Document Fragment View

Matching Fragments

10. It is the specific case of the plaintiff that the lease which was entered on 02.04.2016 with defendant No.1 was for a period of 5 years which got lapsed by efflux of time by 01.05.2021. It is submitted that in the meanwhile defendant No.2 has been inducted into the schedule property and the lease hold rights have been assigned by defendant No.1 to defendant No.2 under a registered amended lease dated 05.04.2017 and the tenancy has been attorned in favour of defendant No.2. The plaintiff himself contends that by virtue of the amended lease deed it is the liability of the defendant No.2 to pay the required rents with respect to the schedule premises till vacations or till expiry of the lease period. In the course of evidence the plaintiff has produced certified copy of the registered lease deed dated 02.04.2016 which is with respect to lease entered into between plaintiff and defendant No.1. The lease was for a period of five years Com.OS.No.418/2024 commencing from 02.04.2016 and the rents are payable from May 2016. Subsequently there was an amendment to this lease by way of an amended lease deed dated 05.04.2017 to which the present plaintiff is also one of the signatory. Under the amended lease deed all the lease hold rights held by defendant No.1 with respect to schedule B property has been duly transferred by way of a registered amendment of lease and assigned in favour of defendant No.2. Further clause 4(ii)(e) of the registered lease deed came to be amended and upon assignment of the lease in favour of defendant No.2 there is attornement of tenancy to defendant No.2 and the defendant No.2 is held liable to pay all the rents, common area maintenance charges and all other statutory expenses to the plaintiff directly. Therefore with effect from 05.04.2017 there was no obligation created under the registered instrument for the defendant No.1 to pay any rent, maintenance charges and other expenses. By virtue of a registered instrument all the lease hold rights have been assigned in favour of defendant No.2. The tenancy is also attorned in favour of defendant No.2 and therefore by virtue of registered amended lease dated 05.04.2017 with effect from that date the tenancy of the defendant No.1 on the schedule B property also did not exist. Same has been the written Com.OS.No.418/2024 submissions of counsel for defendant no.1. When all the lease hold rights together with obligation to pay rent and other statutory charges being attorned and assigned in favour of defendant No.2 calling upon defendant No.1 to vacate and handover the schedule B premises and making defendant No.1 also liable to pay the arrears of rent, maintenance charges with GST and other expenses is not sustainable under law. In other words the defendant No.1 is neither required to vacate the premises as the tenancy has been assigned and attorned in favour of defendant No.2 and therefore no liability accrues upon defendant No.1 to either vacate the premises as he no longer remains in possession of the schedule B premises as a tenant under plaintiff and consequently no liability can be casted upon defendant No.1 to pay the arrears of rent and maintenance charges, damages as claimed in the suit.

11. Also the plaintiff except the self serving affidavit evidence of it authorized signatory has not placed on record any evidence to show that defendant No.1 continued to remain in possession of the tenanted premises even after assigning lease hold rights to defendant No.2 and attornment of tenancy to defendant No.2 Com.OS.No.418/2024

12. As evident from the registered amended lease deed dated 05.04.2017 and by virtue of attornment of the tenancy and assignment of the lease hold right the defendant No.2 becomes liable to quit, vacate and handover vacant possession and also pay the arrears of rent and maintenance charges. In the course of proceedings by virtue of the orders passed on I.A.No.10 the plaintiff has produced certified copy of the memorandum of settlement dated 25.03.2019. The said settlement has been produced in CC.No.2671/2018 which was a cheque bounce proceedings initiated by the present plaintiff against the present defendants in which proceedings with respect to dishonor of 4 cheques amounting to Rs.2,39,315/- each has been initiated and in the said memorandum of settlement it has been mentioned that the accused No.2 i.e. representative of the present defendant No.2 has paid the amounts in the said cheque. The settlement is with respect to the cheques which were issued subsequent to the attornement of tenancy. Therefore the amount of rents due under the cheques has been duly paid by defendant No.2. The terms of the memorandum of settlement also substantiates that it is the defendant No.2 who is currently in illegal occupation of the schedule B premises as the lease has Com.OS.No.418/2024 expired by afflux of time from May 2021 and therefore the defendant No.2 becomes liable to quit, vacate and handover vacant possession of the schedule premises and also pay the arrears of rent, maintenance charges, damages and other expenses. The plaintiff is also seeking for awarding a sum of Rs.10,00,000/- per month towards illegal occupation of the schedule B property from date of suit till handing over of possession. The claim of payment of compensation at Rs.10,00,000/- is without any basis and also no evidence is forthcoming on part of the plaintiff. It is a fact that defendant No.2 has remained in illegal occupation of the premises subsequent to expiry of lease by efflux of time. Therefore it would be just and proper to award compensation payable by defendant No.2 at the rate of last due rent as compensation. Accordingly for the aforesaid reasons I answer Point Nos.1 to 4 partly in the Affirmative.