Full Text
HIGH COURT OF DELHI
Date of Decision: 27.03.2023
HOTEL HANS PRIVATE LIMITED & ORS ..... Plaintiffs
Through: Mr.Ajay Sondhi, Ms.Prachi Hasija, Ms.Lakshpreet, Advs.
Through: Mr.Mishal Vij, Adv.
JUDGMENT
1. This application has been filed under Order XII Rule 6 of the Code of Civil Procedure, 1908 (in short, ‘CPC’) praying for a judgment based on the admissions of the defendants.
2. The present suit was filed by the plaintiffs praying for the following reliefs: “(a) a decree of possession in favour of the Plaintiffs and against the Defendants, their agents, assigns or any person claiming under the Defendants in respect the Suit Property, directing the Defendants to deliver peaceful and vacant possession of the Suit Property i.e. 3rd floor and the terrace floor of The Crescent at The Qutub, Lado Sarai, New Delhi; (b) pass a decree for a sum of Rs. 15,10,960.00 in favour of the Plaintiff No. 1 and against the defendants on account arrears of rent for the period of December 2013 - April 2014 in respect of the Suit Property alongwith interest @18% from the date of the rent falling due till date of actual payment;
(c) pass a decree for a sum of Rs.
6,31,730.00 in favour of the Plaintiff No. 2 and against the Defendants on account arrears of rent for the period of December 2013 - April 2014 and TDS deducted but not paid for the period of August 2013 - November 2013 in respect of the Suit Property alongwith interest @18% from the date of the rent falling due till date of actual payment;
(d) pass a decree for a sum of
Rs.2,47,500.00, alongwith interest, in favour of the Plaintiff No. 3 and against the Defendants on account arrears of rent for the period of December 2013 — April 2014 and TDS deducted but not paid for the period of August 2013 - November 2013 in respect of the Suit Property alongwith interest @18% from the date of the rent falling due till date of actual payment; (e) pass a decree for a sum of Rs. 6,31,730.00, alongwith interest, in favour of the Plaintiff No. 4 and against the Defendants on account arrears of rent for the period of December 2013 - April 2014 and TDS deducted but not paid for the period of August 2013 - November 2013 in respect of the Suit Property alongwith interest @18% from the date of the rent falling due till date of actual payment; (f) pass a decree for a sum of Rs. 1,67,58,500.00 (Rupees One Crore Sixty Seven Lakhs Fifty Eight Thousand Five Hundred) in favour of the Plaintiffs, in proportion with their ownership as reflected in Paragraph 1, and against the Defendants on account arrears of rent for the period of May, 2014 - June, 2015 in respect of the Suit Property, alongwith interest @18% from the date of the rent falling due till date of actual payment; (g) pass a decree of damages/mesne profits including pendente-lite and future damages in favour of the Plaintiffs, in proportion with their ownership as reflected in Paragraph 1, and against the Defendants under the provisions of Order 20 Rule 12 of the Code of Civil Procedure, 1908 for the use of the Suit Property from 5.07.2015 till the actual date of handing over of the vacant possession of the Suit Property, as this Hon'ble court may deem fit and appropriate and proper, and thereupon this Hon'ble court may be pleased to award the said mesne profits in favour of the Plaintiffs, upon which the Plaintiffs undertakes to pay proper court fees as and when ordered by this Hon'ble court to do so; (h) award interest @18% per annum on the mesne profits so determined by this Hon'ble Court from the date the same are due till the date of payment;
(i) award cost of the suit in favour of the
3. It is the case of the plaintiffs that the plaintiffs are the coowners /landlords of the property that is, Block A and B, commonly known as ‘The Crescent at the Qutub’ constructed on the plot of land situated at Lado Sarai, New Delhi, together with all the facilities provided therein.
4. By way of a lease deed dated 26.10.2013, the plaintiffs had leased the 3rd floor and the terrace floor of the property (hereinafter referred to as the ‘Suit Property’) to the defendants for a period starting from 01.08.2013 till 31.07.2016, for setting up and operating a restaurant and bar.
5. In terms of the lease deed, the defendants were to pay a monthly rent of Rs.11 Lakh, exclusive of maintenance, electricity and water charges, service tax and other taxes. Under the lease deed, no security deposit was provided by the defendants.
6. The defendants had issued 36 post-dated cheques in favour of the plaintiffs for the lease amounts. Until December, 2013, the defendants paid rent on a timely basis, however, thereafter the cheques started getting dishonoured. The defendants made partial payments between December, 2013 till April, 2014 and since May, 2014, none of the cheques issued by the defendants have been honoured.
7. The plaintiffs were further aggrieved of the fact that for the period of August 2013, till November, 2013, the defendants did not furnish the TDS Certificates for the rent amount. Moreover, for the period of December, 2013 till April, 2014, the defendants have not furnished the TDS certificates on the part payment made by the defendants.
8. The plaintiffs claim that they continued to deposit the service tax for the lease of the suit property for the period of August, 2013 till June, 2015.
9. The plaintiffs claimed that the defendants defaulted in payment of rent and as on 30.06.2015, therefore, an amount of Rs.2,00,00,420/-, inclusive of service tax and exclusive of interest, was payable to the plaintiffs. The plaintiffs claimed the above amount along with interest at the rate of 18% per annum from the defendants.
10. The plaintiffs terminated the lease deed vide notice dated 18.06.2015 and, therefore, claimed damages/mesne profits from the defendants for the period beyond 05.07.2015 at the rate of Rs.11,50,000/- per month.
11. On 14.10.2015, this Court recorded the statement of the defendant no. 2, who is the Managing Partner of the defendant no. 1, that the defendants shall hand over the possession of the suit premises to the plaintiffs before the Delhi High Court Mediation and Conciliation Centre (in short, ‘Mediation Centre’). Accordingly, the parties were referred to the Mediation Centre for settlement of the monetary disputes.
12. The parties arrived at an amicable settlement of their inter se disputes before the Mediation Centre and executed a Settlement Agreement dated 06.11.2015, recording the terms thereof. The defendants, however, did not abide by the terms of the Settlement Agreement. The defendants neither vacated the suit premises within 60 days, as stipulated in the settlement agreement, nor did they furnish the amount for such delay which amounted to Rs. 9 Lakh as per Clause (iv) of the Settlement Agreement. Certain cheques given by the defendants towards their admitted dues were also not honoured on presentation. The defendants finally vacated the suit premises on 02.04.2016.
13. On 04.04.2016, this Court passed the following order: “IA. Nos.16374/2015 & 873/2016
1. It is informed by both the parties that the defendants have since removed its belongings from the suit property on 02.04.2016.
2. In terms of the settlement agreement, the defendants were granted 60 days time for lifting the goods, i.e. before 05.01.2016. It was also agreed that they shall pay Rs.30,000/- per day in case they fail to lift the goods for the next 30 days, which would come to Rs.[9] Lakhs up to 04.02.2016. The settlement also provided that if the defendants fail to lift the goods despite the said penalty period expiring, the settlement shall stand vitiated and shall be null & void and the parties shall be free to take recourse to legal remedies available.
3. This eventuality has fructified, firstly, for the reason that the cheques for Rs.[3] Lakhs have been dishonoured upon presentation and the defendants have also failed to remove the goods within the 30 days grace time and the defendants have also not made payment of Rs.[9] Lakhs payable in terms of clause (iv) of the settlement agreement. Accordingly, the suit is liable to be continued.
4. The first relief of possession stands satisfied. The suit survives in respect of the other reliefs sought in the plaint.
5. The defendants have not filed the written statement since, at the initial stage itself, the defendants came forward to settle the matter. The defendants are now granted 30 days time to file the written statement and original documents. Replication/ original documents be filed by the plaintiffs within 30 days thereafter.
6. List the matter before the Joint of documents and list before the Court on 28.09.2016 for framing of issues.”
14. The learned counsel for the plaintiffs submits that in the written statement filed by the defendants, there is no denial of the execution of the lease deed dated 26.10.2013 and of the rental payable in terms thereof. The date of vacation of the property is also admitted. He submits that the plaintiffs confine their prayers only to the said lease rentals and only till the period of the actual handing over of the possession of the suit premises to the plaintiffs.
15. The learned counsel for the defendants submits that as the parties have arrived at an amicable settlement before the Mediation Centre, in case of any breach by the defendants, the remedy of the plaintiffs would only lie in the form of execution of the Settlement Agreement dated 06.11.2015 and, therefore, the plaintiffs cannot proceed with the present suit.
16. In my view, the above submission cannot be accepted. This Court in its order dated 04.04.2016 has already taken into consideration the effect of the breach of the terms of the Settlement Agreement by the defendants. As noted therein, the Settlement Agreement itself records that in case the defendants fail to remove their goods within the time stipulated in the Settlement Agreement, the Settlement shall stand vitiated and shall be null and void and the parties shall be free to take recourse to the legal remedies available to them under law. The defendants having breached the terms of the Settlement Agreement, cannot be heard to say that the plaintiffs must be considered bound by the same or that the only remedy of the plaintiffs is to enforce the said Settlement Agreement.
17. As noted hereinabove, the execution of the lease agreement and the rent agreed to be paid thereunder by the defendants to the plaintiffs is not denied. It is also not denied that the possession of the suit premises was handed back to the plaintiffs by the defendants only on 02.04.2016.
18. I, therefore, find merit in the present application. The same is allowed.
19. The suit is decreed directing the defendants to pay to the plaintiffs, the lease rental as agreed in the lease deed dated 26.10.2013 for the period up till 02.04.2016, along with interest at 9% per annum.
20. The plaintiffs shall also be entitled to costs of the suit.
21. Let the decree sheet be prepared accordingly.
NAVIN CHAWLA, J MARCH 27, 2023