Full Text
HIGH COURT OF DELHI
Date of Decision: 19.11.2024
RAJIV KUMAR .....Appellant
Through: Mr. B.D. Sharma and Mr. S.K.
Malhotra, Advs. alongwith appellant in person
Through: Mr. Anurag Ojha, Mr. D. N.
Chaturvedi, Mr. Deepak Somani and Ms. Chanchal Gupta, Advs.
HON'BLE MR. JUSTICE SAURABH BANERJEE REKHA PALLI, J (ORAL)
21.10.2024)
JUDGMENT
1. These are two applications, the first filed by the respondent seeking modification of order dated 21.10.2024 insofar as it does not indicate that the appellant would also withdraw his pending suit being CS(COMM)387/2024, pending before the District Judge, Commercial-06, Tis Hazari Courts, Delhi, wherein he had sought recovery of a sum of CM APPL. 67196/2024 (by appellant for grant of time to deposit money and file affidavit in compliance of order dt. 21.10.2024) Rs.13.50 lakhs towards cost of renovation purportedly carried out in the suit property. The plea of the respondent is that once the parties had arrived at a settlement with the appellant undertaking to vacate the premises on or before 30.04.2025 and pay a sum of Rs.25 lakhs towards arrears of mesne profits alongwith electricity, GST and water charges, he could not be permitted to prosecute his claim for recovery of the amount purportedly spent by him towards renovation of the suit property.
2. The second application being CM APPL.67196/2024 has been filed by the appellant seeking extension of time to file the affidavit of undertaking in terms of order dated 21.0.2024 as also to pay the amount towards the arrears of maintenance which was required to be paid in three installments.
3. At the outset, we may note that the present appeal was filed assailing the judgment and decree dated 26.04.2024 passed by the learned District Judge, Commercial Courts, Central District, Tis Hazari Courts, New Delhi in CS(COMM)2675/2022. Vide the impugned order, the suit for possession and recovery of arrears of mesne profits filed by the respondent/plaintiff was decreed by the learned Trial Court. On 21.10.2024, when the appeal was listed before this Court for preliminary submissions, the learned counsel for the appellant had argued the appeal at length but was unable to deny that the appellant had entered into the possession of the subject property i.e. shop at Ground Floor portion towards Street no.28 of built-up property bearing no.3269-3271/27-28, Beadon Pura, Karol Bagh, New Delhi-110005, admeasuring 250 sq. ft., as a lessee under the respondent/plaintiff as also the fact that the appellant had defaulted in making payment of due rent and mesne profits. Further, there was no denial by the appellant that he had been served with a legal notice dated 15.04.2022 by the respondent thereby terminating his tenancy w.e.f. 15.05.2022.
4. In these circumstances, learned counsel for the appellant upon realising that the appeal was meritless, had on instructions from the appellant who was present in Court, prayed that the appeal be disposed of by granting the appellant time till 30.04.205 to vacate the suit property subject to his paying a sum of Rs.25 lakhs towards arrears of mesne profits to the respondent in three instalments commencing from 30.11.2024. The appellant had further assured this Court that he would, w.e.f. 01.11.2024, pay mesne profits @ Rs.50,000/- per month alongwith electricity, GST and water charges till handing over of vacant possession of the suit property to the respondent and also file an affidavit of undertaking in these terms within a period of one week.
5. Consequently, this Court, with no objection from the respondent, had granted time to the appellant to vacate the suit premises on or before 31.04.2025, subject to his filing an affidavit, within a period of one week to undertake therein to pay a consolidated sum of Rs.25 lakhs towards arrears to the respondent in three instalments. The relevant extracts of the said order read as under:
consolidated sum of Rs.25 lakhs towards arrears as earlier volunteered. This amount will be paid in three instalments as under:-
(i) Rs.10 lakhs on or before 30.11.2024.
(ii) Rs.10 lakhs on or before 30.01.2025.
(iii) Rs. 05 lakh on or before 30.03.2025.
5. It is clarified that, additionally, the appellant will also continue to pay to the respondent mesne profits @ Rs.50,000/- per month w.e.f.01.11.2024 besides electricity, GST and water charges on or before 7th of every month, till handing over of the physical and vacant possession of the suit property i.e. shop at Ground Floor portion towards Street no. 28 of built-up property bearing no. 3269-3271/27-28, Beadon Pura, Karol Bagh, New Delhi-110 005, admeasuring 250 Sq. ft., shown in the red colour in the site plan Ex.PW1/1 to him.
6. The appellant will file his affidavit of undertaking to this effect within a period of two weeks, specifically undertaking that he will not create any third party rights in the suit property or part with the possession thereof to any third party.”
6. Admittedly, though the appellant continues to be in possession of the suit property, he has, till date, neither filed the requisite affidavit nor paid any amount towards mesne profits and has now moved an application seeking extension of time for payment of arrears. Notably, even though the appellant was required to pay mesne profits towards the month of November, 2024 on or before 07.11.2024, he has given no justification as to why the said amount has not been paid. There is also no reason forthcoming for not filing the affidavit in terms of this Court’s order dated 21.10.2024.
7. Having considered the submissions of learned counsel for the parties and perused the record including the order dated 21.10.2024, we find that the appellant is now trying to wriggle out of his oral undertaking given to the Court and has, therefore, neither filed the affidavit which was required to be filed within one week nor tendered any amount to the respondent towards mesne profits for the month of November, 2024. We also find merit in the respondent’s plea that the appellant having agreed to amicably resolve all his pending disputes with the respondent qua the suit property, he could not be permitted to pursue his claim by way of CS (COMM) 387/2024 to seek recovery of a sum of Rs.13.[5] lakhs towards purported renovation made by him in the suit property.
8. In the light of this position emerging from the record, we have put to the learned counsel for the appellant as to whether the appellant would be willing to withdraw the suit being CS (COMM) 387/2024 instituted by him and also file an affidavit undertaking to abide by his assurances given to this Court on 21.10.2024.
9. Learned counsel for the appellant on instructions from the appellant, who is present in Court submits that the appellant is neither willing to withdraw the suit nor willing to file any affidavit but will clear the agreed arrears of mesne profits of Rs.25 lakhs by paying a sum of Rs.50,000/- per month towards arrears alongwith Rs.50,000/- towards future mesne profits. His plea, therefore, being that the appellant should be permitted to continue to occupy the suit property for a further period of fifty months i.e. till 30.12.2029.
10. In the light of this stand taken by the appellant which is not at all acceptable to the respondent and in our view, rightly so, we have no other option but to recall the order dated 21.10.2024 and revive the appeal alongwith accompanying applications for disposal on merits.
11. The applications are, accordingly, disposed of by recalling the order dated 21.10.2024 and simultaneously reviving the appeal against the impugned judgment/ order dated 26.04.2024 alongwith all accompanying applications.
12. Having considered the factual matrix as also the grounds urged by the appellant as noted in paragraph nos.[3] & 4 hereinabove, we are of the view that the appeal is absolutely meritless. We may also note that on 21.10.2024 while disposing of the appeal on the basis of the undertaking given by the appellant, we had categorically observed in paragraph no.7 of our order that there was no infirmity in the impugned judgment.
13. In the light of the aforesaid, the appeal is alongwith the accompanying applications, dismissed with costs of Rs.50,000/- to be paid by the appellant in favour of respondent within two weeks.
14. Needless to state, it will be now open for the respondent to pursue his execution proceedings in accordance with law.
(REKHA PALLI) JUDGE (SAURABH BANERJEE)
JUDGE NOVEMBER 19, 2024