Mrs. Veena Saluja and Another vs Tahiliani Design Pvt. Ltd.

Manmohan Singh, J.—By this order I shall dispose of two pending applications being IA No. 4483/2009 filed by the plaintiff under Order 39 Rule 10 CPC and IA No. 5191/2009 filed by the defendant under Order 7 Rule 11 CPC.

The brief facts of the matter are that M/s. Oriole Exports Pvt. Ltd. was the owner of property No. D-19, Defence Colony, New Delhi. Both the plaintiffs entered into an agreement to purchase the said property in 2004 and a registered sale deed was executed in favour of the plaintiffs vide sale deed dated 13.11.2004.

The premises, measuring 1359 sq.ft. out of a total area of 2146 sq.ft., were let out to the present defendant by M/s. Oriole Exports Pvt. Ltd. by way of an unregistered lease deed dated 20.10.2003 at a monthly rent of Rs. 76,000/- exclusive of electricity and water charges. It is not disputed by the defendant that it has not paid rent to the plaintiffs since August''2005 in spite of written demands by the plaintiffs.

The plaintiffs served a notice dated 14.11.2007 asking the defendant to make the payment of arrears of rent @ Rs. 76,000/- w.e.f. August''2005 and the tenancy of the defendant was also terminated with the month ending 19.10.2007. The defendant was asked to hand over the vacant peaceful possession of the premises to the plaintiffs on 19.10.2007. Since the defendant did not vacate the premises after the expiry of the said period, the plaintiffs claimed damages @ Rs. 200/- per sq. ft. in respect of the suit premises in occupation of the defendant from 20.10.2007 to 19.12.2007, which comes to Rs. 5,43,600/-.

The plaintiffs contended in the plaint that since the defendant was threatening to induct some other person in the property in question and to sublet, assign and otherwise part with the possession of the property in question, therefore, the present suit for possession, recovery and permanent injunction was filed.

An ex parte ad interim injunction was granted against the defendant on 25.02.2008 thereby directing the defendant and its officers, representatives, assignees etc. to maintain status quo with regard to the possession of the suit premises.

The defendant filed the written statement as well as counter-claims, inter alia, raising various defences in the written statement. The main defences are:

a] that the leased premises was unauthorisedly constructed and due to the said defect, the premises remained sealed from 03.08.2005 to 27.06.2006 and during that time the defendant along with other joint lessee suffered immense loss of business and, therefore, the plaintiffs are liable to pay the said amount;

b] that a sum of Rs. 7,20,000/- was kept in deposit as security with the earlier owner of the property, which amount has not been offered to be refunded before causing notice to the defendant under the provisions of Section 106 of the Transfer of Property Act;

c] that the lease deed was intended to continue for a period of 9 years w.e.f. 20.10.2003 and the plaintiffs, in fact, have made a pretext of non-payment of rent for eviction of the defendant from the property in question;

d] that the suit is not competent and is bad for non-joinder of necessary party particularly the first floor of the property No. D- 19, Defence Colony, New Delhi was jointly let out to the defendant along with M/s.Nirvaan Designs Pvt. Ltd., which has not been arrayed as defendant, which is a necessary party to the present suit; and

e] that the plaintiffs have not come to this Court with clean hands as the plaintiffs have suppressed the material facts regarding the sealing of the property from this Court at the time of filing of the suit.

In the replication filed by the plaintiffs to the written statement of the defendant, the plaintiffs have stated that there are two separate tenants in the first floor of the property in question i.e. the defendant and M/s. Nirvaan Designs Pvt. Ltd. As per the terms of the lease, the areas of the two separate tenants are separate and distinct. The allegation of unauthorised construction made by the defendant was also denied by the plaintiffs. However, it is not denied that the premises remained sealed from 03.08.2005 to 27.06.2006, but it is denied that the plaintiffs are liable to suffer monetary loss because of sealing of property on the basis of false defence raised by the defendant. It is stated that the premises were not sealed for any default of the plaintiffs and it was sealed on account of folly on account of the defendant.

As regards the allegation of the defendant that a sum of Rs. 7,20,000/- was kept in deposit as security and the said deposit of amount is not denied by the plaintiffs and the plaintiffs are agreeable to adjust the said amount in case the defendant is ready to comply the requirement of notice. It is submitted that since the defendant had not paid the rent to the plaintiffs since August, 2005, the defendant is liable to pay the rent amounting to Rs. 19 lacs and damages as claimed by the plaintiffs. It is further submitted that the defendant cannot continue enjoying the property in question without paying the rent thereof, as the defendant has violated the terms of the lease therefore, the defendant cannot continue to occupy the premises. It is further submitted that the notice has been rightly served on the defendant thereby terminating the tenancy of the defendant and the plaintiffs have lawfully filed the present suit.

It is also stated that on the one hand the defendant is alleging that the lease is an unregistered document and the defendant cannot be a tenant from month to month and on the other hand the defendant is referring to the said lease by alleging that the lease is for a period of 9 years.

During the course of the arguments, the plaintiffs have informed that another suit against the said M/s. Nirvaan Designs Pvt. Ltd. is also pending before this Court. In view of the aforesaid stated facts in the pleading, the plaintiffs have also filed two applications being IA No. 4482/2009 under Order XII Rule 6 CPC for passing a decree in favour of the plaintiffs and the present application under Order XXXIX Rule 10 CPC with the prayer that the defendant be directed to make the payment of arrears of rent/damages in respect of the premises in question.

During the course of the hearing, learned Counsel for the plaintiffs has suggested that incase the defendant agrees to pay the entire arrears of rent as prayed in the application, the plaintiffs are ready to give up the claim of damages @ Rs. 200/- per sq. ft. as mentioned in the application. The third application has been filed by the defendant under Order 7 Rule 11 CPC for rejection of the plaint as per the defences raised by the defendant.

The main contentions of the learned Counsel for the defendant is that the present suit has been filed by the plaintiffs only against one of the joint lessees i.e. defendant. As M/s. Nirvaan Designs Pvt. Ltd. has not been made a party to the suit, therefore, the suit filed by the plaintiffs is not maintainable.

The learned Counsel for the defendant has not denied the facts that the plaintiffs are the owners of the property and the execution of lease deed and admitted rate of rent of Rs. 76,000/- p.m. He has also not denied the fact that the rent has not been paid w.e.f. August''2005. Learned Counsel for the defendant has referred to the judgment in the case of Trilokchand Kapoorchand Vs. Basubai Vastimal Oswal and Others, in support of his contentions.

Learned Counsel for the plaintiffs submit that a sum of Rs. 7,20,000/- was kept deposited as security with the earlier owner of the property. He has admitted that the premises remained sealed for the period 3rd August, 2005 to 27th June, 2006.

Order XXXIX Rule 10 CPC contemplates deposit of money in the court on the condition that the subject matter of the suit is money or some other thing capable of delivery. The second condition is that the other party should admit that he holds such money or other thing as a trustee for another party. In other words, the said provision is attracted when the subject matter of the suit is money which by a party''s admission is held by it as a trustee for another party or belongs or is due to another party.

Let me examine the said conditions in the context of the present case. It is not in dispute that the defendant has not paid the admitted rent w.e.f. August, 2005. Although the defence raised by the defendant is that the said property was sealed for the period 3rd August, 2005 to 27th June, 2006, however, one fact is very clear that the defendant has not paid the admitted rent even after the property was de-sealed on June 27, 2006. The defendant had been apparently only making the excuse flimsy ground by not paying the admitted rent between the parties.

A bare reading of Order 39 Rule 10 CPC establishes that the facts in the present case are covered under the said provision of law and the defendant is liable to pay the rent at least from June 27, 2006, i.e. when the property was de-sealed. The conditions contemplated in the said provision of law are satisfied on account of the reason that the plaintiffs are the owners of the property, that the execution of the lease deed was not denied by the defendant and that there is an admitted rate of rent between the parties and the said amount claimed by the plaintiff is due.

Another submission made by learned Counsel for the defendant is that there is a common lease deed of the defendant and M/s. Nirvaan Designs Pvt. Ltd., therefore, the present suit itself is not maintainable. I find no force in the contentions of the learned Counsel on the reasons that there are two different entities i.e. two private limited companies. It is the admitted position that none of the Directors is common and both companies are carrying out their business in respect of separate portions of the property, it is also not denied by the defendant that it used to pay the rent separately by way of cheques to the plaintiffs. The only common thing between the two tenants i.e. defendant and M/s. Nirvaan Designs Pvt. Ltd. is the joint lease deed wherein both the lessees of different portions of the property were allowed to take the advantage of technical objection raised on that ground.

The judgment in the case of Trilokchand Kapoorchand v. Basubai Vastimal Oswal and Ors. [supra] cited by the learned Counsel for the defendant is not applicable to the facts of the present case. The said case pertains to the execution of decree and the court held that the decree is inexecutable and a nullity against one of the lessees and other joint lessee was not a party in the said suit, therefore, no decree could be passed and could not be enforced under the law.

In the present case, the situation is completely different. Firstly, a suit against the other lessee is pending and secondly, the situation in the present case is totally different as already mentioned above, therefore, the said judgment in Trilokchand Kapoorchand (supra) does not help the case of the defendant. In view of the above, I feel that the stand of the defendant does not inspire much confidence, at least at the present stage of the proceedings.

Learned Counsel for the plaintiffs has also cited the judgments reported as Purnima Dhawan and Anr. v. Agmoz Online Pvt. Ltd. 2003 VI Ad [DELHI] 367, Sh. Harish Ramchandani Vs. Mr. Manu Ramchandani and Ors, , Gursharan Kaur v. H B Singh 1999 III Ad [DELHI] 701 and Kiran Kapoor Vs. Ashok Kumar Sharma, .

Considering the matter in totality at this stage and as per law contemplated under the provisions of Order 39 Rule 10 CPC, I am of the prima facie view that the following orders are required to be passed by allowing the application of the plaintiffs under Order 39 Rule 10 CPC:

a] the defendant will pay to the plaintiffs directly the arrears of use and occupation charges @ Rs. 76,000/- p.m. w.e.f. 27.06.2006 within four weeks from today and thereupon the defendant shall keep on paying the admitted rent regularly as per the terms of the lease deed so arrived at between the parties. As regards the period between August''2005 and 27.06.2006, the dispute of payment of rent for the said period will be considered by the court at the final stage. Needless to say that all the amount paid pursuant to the orders of this Court shall be subject to final outcome of the present suit.

b] in the event of the defendant failing to comply with this order/direction, the defence of the defendant shall be liable to be struck off on that ground and further appropriate orders/directions will be passed against the defendant in the application filed by the plaintiffs under the provisions of Order 12 Rule 6 CPC, which is kept pending till the above directions issued by this Court are complied with.

c] as regards the defendant''s application filed under Order 7 Rule 11 CPC, I find no merit in the said application in view of the findings returned in the application filed by the plaintiff under the provisions of Order 39 Rules 10 CPC [IA No. 2470/2008]. The said application of the defendant is false and baseless and the same is dismissed with costs of Rs. 10,000/-. IA is disposed of.

IA No. 2470/2008 (U/o 39 R 1 & 2 CPC)

This application is adjourned to 24.09.2009 and the ex parte ad interim injunction order passed on February 25, 2008 shall continue in the meanwhile.

IA No. 4482/2009 (U/o 12 R 6 CPC) in C.S. (OS) No. 357/2008

List this application for direction on 24.09.2009.