Pradyuman Kumar Aggarwal & Ors vs Orchid Salon Services Pvt Ltd. & Anr

YOGESH KHANNA, J.

IA No. 9670/2018, 500/2018, 501/2018, 502/2018, 10906/2018

The IA No.9670/2018 is under Order XII Rule 6 and XIII A of CPC, IA No.501/2018 is under Order XXXIX Rule 10 read with Order XXXIX

Rule 1 and 2 to pass necessary orders and directions against defendant no. 1 and 2 to pay and deposit the arrears of rent and other dues; IA

No.10906/2018 is under Section 151 CPC for pass necessary directions in IA No.500/2018, 501/2018 and 502/2018.

The present suit is filed by the plaintiff for recovery of possession of suit property No. M-32, entire first floor having exclusive entrance from the

front side and common entrance from the rear side admeasuring 1950 sq ft area at M-Block Market, Greater Kailash-I, New Delhi 110048 along with

the relief of recovery of arrears of rent, damages, mesne profit, dues of service tax, GST, also towards maintenance charges of the lift and for

recovery of amount with respect to non-deposit of TDS.

It is alleged the defendants no.1 and 2 have filed their written statement, a bare perusal of which would reveal there is no defence and triable issue

raised and rather the claims of the plaintiffs are admitted and resultantly the plaintiffs are entitled to the decree in the suit on the basis of admissions

made by them.

The defendant no.1 in its written statement has admitted the relationship of landlord/tenant vide registered Lease Deed dated 30.06.2015, signed

and executed between the plaintiffs and defendant No.1.

The rental of 7.00 lacs per month is also admitted by the defendant no.1. Clause 2(v) of the lease deed dated 30.06.2015 specifically prohibits the

sub-letting of the suit property and it runs as under:

“2. v) The LESSEE shall have no right and/or authority under any circumstances to assign, sublet, underlet, mortgage, or grant license to use or

otherwise part with the possession of the demised premises or any part thereof. Change in constitution in the lessee company shall tantamount to sub-

letting for the purposes of this clause. It is clarified that the possession of the demised premises shall not be parted away to anybody by the lessee

under any circumstances.â€​ Â

Admittedly, the rent has not been paid since June 2017 though the learned counsel for the defendants says security deposit of 28.00 lying with the

plaintiff has been adjusted against the rent for four months i.e., till September 2017, which I feel could not have been adjusted at this stage and

defendant no.1 has no authority to do it. The security deposit is liable to be adjusted only once the dealing/relations of the parties are coming to an end

and the dues are finally settled. Hence admittedly the rent has not been paid by defendant no.1 to the plaintiff since June 2017. Admittedly the tenancy

of defendant no.1 is terminated with effect from 31.12.2017 by legal notices dated 16.05.2017 and 12.12.2017, duly served-but never replied. The

written statement of both the defendants do not make out anything except blaming each other.

The argument of the learned counsel for the defendant no.1 is though the rent deed was registered in the name of plaintiff and defendant no.1 but in

fact the oral understanding between the parties, for all intents and purposes, was the premises shall be occupied by defendant no.2 and she shall be

paying the rent and in fact have paid the pagadiamount of 2.5 lacs vide a cheque. It is submitted defendant no.1 has nothing to do with the premises

and only defendant no.2 is in the possession of the same.

Per Section 91 and 92 of the Indian Evidence Act, when there exist a written document the intention of the parties have to be culled out from such

written document viz. the registered lease deed dated 30.06.2015 and not from any alleged oral understanding. Thus considering the fact the lease of

defendant no.1 being terminated and even having expired by efflux of time and since the defendant no.2 has no right to be in the premises and even

otherwise, the defendant no.2 is in premises only through defendant no.1 despite the lease deed prohibits such sub-letting, hence the decree of

possession is hereby passed in favour of the plaintiff and against defendant no.1 as also against defendant no.2, since defendant no.2 is in possession

only through defendant No.1; in violation of clause 2(v) of the lease and thus both are directed to vacate the premises and hand over its vacant and

peaceful possession to the plaintiff within four weeks from today. This order is being passed under the provisions of Order XIII-A of the CPC read

with Order XII Rule 6 of CPC since the defendants have admitted the claim of the plaintiffs and have not been able to raise any triable issue/defence

in their written statement and no purpose shall be served by continuing the proceedings qua possession in the present suit.Â

The defendant no.1 is further directed to deposit with the Registrar General of this Court the arrears of rentals with effect from June 2017 till date

within four weeks and also every month till the possession is handed over as aforesaid. The amount so deposited shall be released to the plaintiff on its

furnishing an undertaking that such amount shall be redeposited in the Court within four weeks if so directed. The applications are disposed of in terms

of the above.

Qua the dues of the TDS, damages, mesne profits, service and maintenance charges of lift etc. the suit shall continue.

CS(COMM) 29/2018

List on 15.01.2019 for further directions. Â