Mohan Murti Shandilya Vs. Pyare Lal Taheem and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1124745
CourtDelhi High Court
Decided OnFeb-07-2014
JudgePRADEEP NANDRAJOG
AppellantMohan Murti Shandilya
RespondentPyare Lal Taheem and anr.
Excerpt:
* in the high court of delhi at new delhi % date of decision: february 07, 2014 + rfa(os) 15/2014 mohan murti shandilya ..... appellant represented by: ms.ananya bhattacharya, advocate with mr.mohan shandliya, appellant in person versus pyare lal taheem & anr. ..... respondents represented by: mr.m.m.kalra, advocate with mr.kunal kalra, advocate coram: hon'ble mr. justice pradeep nandrajog hon'ble mr. justice jayant nath pradeep nandrajog, j.1. vide impugned decree dated july 30, 2013 noting that the defence of the appellant had been struck of, a decree in sum of `23,45,430/- has been passed in favour of the respondents and against the appellant with further direction that if decretal amount is not paid within eight weeks the same shall bear simple interest @12% per annum till date of payment.2. to understand the contention advanced by the appellant as also to understand the decree we need to note the relevant facts.3. pyare lal taheem and his wife indra rani taheem (the respondents) are owners of a 2½ storeyed building bearing municipal no.c-106, ndse part-ii, new delhi. vide registered lease-deed dated december 03, 2010, they let out to the appellant the ground and the first floor of their property for a period of three years commencing from december 01, 2010 at a monthly rent of `1,60,000/-. water and electricity charges had to be borne by the appellant as per actual consumption. clause no.1 of the lease-deed records that the payment schedule for the rent would be as under:- 4. sr. no.1. cheque no.date bank period amount 378002 26.11.2010 378003 378005 378007 378008 378009 378010 378011 378012 378013 378014 378015 378016 378017 378018 378019 378020 378021 378022 378023 26.11.2010 01.03.2011 01.04.2011 01.04.2011 01.05.2011 01.05.2011 01.06.2011 01.06.2011 01.07.2011 01.07.2011 01.08.2011 01.08.2011 01.09.2011 01.09.2011 01.10.2011 01.10.2011 01.11.2011 01.11.2011 01.12.2011 21. 378024 01.12.2011 -do- 22. 378025 01.12.2012 -do- 23. 378026 01.12.2012 -do- 3 months advance rent & 3 months security. 01.03.2011 01.03.2011 01.04.2011 01.04.2011 01.05.2011 01.05.2011 01.06.2011 01.06.2011 01.07.2011 01.07.2011 01.08.2011 01.08.2011 01.09.2011 01.09.2011 01.10.2011 01.10.2011 01.11.2011 01.11.2011 01.12.2011 to 30.11.2012 01.12.2011 to 30.11.2012 01.12.2012 to 30.11.2013 01.12.2012 to 30.11.2013 9,60,000/- 2.3. 4.5. 6.7. 8.9. 10.11. 12.13. 14.15. 16.17. 18.19. 20. uco bank, patiala house, new delhi -do-do-do-do-do-do-do-do-do-do-do-do-do-do-do-do-do-do-do- 80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/9,60,000/9,60,000/9,60,000/9,60,000/- as per clause 14 of the lease-deed, the respondents received from the appellant refundable security deposit in sum of `4,80,000/-. clause 10 of the lease-deed reads as under:“that in case lessee desires to terminate the lease agreement, for any reason, whatsoever, earlier than the initial period of three years, the lessee shall give two months notice in writing, in advance, of his intention to terminate the lease agreement. however, the lessee shall not terminate the lease agreement in the first two years and six months of the lease agreement. i the even the lessee terminates the present agreement before the completion of the first two years and six months, the lessee shall be liable to pay the lease rent for the balance of the months remaining. the same shall apply to the lessors also.” 5. a perusal of clause 10 makes it apparent that the lease could be determined by the lessee by giving two months’ notice in writing but subject to the limitation that the lease would not be terminable in the first two years and six months of the commencement of the lease. in the event the lessee terminated the lease before completion of two years and six months, for the balance period the remaining lease rent had to be paid. the same was to apply to the lessors as well.6. in other words as per clause 10 in case appellant determined the lease prior to two years and six months he had to pay the rent for the unexpired portion of the period in question and vice versa.7. cs(os)no.1348/2012 was filed by the respondents seeking ejectment, arrears of rent and mesne profits alleging that the cheques no.378023 and 378024, listed at sl.no.20 and 21 of the schedule as per clause 1 of the lease-deed were returned by the banker of the appellant due to insufficiency of funds. pleading that a right accrued to them to determine the lease on account of non-payment of rent they were entitled to recovery possession, arrears of rent and mesne profits till possession was regained.8. on july 25, 2012, an order was passed in the suit requiring appellant to pay arrears of rent which were admitted to be due within eight weeks. the appellant filed a written statement along with a counter claim in sum of `38,40,000/- alleging that the respondents having terminated the lease prior to two years and six months period expiring and thus the appellant would be entitled to the rent for the unexpired period, as per clause 10 of the agreement.9. as proceedings lingered on in the suit the appellant vacated the ground floor on april 30, 2013 but continued to occupy the first floor which he vacated on may 27, 2013.10. since rent of the ground and the first floor as per the lease agreement was `1,60,000/- per month, the respondents sought half agreed rent i.e. `80,000/- per month from may 2013 onwards on account of appellant retaining the ground floor of the property which admittedly was handed over on may 27, 2013.11. the impugned order and decree dated july 30, 2013 notes violation of the interim order requiring appellant to pay the agreed rent and as a result striking of the defence of the appellant. the learned single judge has thereafter proceeded to pass a decree with respect to the unpaid rent for the two floor till april 30, 2013 and `80,000/- for the month of may, 2013 pertaining to the ground floor, possession whereof was handed over on may 27, 2013. the decretal sum of `23,45,430/- has been arrived at as under:1.2. lease rent from 01.12.2011 to 30.11.2012 `1,60,000/- per month x 12 lease rent from 01.12.2012 to 01.04.2013 `1,60,000/- per month x 5 rfa (os) no.15/2014 3.5. lease rent for the month of may 2013 `80,000/(first floor of the suit property was handed over to the plaintiffs. see order dated 01.05.2013. the ground floor of the suit property was handed over to the plaintiffs on 27.05.2013) `80,000/electricity and water charges paid by the plaintiffs for the period the suit property was in occupation of the defendant `45,430/total (1+2+3+4) `28,45,430/- 6. less security deposit held by the plaintiff 7. total amount to be paid by the defendant to the plaintiffs `23,45,430/- 4.12. `4,80,000/- the contention of the appellant is that he had replaced the cheques which were dishonoured by two cheques of even amount i.e. `4,80,000/each which the respondents deliberately did not encash. according to the appellant if the cheques had been encashed the respondents would not be entitled to determine the lease within two years and six months of commencing of the lease and default would attract clause 10 of the leasedeed, requiring the respondents to pay the lease sum to the appellant for the balance of the two years and six months period because clause 10 of the lease agreement cuts ice both ways. if the lessee determined the lease before two years and six months expired, the lessee was to pay to the lessor rent for the remainder period. if the lessor determined the lease, likewise the lessee had to be recompensed.13. now, the conceded position is that the respondents received payment under the lease agreement only till the month of november 2011 i.e. the cheques at sl.no.1 to 19 of clause 1 of the lease agreement were encashed. the two cheques at sl.no.20 and 21, each in sum of `9,60,000/- were admittedly dishonoured. the defence of the appellant being struck of we cannot proceed on the basis of appellant’s assertion that he replaced the cheques with two new cheques.14. thus, the act of the respondents to have determined the lease flows not from clause 10 but from the fact that punctual payment of the rent is a condition of the lease.15. the appellant would not dispute that rent commencing from the month of december, 2011 till april, 2013 has not flown from his coffers to those of the respondents. the appellant also does not dispute that `80,000/has not flown to the coffers of the respondents from his coffers for rent pertaining to the ground floor for the month of may, 2013. the appellant does not dispute that outstanding electricity and water charges payable were `45,430/-. thus, concededly the appellant has to pay `28,45,430/-. the respondents have a security deposit in sum of `4,80,000/- under the lease agreement. thus, appellant is liable to pay to the respondents `23,45,430/-.16. the impugned decree is affirmed.17. parties shall bear their own costs in the appeal. (pradeep nandrajog) judge (jayant nath) judge february07 2014 rk
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: February 07, 2014 + RFA(OS) 15/2014 MOHAN MURTI SHANDILYA ..... Appellant Represented by: Ms.Ananya Bhattacharya, Advocate with Mr.Mohan Shandliya, Appellant in person versus PYARE LAL TAHEEM & ANR. ..... Respondents Represented by: Mr.M.M.Kalra, Advocate with Mr.Kunal Kalra, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE JAYANT NATH PRADEEP NANDRAJOG, J.

1. Vide impugned decree dated July 30, 2013 noting that the defence of the appellant had been struck of, a decree in sum of `23,45,430/- has been passed in favour of the respondents and against the appellant with further direction that if decretal amount is not paid within eight weeks the same shall bear simple interest @12% per annum till date of payment.

2. To understand the contention advanced by the appellant as also to understand the decree we need to note the relevant facts.

3. Pyare Lal Taheem and his wife Indra Rani Taheem (the respondents) are owners of a 2½ storeyed building bearing Municipal No.C-106, NDSE Part-II, New Delhi. Vide registered lease-deed dated December 03, 2010, they let out to the appellant the ground and the first floor of their property for a period of three years commencing from December 01, 2010 at a monthly rent of `1,60,000/-. Water and electricity charges had to be borne by the appellant as per actual consumption. Clause No.1 of the lease-deed records that the payment schedule for the rent would be as under:- 4. Sr. No.1. Cheque No.Date Bank Period Amount 378002 26.11.2010 378003 378005 378007 378008 378009 378010 378011 378012 378013 378014 378015 378016 378017 378018 378019 378020 378021 378022 378023 26.11.2010 01.03.2011 01.04.2011 01.04.2011 01.05.2011 01.05.2011 01.06.2011 01.06.2011 01.07.2011 01.07.2011 01.08.2011 01.08.2011 01.09.2011 01.09.2011 01.10.2011 01.10.2011 01.11.2011 01.11.2011 01.12.2011 21. 378024 01.12.2011 -do- 22. 378025 01.12.2012 -do- 23. 378026 01.12.2012 -do- 3 Months Advance Rent & 3 months Security. 01.03.2011 01.03.2011 01.04.2011 01.04.2011 01.05.2011 01.05.2011 01.06.2011 01.06.2011 01.07.2011 01.07.2011 01.08.2011 01.08.2011 01.09.2011 01.09.2011 01.10.2011 01.10.2011 01.11.2011 01.11.2011 01.12.2011 to 30.11.2012 01.12.2011 to 30.11.2012 01.12.2012 to 30.11.2013 01.12.2012 to 30.11.2013 9,60,000/- 2.

3. 4.

5. 6.

7. 8.

9. 10.

11. 12.

13. 14.

15. 16.

17. 18.

19. 20. UCO Bank, Patiala House, New Delhi -do-do-do-do-do-do-do-do-do-do-do-do-do-do-do-do-do-do-do- 80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/80,000/9,60,000/9,60,000/9,60,000/9,60,000/- As per Clause 14 of the lease-deed, the respondents received from the appellant refundable security deposit in sum of `4,80,000/-. Clause 10 of the lease-deed reads as under:

“That in case Lessee desires to terminate the Lease Agreement, for any reason, whatsoever, earlier than the initial period of Three Years, the Lessee shall give two months notice in writing, in advance, of his intention to terminate the Lease Agreement. However, the Lessee shall not terminate the Lease Agreement in the first two years and six months of the Lease Agreement. I the even the Lessee terminates the present agreement before the completion of the First Two Years and Six Months, the Lessee shall be liable to pay the Lease Rent for the balance of the months remaining. The same shall apply to the Lessors also.”

5. A perusal of Clause 10 makes it apparent that the lease could be determined by the lessee by giving two months’ notice in writing but subject to the limitation that the lease would not be terminable in the first two years and six months of the commencement of the lease. In the event the lessee terminated the lease before completion of two years and six months, for the balance period the remaining lease rent had to be paid. The same was to apply to the lessors as well.

6. In other words as per Clause 10 in case appellant determined the lease prior to two years and six months he had to pay the rent for the unexpired portion of the period in question and vice versa.

7. CS(OS)No.1348/2012 was filed by the respondents seeking ejectment, arrears of rent and mesne profits alleging that the cheques No.378023 and 378024, listed at Sl.No.20 and 21 of the schedule as per Clause 1 of the lease-deed were returned by the banker of the appellant due to insufficiency of funds. Pleading that a right accrued to them to determine the lease on account of non-payment of rent they were entitled to recovery possession, arrears of rent and mesne profits till possession was regained.

8. On July 25, 2012, an order was passed in the suit requiring appellant to pay arrears of rent which were admitted to be due within eight weeks. The appellant filed a written statement along with a counter claim in sum of `38,40,000/- alleging that the respondents having terminated the lease prior to two years and six months period expiring and thus the appellant would be entitled to the rent for the unexpired period, as per Clause 10 of the agreement.

9. As proceedings lingered on in the suit the appellant vacated the ground floor on April 30, 2013 but continued to occupy the first floor which he vacated on May 27, 2013.

10. Since rent of the ground and the first floor as per the lease agreement was `1,60,000/- per month, the respondents sought half agreed rent i.e. `80,000/- per month from May 2013 onwards on account of appellant retaining the ground floor of the property which admittedly was handed over on May 27, 2013.

11. The impugned order and decree dated July 30, 2013 notes violation of the interim order requiring appellant to pay the agreed rent and as a result striking of the defence of the appellant. The learned Single Judge has thereafter proceeded to pass a decree with respect to the unpaid rent for the two floor till April 30, 2013 and `80,000/- for the month of May, 2013 pertaining to the ground floor, possession whereof was handed over on May 27, 2013. The decretal sum of `23,45,430/- has been arrived at as under:1.

2. Lease rent from 01.12.2011 to 30.11.2012 `1,60,000/- per month x 12 Lease rent from 01.12.2012 to 01.04.2013 `1,60,000/- per month x 5 RFA (OS) No.15/2014 3.

5. Lease rent for the month of May 2013 `80,000/(First floor of the suit property was handed over to the Plaintiffs. See order dated 01.05.2013. The ground floor of the suit property was handed over to the Plaintiffs on 27.05.2013) `80,000/Electricity and water charges paid by the Plaintiffs for the period the suit property was in occupation of the Defendant `45,430/Total (1+2+3+4) `28,45,430/- 6. Less Security Deposit held by the Plaintiff 7. Total amount to be paid by the Defendant to the Plaintiffs `23,45,430/- 4.

12. `4,80,000/- The contention of the appellant is that he had replaced the cheques which were dishonoured by two cheques of even amount i.e. `4,80,000/each which the respondents deliberately did not encash. According to the appellant if the cheques had been encashed the respondents would not be entitled to determine the lease within two years and six months of commencing of the lease and default would attract Clause 10 of the leasedeed, requiring the respondents to pay the lease sum to the appellant for the balance of the two years and six months period because Clause 10 of the lease agreement cuts ice both ways. If the lessee determined the lease before two years and six months expired, the lessee was to pay to the lessor rent for the remainder period. If the lessor determined the lease, likewise the lessee had to be recompensed.

13. Now, the conceded position is that the respondents received payment under the lease agreement only till the month of November 2011 i.e. the cheques at Sl.No.1 to 19 of Clause 1 of the lease agreement were encashed. The two cheques at Sl.No.20 and 21, each in sum of `9,60,000/- were admittedly dishonoured. The defence of the appellant being struck of we cannot proceed on the basis of appellant’s assertion that he replaced the cheques with two new cheques.

14. Thus, the act of the respondents to have determined the lease flows not from Clause 10 but from the fact that punctual payment of the rent is a condition of the lease.

15. The appellant would not dispute that rent commencing from the month of December, 2011 till April, 2013 has not flown from his coffers to those of the respondents. The appellant also does not dispute that `80,000/has not flown to the coffers of the respondents from his coffers for rent pertaining to the ground floor for the month of May, 2013. The appellant does not dispute that outstanding electricity and water charges payable were `45,430/-. Thus, concededly the appellant has to pay `28,45,430/-. The respondents have a security deposit in sum of `4,80,000/- under the lease agreement. Thus, appellant is liable to pay to the respondents `23,45,430/-.

16. The impugned decree is affirmed.

17. Parties shall bear their own costs in the appeal. (PRADEEP NANDRAJOG) JUDGE (JAYANT NATH) JUDGE FEBRUARY07 2014 rk