Full Text
HIGH COURT OF DELHI
Date of Decision: 11th April, 2023
MANJIT SINGH KOCHHAR..... Plaintiff
Through: Mr.Gurbir Singh Raikhy, Adv.
Through: Mr.Siddharth Yadav, Sr. Adv. with Mr.Narender Lodiwal, Adv. for D-
1 & D-2.
Mr.Pratyush Sharma & Mr.Simran Kohli, Advs. for D-5.
Mr.Ranvir Singh & Mr.Rishi Kumar Singh Gautam, Advs. for
D-6.
Ms.Arti Singh, Mr.Aakashdeep Singh Roda, Ms.Pooja Singh &
Mr.B.P. Singh, Advs. for HPCL.
JUDGMENT
1. These applications have been rendered infructuous in view of the order dated 13.03.2019 passed in I.A. No. 26180/2014.
2. The applications are accordingly disposed of. I.A. 16062/2014
3. The learned counsel for the plaintiff submits that without prejudice to the rights and contentions of the plaintiff, the plaintiff does not press the present application.
4. The same is accordingly disposed of. I.A. 5123/2016, I.A. 14579/2017 & 14580/2017
5. I.A. 5123/2016 has been filed by the plaintiff, inter alia, praying for the following relief:- “(a) pass direction against Defendant Nos.[1] and 2 preventing them from acting in violation of order dated 26.08.2014 of this Hon'ble Court with costs;”
6. The said application has been filed by the plaintiff stating that in spite of the order dated 26.08.2014 restraining the defendant nos.[1] and 2 from creating any third party interest in property bearing No. 71, Sunder Nagar, New Delhi, the defendant nos.[1] and 2 have given an advertisement proposing to let out the first floor of the said property.
7. During the pendency of the said application, the defendant no.1 admittedly proceeded to let out the first floor of the suit property to a tenant vide a registered Lease Deed dated 31.08.2017.
8. Pursuant thereto, the plaintiff filed I.A. 14579/2017, praying that the said Lease Deed be set aside being in violation of the interim order dated 26.08.2014; and I.A. 14580/2017, praying that the defendant no.1 be proceeded against for having violated the interim order passed by this Court.
9. As all the three applications arise out of the similar factual situation and are, in fact, connected with each other, they are being disposed of by this common order.
10. This Court by its order dated 26.08.2014 passed the following interim order:- “In the meanwhile, defendants will not transfer or create a third party interest in the aforementioned Sunder Nagar property.”
11. The Court noted that the first floor of the suit property is in occupation of the then defendant no.4 as a tenant on a rent of Rs.3,85,000/- per month, which had been collected by the defendant nos.[1] and 2.
12. It is not denied that the then defendant no.4 had vacated the first floor of the suit property on 31.03.2016.
13. As noted hereinabove, the plaintiff filed I.A. 5123/2016 stating that on the vacation of the property by the defendant no. 4, the defendant no.1 and 2 were in the process of inducting a new tenant in breach of the interim order dated 26.08.2014 passed by this Court, and prayed for an order restraining the defendants from acting in violation of the interim order.
14. In reply to the said application, the defendant no.1 took a stand that the interim order dated 26.08.2014 merely restrains the defendant no.1 from changing the title of the suit property and not possession thereof. The said reply was filed on or about 25.07.2016. The said application remained pending consideration before this Court.
15. In the meantime, without seeking permission of this Court or even caring to inform this Court, the defendant no.1 proceeded to induct a new tenant to the first floor of the suit property vide registered Lease Deed dated 31.08.2017. This forced the plaintiff to file I.A.s 14579/2017 and 14580/2017 with the prayers as noted hereinabove.
16. The learned counsel for the plaintiff, placing reliance on the judgment of the Supreme Court in Krishna Kumar Khemka v. Grindlays Bank P.L.C. And Others, AIR 1991 SC 899, submits that a Lease comes within the meaning of transfer and, therefore, creation of a new Lease in spite of the interim order dated 26.08.2014 would be in violation of the said interim order. He submits that the defendant no.1 having acted in violation of the interim order, deserves to be proceeded against in accordance with Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (in short, ‘CPC’). He submits that the Lease Deed also deserves to be cancelled.
17. The said prayer is supported by the learned counsel for the defendant no.5, who further submits that the language of the order dated 26.08.2014 is unambiguous. In any case, the defendant no.1 neither sought permission of this Court before entering into the Lease Deed nor sought any clarification from this Court.
18. On the other hand, the learned senior counsel for the defendant no.1 submits that the defendant no.1 was under an impression that the interim order dated 26.08.2014 merely restrains the defendant no.1 from transferring the title of the suit property to a third party and does not restrain the defendant no. 1 from leasing out the same. He submits that as the then tenant was already in possession of the first floor of the suit premises, as is also recorded and noted in the order dated 26.08.2014, therefore, the defendant no.1 was under an impression that the defendant no.1 can induct a new tenant on the earlier tenant vacating the suit property.
19. He submits that the defendant no.1 acted bona fide inasmuch as the new tenant was, in the new Lease Deed itself, directed to deposit the rent under the Lease Deed with the Registrar General of this Court, as was directed vis-à-vis the defendant no.4 by this Court in its order dated 18.05.2015.
20. He submits that the property remained vacant for almost a year and a half and during the interregnum the defendant no.1 had to bear the expenses for the up-keep of the said property and in carrying out extensive repairs. He submits that the defendant no. 1, therefore, had no option but to lease out the property to the new tenant.
21. I have considered the submissions made by the learned counsels for the parties.
22. I am not impressed with the explanation given by the learned senior counsel for the defendant no.1. This Court, in no unambiguous terms, restrained the defendants from transferring or creating any third party interest in the suit property. Creation of a Lease is clearly a creation of an interest in the property as has been held by the Supreme Court in a number of judgements, such as, Krishna Kumar Khemka (supra); Associate Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262; and Sohan Lal Naraindas v. Laxmidas Raghunath Gadit, (1971) 1 SCC
276. The defendant no.1, therefore, clearly acted in violation of the order dated 26.08.2014 when he created a Lease in favour of the third party. The defendant no. 1 cannot plead any confusion regarding the ambit and scope of the restraining order. In fact, as rightly pointed out by the learned counsel for the defendant no. 5, if there was any bona fide doubt in the mind of the defendant no.1 on the scope and ambit of the interim order, it was for the defendant no.1 to seek clarification from this Court before unilaterally proceeding to induct a new tenant. The interim order of this Court was absolutely clear and unambiguous. The defendant no.1 could not have created a doubt in the ambit and scope of that order by clearly misreading the same.
23. The fact that the new tenant was asked by the defendant no. 1 to deposit the rent before this Court would not act as a shield to the defendant no.1 for having violated the order of this Court.
24. I therefore, find that the defendant no. 1 acted in breach of the interim order dated 26.08.2014.
25. At the same time, this Court takes note of the fact that much prior to the creation of the new Lease, the defendant no.1 in his reply to I.A. 5123/2016 had taken a stand that the order of 26.08.2014 does not restrain him from transferring the possession of the suit property to a third party. Though the said stand is legally incorrect, in my opinion, it acts as a mitigating circumstance for determining the penalty with which the defendant no. 1 should be visited with. The new Lease was created by the defendant no. 1 long after the above stand had been taken by him in his reply to I.A. 5123/2016. During the interregnum the property remained vacant.
26. Another mitigating circumstance which arises is the fact that the rent received from the new tenant is being deposited with this Court regularly. Though a doubt has been created by the learned counsels for the plaintiff and the defendant no.5 on the amount of rent being paid by the new tenant as being lesser than the market rent, no material has been placed on record to show what the rate of rent for the said property was during the relevant period. The rent being deposited in Court, the interest of the plaintiff/applicant stands protected.
27. The fact that the property remained vacant for almost one and a half years, during which time clearly it would have required expenses for its up-keep, also persuades me to show leniency to the defendant no. 1.
28. The new Lease, in any case, is to expire on 31.08.2023.
29. In view of the above, I find that the defendant no.1 has acted in violation of the order dated 26.08.2014 in creating a new Lease in favour of a third party. However, keeping in view the mitigating circumstances, the defendant no.1 is visited with a penalty of paying costs of Rs.1,00,000/- to the plaintiff within a period of four weeks from today.
30. The applications are disposed of in the above terms. I.A. 6219/2016
31. The learned senior counsel for the defendant no.1 submits that the defendant no.1/applicant shall be filing proper details of the expenses claimed to have been incurred on the suit premises. Let the needful be done within a period of two weeks.
32. On receipt of copies thereof, the plaintiff and the defendant no.5 shall file their response thereto within a period of four weeks thereafter. I.A. 10203/2020
33. The learned counsel for the defendant no.6/applicant prays for and is granted a period of three weeks to file a rejoinder.
34. List on 7th August, 2023. CS(OS) 2552/2014 & CC 32/2015, CC 2/2023, I.A. 3270/2015, 14719/2015, 16251/2015, 21879/2015, 14286/2018 & 3544/2019
35. As noted hereinabove, the new Lease is stated to be expiring on 31.08.2023. The defendant no.1 shall not renew the Lease Deed or induct a new tenant without seeking express permission from this Court. For seeking such permission, the defendant no.1 shall be at liberty to move an appropriate application.
36. List on 7th August, 2023.
37. Interim orders to continue.
NAVIN CHAWLA, J APRIL 11, 2023