Twinkle Builders & Promoters Pvt. Ltd. v. Skai Company

1. This is a suit for recovery of agreed damages, electricity & water bills and costs for damage caused to the leased premises. Background facts

2. That plaintiff claims to be the owner of Flat No.2 situated on the Ground and Lower Ground Floors, admeasuring 2758.60 sq.ft., comprised in the building commonly known and bearing Municipal No.10 A, Prithvi Raj Road, New Delhi together with the front lawn appurtenant thereto measuring 1400 sq.ft. (hereafter ‘leased premises’). It was leased out to the defendant by way of a ‘lease deed’ 2015:DHC:5095 dated 1st May, 2003 for a fixed period of 33 months w.e.f. 1st May, 2003 to 31st January, 2006 at a monthly rent @ Rs.90,000/-. For various equipments, fittings and fixtures, hire charges @ Rs.35,000/per month was payable to the plaintiff and a separate ‘hire agreement’ was also executed (P-3). Hence, the total amount payable was Rs.1,25,000/- per month.

3. Alleging that the leased premises was not vacated by the defendant upon expiry of the lease deed, the plaintiff instituted this suit, inter alia, for recovery of possession. However, during the pendency of the suit, vacant and peaceful possession of the leased premises was handed over to the plaintiff on 9th May, 2007. Hence, the plaintiff sought to amend the plaint to incorporate the subsequent events and modify the reliefs accordingly which was allowed by an order dated 31.08.2007.

4. On18.01.2008, issues were framed and thereafter, the parties led evidence. The plaintiff has led evidence through Sh. N. N. Pandey, authorized representative of the plaintiff-company. He was crossexamined by the defendant and has supported the averments in the plaint. The defendant led evidence through one Mrs. Shakun Mollchandani, authorized representative of the defendant-company. However, due to consistent defaults, the defendant‟s evidence was closed on 20.11.2014. On the last date of hearing, none appeared for the defendant. Even today, none appears for the defendant and therefore, the matter is taken up for final disposal on the basis of the material on record. Issue wise contentions and findings Issue Nos.[1] & 7

5. These issues are being dealt with together as they are related. To prove that the tenancy/lease stood terminated by the efflux of time, the plaintiff has produced a copy of the registered lease deed dated 1st May, 2003 (Ex. P-2). It stipulates that the lease would be for a period of 33 months commencing from 1st May, 2003 and ending on 31st January, 2006. It also makes it clear that the said period would be fixed and that the lessee/defendant would not be entitled to terminate the same. With respect to renewal, it provides that the lessee/defendant shall give three months‟ notice in writing by Registered Post to the lessor/plaintiff prior to the expiry of the agreement and that if the terms are not mutually agreed upon in writing, the lessee/defendant shall hand over vacant physical possession of the leased premises. Insofar as the hire agreement is concerned, it stipulates that it would run concurrently and shall be coterminus with the lease deed.

6. The learned counsel for the plaintiff draws the attention of the Court to various letters written by the plaintiff supported by postal receipts, whereby the defendant was asked to vacate the leased premises (Mark B; PW-1/16, 1/17 & 1/18; Mark C; PW-1/20, 1/21 & 1/22; P-10; PW- 1/23, 1/24, 1/27 & 1/28). She also draws the attention of the Court to a letter (Ex. PW-12) written by Mrs. Shakun Mulchandani, authorised representative of the defendant, in particular to the following: “.........never wanted to stay at 10A or else I would have signed a new lease when you were kind enough offer it.......I except to vacate by the end of January, 2007...”

7. Attention of the Court is also drawn to the cross-examination of Mrs. Mulchandani (DW-1). She has deposed that the parties had an oral agreement for renewal of the lease/tenancy. She admits, however, that no letter was written to the plaintiff as mandated under Clause (4) of Part III of the lease deed. Furthermore, she voluntarily deposes that there was no need to write any letter since the parties had a very cordial relationship.

8. The Court would note that the case set up by the defendant is that there was an oral agreement for renewing the lease/tenancy for a further period of 33 months at an enhanced rate, i.e., Rs. 1,50,000. The terms and conditions of the same have been stated in the Written Statement (WS) and in the evidence of DW-1. However, perusal of the lease deed shows that it was incumbent upon the parties to enter into a formal written contract for renewal of lease as provided under Clause (4) of Part III thereof. Furthermore, the defendant has not been able to prove that there was an oral agreement for extension of the lease.

9. In the circumstances, the Court is of the view that the plaintiff has successfully discharged its burden to prove that the lease/tenancy in favour of the defendant stood terminated by the efflux of time i.e. 31st January, 2006. These issues are answered accordingly. Issue No. 2 & 3:

10. These issues are being dealt with together. The plaintiff claims an amount of Rs. 92,60,000/- for the period 1st February,2006 – 9th May 2007 as the agreed damages. The learned counsel for the plaintiff draws the attention of this Court to the damages clause in the lease deed which reads as under: “PROVIDED ALWAYS should the LESSEE continue to occupy the DEMISED PREMISES after the expiry of the term hereunder granted of prior termination the LESSEE shall be liable to pay damages at the rate of Rs.20,000/- per day in addition to the LESSEE’s obligation to pay to the LESSOR the charges herein agreed to be paid. It is clearly agreed that receipt of payment by the LESSOR from the LESSEE shall be without prejudice to the LESSOR’s right to proceed against the LESSEE for vacation of the DEMISED PREMISES and such other actions as may be open to the LESSOR.”

11. Keeping in mind the express damages clause in the lease agreement, this Court finds that the plaintiff is entitled to an amount of Rs.92,60,000/- for the period 1st February, 2006 to 9th May, 2007, i.e., from the date of expiry of the lease deed till the date when possession of the leased premises was handed over to the defendant. This Court also finds that no evidence has been lead on behalf of the defendant rebutting the said claim of the plaintiff. This issue is answered in favour of the plaintiff and as above. Issue No.4

12. The plaintiff claims that the defendant had not paid electricity and water bills to the tune of Rs.1,10,376/- and that it was forced to pay up to avoid disconnection. The said bills and the corresponding receipts have been marked as marked as Ex.PW-1/33 to 39. This Court finds that the defendant has led no evidence rebutting the aforesaid claim.