the defendant.
53. Relief of permanent injunction and mandatory injunction was sought seeking restrain order against defendant that it has no right or interest in the tenanted premises and to remove all the reference of the tenanted premises from website of defendant. Defendant has already vacated the suit premises. As stated by PW1, pursuant to order dated 15.10.2020 and 18.02.2021, defendant complied with the directions of the court and took down the addresses of the tenanted premises from its website, twitter account and linkedin page. As submitted, prayer pertaining to permanent injunction and mandatory injunction stands satisfied.
54. Defendant had cleared the payment till 24.08.2018 and had undertaken to clear the further payment by 10th October 2018 vide communication dated 4.10.2018 Ex. PW1/14. Plaintiff had possession of post dated cheques issued by defendant upto 24.06.2019. It is not clear from record whether the cheques against rental for the months w.e.f 25.08.2018 to 24.10.2018 were deposited by plaintiff or not. Hence, plaintiff is held entitled for rental amount in sum of Rs. 4,32,000/- per month i.e. w.e.f. 25.08.2018 to 24.10.2018, if the cheques had not been deposited/cleared in favour of plaintiff for the said months. Security deposit of defendant was lying with the plaintiff in sum of Rs. 24 lacs which was refundable upon vacation of the suit premises as per the terms and conditions of the lease deed. After deduction of the refundable security deposit, entitlement of the CS (Comm) No. : 289/2023 31/32 plaintiff works out to Rs. 4,32,000/- + Rs. 4,32,000/- + 86,617/- + 6,80,000/- + 16,48,000/- + Rs. 2500/- = Rs. 32,81,117/- less (-) Rs. 24,00,000 = Rs. 8,81,117/- (Rs. Eight Lakh Eighty One Thousand One Hundred Seventeen Only).
55. Plaintiff has claimed interest @ 18% per annum. In terms of lease deed, interest @ 18% per annum was payable . Payment of Rs. 6,80,000/- is against the TDS liability and penalty, whereas Rs. 16,48,000/- is against the return of jewellery articles. Plaintiff himself has also earned interest on security amount till now, which was refundable to defendant at the time of vacation. All the claims granted in favour of plaintiff are not arising out of the lease agreement. Hence, this court is inclined to grant pendentilite and future interest @ 9% per annum till realization.
56. Relief: Instant suit is accordingly decreed with cost in favour of the plaintiff and against the defendant for an amount of Rs. 8,81,117/- (Rs. Eight Lakh Eighty One Thousand One Hundred Seventeen Only) alongwith pendentilite and future interest @ 9% per annum till realization.
57. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.
Announced in the open (SAVITA RAO)
court on this 23rd day DISTRICT JUDGE
of April 2024 (COMMERCIAL COURT)-01
SOUTH, SAKET COURTS, DELHI
CS (Comm) No. : 289/2023 32/32