Sneh Vaish and Others vs Mod Travels and Tours (P) Ltd.

V.S. Aggarwal, J.—Mrs. Senh Vaish, plaintiff has filed a civil suit for recovery of rent/manse profits. It had been alleged that the defendant company (M/s Mod Travels & Tours (P) Ltd.) had taken the premises in question on rent from plaintiffs 1 and 2 under an unregistered lease agreement. The monthly rent as per the area worked to Rs. 30,000/-. A memorandum of understanding was also signed hereunder lift charges and water charges were to be paid at the rate of Rs. 6000/- per month. Thus at the inception of the tenancy the total monthly rent was Rs. 36,000/- inclusive of charges towards maintenance and water supply. Though no fresh lease was executed registered the monthly rent was increased by 20% to Rs. 43,200 from 5.8.97. The defendant company is alleged to have confirmed vide its letter of 4.10.1994 that it would vacate the premises after the expiry of three years with one renewal. The defendant has paid rent at the rate of Rs. 42,000/- per month being thereby in arrears in the sum of Rs. 1200 * 29 months besides Rs. 24,000/- as lift charges. plaintiffs 1 and 2 had requested plaintiffs 3 and 4 to look into the matter of the defects of the lift. Defendants 3 and 4 arranged for replacement of the lift on behalf of defendants 1 and 2. It has been prayed that a decree for possession should be passed besides a decree for arrears of rent and after 4.12.99, the defendant as per the agreement should be called upon to pay Rs. 72,000/- per month for unauthorised occupation and to pay plaintiffs 3 and 4 a sum of Rs. 1,44,000/-. The suit as such is being contested.

During the pendency of the suit is 9827/2000 has been filed invoking Order 39 Rule 10 of the CPC contending that in order to avoid prolixity the contents of the plaint are being adopted and that defendant is liable to pay the damages for unauthorised occupation on basis of monthly rent and maintenance charges agreed between the parties from 4.12.1999 till determination of the actual mesne profits at the rate of Rs. 43200/- till 4.8.2000 and at Rs. 80,640/- thereafter per month. It was prayed that an order to that effect may be passed.

In the reply thereto the respondent has taken the plea that rent payable by the defendant is Rs. 36,000/- i.e. Rs. 18000/- to plaintiff no. 1 and Rs. 18,000/- to plaintiff no. 2 after deducting TDS, cheques for Rs. 15030 are liable to be sent in the name of plaintiff no. 1 and plaintiff no. 2 Defendant has regularly been sending the same. The cheques for the months of September/October 2000 at Rs. 15,030/- had been encased on 25.10.2000 by Mrs. Sneh Vaish and cheque of 16.1.2001 for Rs. 15,030 has been encased by Mrs. Sneh Vaish. It is denied that rent is payable at Rs. 43,200/- from 4.12.1999 till 4.8.2000 and Rs. 80,640/- per month thereafter. A dispute even has been raised with respect to the facility of the lift.

During the course of submissions learned counsel for the plaintiff strongly relied upon the letter of 4th October, 1994 purported to have been written on behalf of defendant addressed to plaintiff 1 and 2 confirming that after the expiry of the three years lease, in case the defendant does not vacate they would pay Rs. 72,000/- per month from 5.8.2000.

On 1st November, 2001 the key of the premises had been given to the local commissioner who was directed to make an inventory and hand over the key to the plaintiff''s counsel.

At this stage it is obvious that disputes have been raised as to what would be the admitted rent or at which rate the order should be passed directing defendant to deposit or pay the arrears. Once such a dispute has been arisen ti would be improper keeping in view the nature of the controversy as to if the lift facility was available and whether the defendant is liable to pay the rent/damages at the enhanced rate. It would be appropriate to direct the payment of the arrears at the admitted rate of Rs. 36,000/- per month subject to the final finding to be arrived at. Thais is for the reasons that it has been pointed that even after 4.8.200 plaintiff no. 1 had accepted the rent of her share at Rs. 15,030/- and encased the cheque.

Keeping in view of these factors at this stage it is directed that defendant from 4.12.1999 would pay the arrears at the rate of Rs. 36,000/- per month to plaintiffs 1 and 2 till the possession was handed over a noted above. If any such payment has already been made, defendant would take the adjustment of the same and pay the balance amount. Nothing said herein should be taken as an expression of opinion on the merits of the matter.