Indian Kanoon - Search engine for Indian Law

Vikramajit Sen.J. Vikramajit Sen.J.

1. The claim in this suit under Order xxxvII of the Code of Civil Procedure, 1908 is for the recovery of arrears of rent at the rate of Rs. 4,50,000/- per month for the period from January 1, 1999 to August 16,1999. In paragraph 15 of the plaint it has been stated that the Plaintiff seeks to recover by way of the present suit a debt or liquidated demand in money payable by the Defendant on a written contract. It is not in dispute that a Lease Deed in respect of Flat No. 3-C and 3-G, Third floor, Hansalaya, New Delhi was entered into on 16th December, 1993 for a period of five year commencing from 17th August, 1993. It is also not in dispute that on the expire of this period, that is on 16th August, 1998, a fresh agreement of lease was executed between the parties. It is, however, seriously in contest whether this was for a period of four months or for a period of one year. The Defendant has contended that the Lease Deed was executed without its free consent. In August, 1998, that is prior to registration of second Lease Deed, the Defendant had addressed a letter to the Plaintiff enclosing a cheque for Rs. 10,76,129/- towards advance rent of the premises for the period 17th August, 1998 to 31st December, 1998. It is also not in dispute that for the period commencing 1st January 1999 to 16th August, 1999 the rent payable, as recorded in the Lease Deed, was Rs. 4,50,000/- per month.The receipt of a letter dated 16th December, 1998 from the Plaintiff to the Defendant is also admitted. In this letter the Plaintiff had called upon the Defendant to remit the advance for the period January1, 1999 to August 16,1999. This demand apparently was in conformity with the terms of the second registered Lease Deed, a copy of which was sent with this letter.This is followed by another letter dated 1st January, 1999 giving notice to the Defendant that if the advance rent is not paid within one week the lease would stand determined. By its letter dated 23rd January, 1999 the Defendant informed the Plaintiff that it intended to vacate the premises on or before 28th February, 1999. The rent for the month of January, 1999 had also been sent along with this letter. The Defendant's lawyer's letter dated 25th January, 1999 requested the Plaintiff not to obstruct in the removal of the Defendant's belongings from the premises. The present suit has been filed on 28th January,1999 under Order xxxvII of the Code of Civil Procedure, 1908. On 3rd March, 1999, I.A. 2101/99 was filed by the Defendant to direct the Plaintiff to take possession of the keys of the premises. This was carried out on 12th March, 1999. In the interregnumg, on 8th March,1999,the present application seeking leave to defend the suit under Order xxxvII Rule 3(5) was filed by the Defendant.