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U/s. 138 Negotiable Instrument Act leased. It is further stated by Ld. Counsel for the accused persons that during Fit-Out Period, the architect of the accused company inspected the land and made some observations in water seepages in the structure and conveyed the same to the company of the accused that whatever finishing being executed at the site will get spoiled. It is further stated by Ld. Counsel for the accused persons that during the Fit-Out Period, the accused company after the surveys performed by his architect and expert employees found certain problems in the building and made a list of works to be completed immediately and that list of work was intimated to the complainant via E-Mail, which is Ex. CW 1/D1. It is further stated by Ld. Counsel for the accused persons that the accused company also sent a letter dated 14.09.2011, which is Mark A to the complainant wherein it is pointed out that the accused no. 2 was concerned to see that lot of work needs to be done to start the operation of the property and the letter also indicated the list of work which was supposed to be rectified in the building by the complainant. It is further stated by Ld. Counsel for the accused persons that it was the implied condition on the complainant that whatever problem was there in the lease premises was supposed to be rectified by the complainant and then only, the accused company can start the operation in the company. It is further stated by Ld. Counsel for the accused persons that the complainant even admitted this fact in his cross-examination dated 19.10.2016 that "Fit-Out Period is meant for the beautification of the property by the person taking the same on rent/lease. No alteration was allowed to be carried out in the property. It is correct that if any structural defects or inherent defects were noticed in the premises leased out by us, ___________________________________________________________________________________________________ Ram Kumar Gupta Vs. TG Leisure Resorts Pvt. Ltd.

U/s. 138 Negotiable Instrument Act company and the letter also stated that the complainant was already intimated to not present the Cheque No. 705911 dated 07.05.2012 for Rs. 18,90,000/- and Cheque No. 696859 dated 10.05.2012 for Rs. 2,16,300/- which are Ex. CW 1/4 and Ex. CW 1/5 respectively in CC No. 3630/2016. It is further stated by Ld. Counsel for the accused persons that the accused company had made payment of rent as well as service tax afterwards from June, 2012 to November, 2012 on the promises of the complainant that they will rectify the problems. It is further stated by Ld. Counsel for the accused persons that the accused persons also intimated the complainant about the un-usability of the basement which was shown to the accused company as 3-4 banquet halls, which has also been admitted by the complainant during his cross-examination dated 19.10.2016. It is further stated by Ld. Counsel for the accused persons that the accused company further issued a letter dated 18.12.2012, which is Ex. CW 1/11 in CC No. 11829/2016 indicating the neglect on the part of the complainant to remove the structural defects pending since August, 2011 which has rendered more than 50 per cent of the lease premises un-useable since beginning and after the Fit-Out Period i.e. 01.09.2011. It is further stated by Ld. Counsel for the accused persons that the licenses applied by the accused company in the Health Department, Narela Zone, MCD Delhi, for the functioning of Motel/Banquets were rejected due to various defects in the lease property by the MCD Health Department on 31.12.2012 vide Ex. DW 1/B. It is further stated by Ld. Counsel for the accused persons that closure notice has been issued by the MCD Health Department, Narela Zone, Delhi, which is Ex. DW 1/A. It is further stated by Ld. Counsel for the accused persons that due to ___________________________________________________________________________________________________ Ram Kumar Gupta Vs. TG Leisure Resorts Pvt. Ltd.

U/s. 138 Negotiable Instrument Act notices of MCD and rejection of license, the accused company was unable to perform the business and if the accused company would have performed any work in the premises, it would have been treated illegal and accused could have been charged heavily by MCD. It is further stated by Ld. Counsel for the accused persons that accused persons further issued letter on 06.02.2013, which is Ex. CW 1/12 in CC No. 7213/2016 indicating the neglect on the part of the complainant to remove the structural defects pending since August, 2011. It is further stated by Ld. Counsel for the accused persons that it was also intimated to the complainant that as per Clause 18 of CW 1/3, it is clear that the obligation of the accused company is to maintain only for the breakage/damage to the building, walls, gates, structure, fittings, fixtures, plants, machineries, 2 DG Sets each 125 KV, etc . It is further stated by Ld. Counsel for the accused persons that it has been admitted by the complainant during his cross-examination dated 20.03.2019 that before handing over of the possession of the property by the accused company to the complainant, an understanding between the complainant and the M/s Chanson Hospitality Pvt. Ltd. regarding giving the premises in question on lease to M/s. Chanson Hospitality Pvt. Ltd. was reached between them. It is further stated by Ld. Counsel for the accused persons that the accused company used to approach the complainant on the daily basis and several meetings were also held at the lease property in question regarding the defects in the property as the complainant has its office on the leased property. It is further stated by Ld. Counsel for the accused persons that vide letter dated 21.08.2011, which is Ex. CW 1/D1, the accused company through its Director, accused no. 2 informed ___________________________________________________________________________________________________ Ram Kumar Gupta Vs. TG Leisure Resorts Pvt. Ltd.

___________________________________________________________________________________________________ Ram Kumar Gupta Vs. TG Leisure Resorts Pvt. Ltd.

U/s. 138 Negotiable Instrument Act

16) In present case, accused has admitted his signature and account number with respect to cheque in question. The main defence of the accused persons is that the property is not usable due to certain structural/inherent defects and therefore, they are not liable to pay the rent for the said period and several intimations and request has been made by the accused persons to the complainant from time to time to the complainant pertaining to that. After hearing the arguments of both the parties the main point of contention to be decide is whether the accused persons are liable to pay the lease/rent to the complainant for the leased property when they had not used the property due to several structural/inherent defects in the property but the accused persons are in possession of the property. In my view and on the basis of principles of natural justice, the technical legal term for a tenant's/lessee right to livable rental is "implied warranty of habitability". The terms come from the idea that the landlord/lessor promises tenant/lessee a livable place simply by offering the property for rent and this promise does not have to be written in a lease or otherwise formally agreed upon. The right of a tenant to force a landlord to maintain a livable rental is not waivable. For example, landlords cannot shrug off their habitability responsibilities in a "disclaimer" when the tenancy begins. Similarly, courts won't upload any agreements between landlords and tenants to waive the warranty. A landlord breaches the implied warranty of habitability when because of the landlord's inattention or negligence, a problem arises that would cause a reasonable tenant to be concerned for their health and safety. Minor or cosmetic damage that does not affect health and safety does not constitute a breach of the implied warranty of habitability. A minor repair can ___________________________________________________________________________________________________ Ram Kumar Gupta Vs. TG Leisure Resorts Pvt. Ltd.