Parsvnath Developers Limited vs Vikram Khosla

,,,

V. Kameswar Rao, J",,,

This is a suit filed by the plaintiff, Parsvnath Developers Ltd. which is a company incorporated under the provisions of the Companies Act, 1956,",,,

against the sole defendant, Vikram Khosla for recovery of monies and possession, with the following prayers:",,,

“(a) Pass a decree of directing the defendant, their agents, heirs, representatives and successors to vacate the suit premises i.e the",,,

portion of the Parsvnath Metro Mall, admeasuring approximately 10,200 Sq.ft Super Area (Covered area being 8,500 sq. ft. i.e. efficiency",,,

of approximately 83.3%) comprising of 10 (ten) Shops/Outlets and 3 (three) kiosks on the First Floor situated at Parsvnath Mall, Games",,,

Village Metro Station on Indraprastha- New Ashok Nagar Corridor, New Delhi, and to handover the vacant possession of the same to the",,,

Plaintiff;,,,

(b) Pass a Decree of Recovery in favour of the Plaintiff and against the Defendant, their agents, heirs, representatives and successors, for",,,

an amount of Rs. 2,42,47,498/- (Rupees Two Crores Forty Two Lakhs Forty Seven Thousand Four Hundred and Ninety Eight Only) along",,,

with interest @24% p.a. pendent-lite and future till realisation, payable by the Defendant to the Plaintiff in respect of outstanding dues",,,

towards the Sub License Fees, Electricity Charges, Service Tax, Mesne Profit and delay interest; and",,,

(c) Any other order(s) that this Hon'ble Court may deem fit and proper.â€​,,,

When this case came up for hearing for the first time on November 07, 2019 summons were issued to the defendant through all modes. On the",,,

second date of hearing, it was recorded that the service report was refused by one Pradeep, after which fresh summons were issued again. On the",,,

next date of hearing on March 02, 2020, the service report came back with the comments ‘refusal by wife of defendant’. Thereafter the matter",,,

was placed before Court by the learned Joint Registrar. This Court vide order dated March 13, 2020 proceeded ex-parte against the defendant, in",,,

view of deemed service. The question which arises is whether the plaintiff should be directed to lead ex-parte evidence. The Plaint having been,,,

verified and is also supported with affidavit / Statement of Truth on behalf of the plaintiff, and the defendant having been proceeded ex-parte no",,,

purpose would be served if the plaintiff was directed to lead ex-parte evidence. A Coordinate bench of this Court in the case of Satya Infrastructure,,,

Ltd. And Ors. v. Satya Infra and Estates Pvt. Ltd., 2013 (54) PTC 419 (Del), has held as under:",,,

“4. I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of,,,

affidavit by way of examination-in chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the",,,

amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any",,,

additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being,,,

put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs,,,

on merits qua the relief of injunction.â€​,,,

I have heard the counsel for the plaintiff in respect of the reliefs prayed. The case of the plaintiff in the plaint is the following:,,,

i. The plaintiff Co. entered into a Concession Agreement dated September 09, 2007 with the Delhi Metro Rail Corporation Limited (‘DMRC’",,,

for short) whereby DMRC gave to the plaintiff a specified area at Games Village Metro Station on Indraprastha â€" New Ashok Nagar Corridor,",,,

New Delhi on a licence basis for a period of 30 years expiring on September 19, 2037 (Concession period) for development into a shopping mall/",,,

complex by the name of ‘The Parsvnath Mall’, which the plaintiff was entitled to sub-license.",,,

ii. The defendant had approached the plaintiff for taking on the sub-licensed portion situated on the first floor at Parsvnath Mall, Games Village Metro",,,

Station on Indraprastha â€" New Ashok Nagar Corridor, New Delhi measuring 10,200 Sq. ft. Super Area (Covered area being 8,500 Sq. ft. being",,,

83.3% of super area), comprising of ten Shops/outlets and three kiosks (‘Suit premises’ for short) in order to run a food joint from there.",,,

iii. It is the case of plaintiff that, that the defendant had taken suit premises on sub-license from the plaintiff and had entered into a Sub Licence",,,

Agreement (‘SLA’ for short) and an Amenities Agreement both dated January 28, 2016 with the plaintiff, for the purpose of running a food",,,

joint there under the name and style of “Platters Food Courtâ€. Under the clause 4.1 of the SLA the defendant is liable to pay the sub-license fees,,,

of Rs. 5,00,000 per month to the plaintiff for the first three years of the term and further under clause 4.6 of the SLA the defendant is liable to pay",,,

service tax or any other levies directly attributable to the use of the suit premises, in addition to the sub-license fees under clause 10.1 of the SLA. The",,,

defendant is also to pay charges for consumption of electricity and water as per actuals. As per Clause 4.7 of the SLA the above payments on,,,

account of the sub-license fees and service tax and other levies is to be made before the seventh day of each calendar month in advance, failing",,,

which the defendant is required to pay interest calculated at 18% per annum for the period of delay.,,,

iv. As per clause 4.1 of the Amenities Agreement the defendant is liable to pay a sum of Rs. 4,00,000 per month to the plaintiff towards amenities",,,

fees. Further under clause 4.5 of the Amenities Agreement the defendant is also liable to pay the service tax as applicable on the amenities fee and,,,

under Clause 4.3 of the said agreement, the defendant is liable to pay the said amount of amenities fees and Service Tax to the plaintiff before seventh",,,

day of the calendar month in advance and in case there is a failure to make the said payments, an additional interest calculated at 18% p.a. for the",,,

delayed period on amenities fee is to be paid from the due date.,,,

v. Further, Clause 5.1 of the SLA, states that there would be a lock-in period of thirty-six months commencing from the Sub License Commencement",,,

date i.e., from January 28, 2016 and as per the plaintiff the period of lock-in was till January 27, 2019. As per the said clause, in case of termination of",,,

the sub-license or vacation of the suit premises by the defendant, or in case of default by the defendant in performing its obligations, leading the",,,

plaintiff to determine the sub-license during the lock-in period, the defendant shall be liable to pay the entire sub-license fee and amenities fees and",,,

other applicable charges for the unexpired portion of the Lock-in-period by way of adjustment of the amount lying with the plaintiff as security deposit,,,

and further by paying the balance.,,,

vi. It is the case of plaintiff that clause 7.1 of the SLA, the plaintiff is entitled to receive an amount of Rs. 60,00,000 as interest fee refundable security",,,

deposit (‘IFRSD’ hereinafter). Further under clause 7.3 of the SLA, it is agreed that the plaintiff carried out the work as described in the SLA",,,

before handing over the suit property to the defendant. It had been agreed between the parties, that in lieu of depositing the said IFRSD, the defendant",,,

would carry out the said work in the said premises, which was evaluated at Rs. 60 lacs. The plaintiff argued that the said amount of IFRSD would be",,,

adjusted upon the defendant providing detailed statement of accounts with supporting documents to the plaintiff of the works undertaken. It has been,,,

submitted that till date the defendant has not provided the details of expenses incurred towards the works that had been carried out in the said,,,

property.,,,

S. No.,Particulars,Period,Outstanding (INR)

1.,Sub Licence Fee,01.04.2017 to 31.08.2018,"61,65,000/-

2.,Service Tax/GST,01.10.2017 to 31.08.2018,"9,90,000/-

3.,"Delay interest @ 18% p.a, on Sub License

Fee and Service Tax",01.04.2017 to 31.08.2019,"19,99,682/-

4.,Electricity Charges,14.01.2016 to 31.03.2018,"20,88,761/-

5.,Mesne Profit towards illegal possession,01.09.2018 to 31.08.2019,"1,20,00,000/-

6.,"Interest @ 15,% P-a. On Mesne Profi

towards illegal possession",t01.09.2018 to 31.08.2019,"10,04,055/-

Total Claim of the Plaintiff,,,"2,42,47,498/-

TOTAL OUTSTANDING,,,

Head,Outstanding,Period Due,

Rent (rent + service tax / GST),"91,54,682",April 2017-August 2018,

Electricity,"20,88,761","January 14, 2016- March 01, 2018",

Mesne Profit,"1,30,04,055",September 2018- August 2019,

TOTAL OUTSTANDING,"2,42,47,497",,