Tea Trade Tech. Pvt. Ltd. & Anr. v. Corporate Services & Anr.

1. The appeal impugns the judgment and decree dated 30th April, 2009 of the Court of the Additional District Judge (ADJ), South-II, Patiala House Courts, New Delhi in Suit No.247/2008 filed by the appellants/plaintiffs, to the extent the same denies to the two appellants/plaintiffs the arrears of rent and consultancy charges.

2. Notice of the appeal was ordered to the issued and the three respondents/defendants were proceeded against ex-parte. Vide judgment dated 15th November, 2011, the appeal was allowed and a decree was passed in favour of the appellants/plaintiffs and against the three respondents/defendants for recovery of Rs.25,000/- per month from 1st 2013:DHC:6108 October, 2007 to 30th June, 2009. However, on applications being filed by the respondents/defendants, the said decree was set aside vide order dated 25th September, 2013 and the appeal posted for today for hearing. It may be noted that in the interregnum the appellant/plaintiff No.2 had died and vide the same order dated 25th September, 2013, his legal heirs were also substituted.

3. The counsels for the parties have been heard.

4. The counsel for the appellants/plaintiffs has argued, (i) that the respondent/defendant No.1, of which the respondents/defendants No.2 & 3 were/are partners, was a tenant under the appellants/plaintiffs in property No.M-2-I, Kaushalya Park, Surya Mansion, Hauz Khas, New Delhi, though under documents titled License Deed and a Consultancy Agreement, for an aggregate amount of Rs.25,000/- per month with effect from the year 2005;

(ii) that the tenanted premises were sealed by the Municipal Corporation of

Delhi (MCD) on 4th April, 2006; (iii) however, upon the respondents/defendants filing an affidavit to the effect that they will not misuse the property, the premises were de-sealed; (iv) that the respondents/defendants continued to use the premises till October, 2007 when the same were again sealed, for the reason of the respondents / defendants having not stopped the misuse; (v) that the respondents/defendants stopped paying any amounts to the appellants/plaintiffs from 1st October, 2007 and also did not offer or deliver back possession of the premises; (vi) that the appellants/plaintiffs accordingly in September, 2008 terminated the tenancy of the respondents/defendants and instituted the suit from which this appeal arises, for recovery of possession of the premises and for mesne profits/damages for use and occupation; (vii) that vide the impugned judgment and decree dated 30th April, 2009, though a decree for recovery of possession of the premises was passed in favour of the appellants/plaintiffs but no relief of recovery of any amount due since 1st October, 2007, was granted; (viii) that the respondents/defendants on 26th June, 2009 delivered possession of the premises to the appellants/plaintiffs after having the same de-sealed and removing their goods therefrom. The appellants/plaintiffs thus claim arrears of mesne profits from 1st October, 2007 to 30th June, 2009.

5. Per contra, the counsel for the respondents/defendants has invited attention to the Settlement dated 26th /30th June, 2009 signed between the parties at the time of delivery of possession of the premises by the respondents/defendants to the appellants/plaintiffs and the last clause whereof is as under: “All dues in regards to the premises have been cleared up to date in accordance to the above order, the order given by the court has been adhered to and there are no further dues or claims in respect to the said property.”

6. He thus contends that in view thereof, nothing is due to the appellants/plaintiffs.

7. The counsel for the appellants/plaintiffs does not controvert the execution of the document aforesaid. His contention however is that the appellants/plaintiffs had given the certificate aforesaid of no dues/no claims only with reference to the order/judgment/decree dated 30th April, 2009 of the Court, under which no money had been awarded to the appellants/plaintiffs and by the aforesaid certificate did not give up their rights to prefer an appeal against the judgment and decree and this appeal was filed on 3rd August, 2009.

8. The aforesaid contention is untenable.

9. If the purport of the parties at the time of execution of the document aforesaid, was only to deliver possession in compliance of the decree, there would have been no occasion for the parties to mention about the dues in regard to the property. The reference in the said document/Settlement to the order/judgment/decree which had dismissed the monetary claim of the appellants/plaintiffs, can also be construed, as parties meaning/stating that the appellants/plaintiffs were not entitled to any amounts from the respondents/defendants. Moreover, besides stating so, the parties further expressly stated that there are no further dues or claim with respect to the property.

10. The appellants/plaintiffs having so agreed, are deemed to have given up their claim even if any against the respondents/defendants with respect to the property and cannot be permitted to re-agitate the same.

11. There is thus no merit in the appeal, which is dismissed; however in the circumstances, no order as to costs. Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J. NOVEMBER 27, 2013 bs