Sh. Ashok Goyal vs ICICI Prudential Life Insurance Com. Ltd. and Others

Manmohan Singh, J.—By this order, I shall dispose of the application filed u/s 151 CPC filed by the defendant No. 1 praying therein to:

a] Allow the Defendant No. 1/Applicant to hand over possession and deposit the key of suit premises [Ground and Mezzanine Floor] of property bearing No. SF-29 A/1, Asaf Ali Road, New Delhi to this Hon''ble Court; and

b] Release a sum of Rs. 14.70 Lac paid by the Defendant No. 1 as interest free security deposit [which sum has been deposited by Defendant No. 2 in this Hon''ble Court] and release of Rs. 18.30 Lac deposited by the Defendant No. 1 with this Hon''ble Court; and

c] Modify the order dated 24.9.2007 to the extent it directs payment of Rs. 5.5 Lac per month for use and occupation of the premises as possession of the suit premises has been handed over to this Hon''ble Court

The brief facts of the matter are that the plaintiff has filed this suit against the defendant No. 1 and other defendants alleging that the plaintiff is the co-owner of the ground floor of the property No. 29/1, Asaf Ali Road, Darya Ganj, New Delhi, which property has been taken on lease by the defendant No. 1 from defendant No. 2.

The said property, according to defendant No. 1, has been taken on rent from M/s. Om Prakash & Sons through its Manager Shri Vinod Kumar Goyal, who represented to the defendant No. 1 that M/s.Om Prakash & Sons was the absolute owner of the ground and mezzanine floor of the property bearing No. SF-29 A/1, Asaf Ali Road, New Delhi.

The said property was taken on rent vide a lease deed dated 25.5.2006, which was entered into between M/s.Om Prakash & Sons and defendant No. 1 for a period of nine years commencing from 9.7.2006 and the monthly rental was fixed as Rs. 2,46,675/-.

The defendant No. 1 also deposited interest free refundable security amounting to Rs. 14,80,050/- in favour of M/s.Om Prakash & Sons.

It is stated by defendant No. 1 that it started work for improving the condition of the premises and spent approximately Rs. 60 Lac on the same and in the meanwhile, the plaintiff filed the present suit claiming himself to be the co-owner of the property and claimed reliefs as per the prayer clause of the suit.

The defendant No. 1 has submitted in the application that in view of the prevailing litigation in respect of the suit premises, he is constrained to vacate the same since the plaintiff and other defendants are claiming themselves to be the co-owners of the property and in order to avoid any complication, the defendant No. 1 is filing the present application for handing over the possession and depositing the key of the premises in this Court.

This application filed by the defendant No. 1 is strongly opposed by the plaintiff, inter alia, on various grounds that without seeking any modification or clarification of the order dated 24.9.2007 passed by this Court and in utter disregard to the said order, the defendant No. 1 apparently in collusion with defendant No. 2 started deducting TDS in the name of M/s.Om Prakash & Sons, an entity which is not entitled to receive the said amount being deposited in the court.

There is no such direction by this Court to deposit any amount after deducting TDS in the name of any entity. The plaintiff further argued that he apprehends that the whole amount of Rs. 18.30 lac deposited in the court, if released to the defendant No. 1 as prayed for in the application, it would be impossible for the plaintiff to recover the same if the suit is finally decreed in his favour and therefore, the present application is liable to be dismissed.

In order to decide the present application, the order dated 24.9.2007 has to be considered, which reads as under:

I have heard the counsel for the parties. As an interim arrangement, the defendant No. 1 shall deposit a sum of Rs. 5.5 lac each month for the use and occupation of the premises in question. This order shall operate w.e.f. today. Insofar as the period commencing on 25.5.2006 till date, the issue of whether the payment would be @5.5 lac per month, would be considered on the next date of hearing. In addition to this sum of Rs. 5.5 lac to be paid monthly ,the defendant No. 1 shall also deposit an amount of Rs. 18.30 lac. These payments and deposits shall be made in court till further orders. The defendants No. 2 shall also deposit the sum of Rs. 14.70 lac less amount of legitimate expenses towards brokerage and any house tax or electricity charges paid on production of receipts by the defendant No. 2. This amount shall also be deposited with the Registrar of this Court and await further orders with regard to the disbursement to the parties. It is made clear that these payments are made without the prejudice to the rights and contentions of the parties. The monthly deposits shall be made in advance by the 7th day of each month. The other deposits be made within two weeks. The defendant No. 1, on making the deposits, shall be permitted to use the premises. The amounts which would be deposited would be kept by the Registrar in fixed deposits so that the same earn interests. The initial period of the deposits shall be for a term of one year to be renewed from time to time, if necessary. Renotify on 18.02.2008.

Learned Counsel for the defendant No. 1 has made a specific statement that as far as payment of Rs. 5.5 lac per month as per order dated 24.9.2007 is concerned, the same has been regularly deposited by the defendant No. 1 except the TDS which was deducted and the certificate from time to time in this regard has been issued to M/s.Om Prakash & Sons.

He further states that by this application, defendant No. 1 intends to hand over the possession and deposit the key of the suit premises in this Court and there is no prayer in the application for deletion of its name from the array of parties. He further states that ultimately if the court finds that the TDS has been wrongly deducted, the said amount can be adjusted against the security deposits by the defendant No. 1 to the tune of Rs. 32 lac or more.

Learned Counsel further states that since there is litigation about the ownership of the suit property amongst the plaintiff and other defendants, therefore, in order to avoid any complication, the defendant No. 1 has decided to vacate the premises. He further states that admittedly Rs. 18.30 lac has already been deposited with the Registrar General of this Court as per the said order as well as defendant No. 1 has deposited a sum of Rs. 14.75 lac with the defendant No. 2, therefore, the dispute of TDS can easily be adjusted if the suit is ultimately decreed in favour of the plaintiff.

He also states that as per the lease deed dated 25.5.2006, the monthly rent was fixed at Rs. 2,46,675/- as observed in the order dated 24.9.2007. The question of payment, for the period commencing from 25.5.2006 till the date of the passing of the said order i.e. 24.09.2007 can be considered in due course and incase at the final stage, the Court comes to the conclusion that the defendant No. 1 was liable to pay Rs. 5.5 lac per month for the period from 25.5.2006, the defendant No. 1 undertakes to pay the said amount for the said period itself or the said amount can be adjusted as suit security amount already deposited.

Learned Counsel for the defendant No. 2, on the other hand, has taken me to the contents of the affidavit of Shri Vinod Kumar Goyal, defendant No. 2 herein, filed before this Court dated 23.10.2007 wherein it is categorically stated by him that on account of brokerage, house tax and electricity, a total expense to the tune of Rs. 14,93,854/- has been incurred by the defendant No. 1 and therefore, the amount of Rs. 14.70 lac has not been deposited by the defendant No. 1 in terms of the order dated 24.9.2007.

Learned Counsel for the defendant No. 2 states that it is mentioned in the order that the said amount was to be deposited by defendant No. 2 subject to adjustment of the amount of legitimate expenses towards brokerage and any other house tax and electricity charges paid on production of receipt by the defendant No. 2.

Learned Counsel for the defendant No. 2 has shown the attached receipts filed with the affidavit in support of his contention except the petty amount spent by him. The defendant No. 2 also states that he has received the electricity bill to the tune of Rs. 82,000/-, which is due from defendant No. 1 and which is yet to be paid. Learned Counsel for the defendant No. 1 states that the said amount can also be adjusted at the appropriate time if the said amount is payable by the defendant No. 1 but the defendant No. 2 has denied that the firm, M/s. Om Prakash & Sons, is not in existence as alleged by the plaintiff.

Learned Counsel for the plaintiff has vehemently opposed the prayers made by the defendant No. 1 by stating that order dated 24.9.2007 is very specific wherein the defendant No. 1 was asked to deposit Rs. 5.5 lac per month, which has not been deposited by the defendant No. 1 and therefore, the question of deducting any TDS in favour of M/s.Om Prakash & Sons does not arise and in fact defendant No. 1 is guilty of contempt of the orders passed by this Court.

It is further argued that defendant No. 1 has not complied with the orders passed by the court, therefore, the defendant No. 1 should not be allowed to hand over the possession and deposit the keys of the suit premises before this Court unless the order is fully complied with . It is further argued that the defendant No. 1 should be directed to deposit balance amount of the rent @ Rs. 5.5 lac from the period 25.5.2006 till the date of passing of the order dated 24.9.2007, only then the question of handing over the possession be considered by this Court.

Learned Counsel for the plaintiff has also pointed out that defendant No. 2 has not deposited Rs. 14.70 lac as directed by the court, rather, the affidavit has been filed giving details of expenses some of which are totally unreasonable and therefore, he be asked to comply with the order.

After considering the contentions of the respective parties and in view of the facts and circumstances at the present stage, this Court is of the view that defendant No. 1 be permitted to hand over the possession and deposit the keys of the suit premises (ground and mezzanine floor of property No. SF-29 A/1, Asaf Ali Road, New Delhi) before this Court within two weeks from today along with an undertaking that in case ultimately the court decides the matter in favour of the plaintiff pertaining to the disputed deduction of TDS, the defendant No. 1 shall pay the said amount to the plaintiff or shall adjust the sum against the security amount already deposited and recover the same in that case from M/s. Om Prakash & Sons.

The defendant No. 1 shall also incorporate the statement in the said undertaking that it will deposit the difference of rent for the period from 25th May, 2006 till 24th September, 2007 if the court ultimately decides that the payment of rent for this period ought to have been paid @ Rs. 5.5 lac per month or any other amount, which ultimately will be fixed by the court at the time of final disposal of the matter. In this regard, if any amount is due from defendant No. 1, the said amount can be adjusted against the security amount and if any amount is still due after adjustment, the same shall be paid as per direction of the Court. The question of rent for the period from 25.5.2006 to 24.9.2007 is kept open, which shall be determined after adducing of evidence and final disposal of the suit.

As regards the deposit of Rs. 14.70 lac by the defendant No. 2 as already mentioned above, the defendant No. 2 has filed an affidavit to the effect that he has also incurred a total expense of Rs. 14,93,854/- on many heads, the details of which are mentioned in paras 1 to 11 of the affidavit. However, the defendant No. 2 shall also file an affidavit within four weeks by way of an undertaking stating therein that in case ultimately it is found that the defendant No. 2 has incurred less expense than not which is mentioned in the affidavit, then the defendant No. 2 shall deposit the remaining amount as directed by the Court at the time of passing of the final order.

In view of the above discussion, relief (a) of the present application is disposed of. The reliefs (b) and (c) of the application are rejected at this stage.

This application stands disposed of accordingly.

C.S. [OS] No. 1711/2006

List the matter before Joint Registrar on 22nd September, 2009.