Delhi High Court
Ved Vrat Sharma vs Auto Needs (I) Pvt. Ltd. on 22 July, 2013
IN THE HIGH COURT OF DELHI AT NEW DELHI
CS (OS) No. 939 of 2009
Reserved on: July 4, 2013
Decision on: July 22, 2013
VED VRAT SHARMA ..... Plaintiff
Through: Mr. Ramesh Kumar, Advocate.
versus
AUTO NEEDS (I) PVT. LTD. ..... Defendant
Through: Mr. Sanat Kumar, Advocate
CORAM: JUSTICE S. MURALIDHAR
ORDER
19.07.2013 IA Nos. 11504 of 2009 & 5959 of 2013
1. The Plaintiff, Mr. Ved Vrat Sharma, has filed the present suit against the Defendant, Auto Needs (I) Private Limited, seeking possession of the industrial plot bearing No. 507, Patparganj Industrial Area, Delhi - 110 092 ('the suit property') including the basement admeasuring 2500 sq. ft and ground floor admeasuring 2300 sq. ft, as shown in red colour in the site plan. He has further sought a decree in the sum of Rs. 11,79,780 as arrears of rent and service tax thereon from 1st September 2008 to 31st March 2009, pendente lite and future interest @ 18% per annum and a decree in the sum of Rs. 3,30,900 as damages/mesne profits for the month of April 2009, pendente lite interest and future damages including service tax on Rs. 3,30,900 from the date of filing of the suit till such date that the Defendant vacates and hands over the peaceful possession of the suit property, and a decree of permanent injunction to restrain the Defendant, their directors, agents, servants or any one acting for and on their behalf from sub-letting, assigning or parting with possession of the suit property in favour of the third party and to award costs.
2. The case of the Plaintiff is that he is the owner of the suit property which is an immovable property that is freehold, including the building constructed thereon, by virtue of conveyance deed dated 25th January 2007 executed in his favour by the President of India. The Defendant is the licensee of the built up portion on the basement of the suit property. The Plaintiff states that the suit property was given on licence to the Defendnat by an agreement of leave and licence dated 9th April 2008 for a period of three years with effect from 1st July 2007 on a monthly licence fee of Rs. 1,50,000 payable on or before the seventh day of each month by cheque, after deduction of tax at source. The Defendant was also liable to pay service tax as applicable. The Defendant has paid a sum of Rs. 1,80,000 by way of interest free security deposit which is refundable upon the Defendant to vacate the suit property, after adjustment of all dues towards rent, service tax etc.
3. The Plaintiff states that the suit property was given to the Defendant for industrial purposes, i.e., to run and operate a workshop and servicing of motor cycles under the supervision of Hero Honda Motors Limited. However, it was stipulated in the agreement that the Defendant was to comply with the rules and regulations of the local authorities with regard to the premises. Either party could terminate the agreement by giving three months' notice in writing to the other to vacate the premises. It was further stipulated that if the Government or the authorities prohibited the Defendant from carrying on its operation from the suit premises, the Plaintiff could issue a termination notice.
4. The Plaintiff states that by an order dated 17th April 2008 the Delhi Pollution Control Committee ('DPCC') declared the Defendant's workshop at the suit property as a polluting unit and directed the Defendant to stop all operations from the unit with immediate effect. The Defendant was irregular in the payment of licence fee and has stopped the payment of licence fee altogether with effect from 1st September 2008. It is further stated that the Defendant has not bothered to pay to the Plaintiff despite repeated requests and reminders. A legal notice dated 19th December 2008 was issued by the Plaintiff through his Advocate calling upon the Defendant to vacate and hand over the peaceful possession of the suit property to the Plaintiff by 31st January 2009. The Defendant was also called upon to pay arrears of licence fee with effect from 1st September 2008. Apprehending that the Defendant was attempting to sublet, assign and or part with possession of the suit property in favour of the third party, the present suit was filed seeking the reliefs as mentioned hereinbefore.
5. Summons in the suit and notice on the application, IA No. 6846 of 2009, under Order XXXIX Rules 1 & 2 CPC was issued to the Defendant by the Court on 22nd May 2009. The following interim order was passed by the Court on that date:
"IA No. 6846 of 2009 The Plaintiff in this suit for possession/ejectment of ex licensee/tenant seeks interim relief of restraining the Defendants from parting with possession of the premises.
The Plaintiff has made out a case for grant of ex parte ad interim relief. The Defendant, till the hearing of this application is restrained from parting with possession of the basement admeasuring 2500 sq.ft. and the ground floor admeasuring 2300 sq. ft. in the building at 507, Patparganj Industrial Area, Delhi to any other person.
Issue notice. Reply be filed within four weeks. Rejoinder, if any, thereto be filed within four weeks thereafter.
To be listed for hearing after completion of service, pleadings and admission/denial of documents.
The provisions of Order 39 Rule 3 CPC be completed within one week."
6. Apart from the written statement, a counter claim was also filed by the Defendant. On 17th July 2010 the Court passed the following order:
"1. The learned counsel for the Defendant has stated that the possession of the suit premises bearing plot no. 507, Patparganj Industrial Area, Delhi-92 is not with him as much as the Plaintiff had removed locks of the Defendant and put his own lock. The learned counsel states that the Defendant has filed affidavit along with the keys vide Dy. No. 68787 dated 30.04.2010, however, neither the affidavit nor the keys are on record. The learned counsel for the Defendant to take steps to ensure that the same be brought on record.
2. The learned counsel for the Plaintiff has stated that although he has received an affidavit in this regard, however, the averments as well as the submissions made in this regard are not correct that the Plaintiff had put his own lock on the premises in question. It is further contended by the learned counsel for the Plaintiff that since one of the reliefs which has been claimed by the Plaintiff is possession of the suit premises and as the Defendant himself has admitted that he is not in possession of the premises in question, and therefore, there should be no impediment in appointing a Local Commissioner who will go to the spot and hand over the possession of the premises to the Plaintiff after breaking open the lock. The learned counsel for the Defendant has very fairly stated that he has no objection to this fact subject to the condition that the Local Commissioner shall prepare an inventory of the items lying at the suit premises.
3. In view of the submissions made by the learned counsel, I feel that the justice would be sub served in case the Local Commissioner is appointed who shall visit the premises bearing plot no. 507, Patparganj Industrial Area, Delhi-92 and break open the locks and prepare an inventory of all the items which are found lying there. The said items shall be permitted to be taken by the defendant or his duly authorized representative. In the event of the defendant refusing to remove the machinery or the goods, the learned Local Commissioner shall be free to release the said goods on superdari on furnishing bond in such sum as he may deem fit to such person as he may deem fit. After preparing an inventory and taking the possession the Local Commissioner shall hand over the possession of the suit premises to the plaintiff or his duly authorized representative. The Local Commissioner shall be free to take assistance of the photographer, if felt necessary.
4. Mr. Siddarth Vaid, Mob. No.9891351095 who is present in Court is appointed as the Local Commissioner to visit the suit premises bearing plot no. 507, Patparganj Industrial Area, Delhi-92 on Tuesday at 4.00 P.M. Since the learned counsel for the parties are present, the learned Local Commissioner is not required to give notice to either of the party. The fees of the learned Local Commissioner is fixed at Rs.25,000/- to be borne by the plaintiff. It shall be ultimately apportioned at the time of final disposal of the matter.
5. Dasti."
7. Pursuant to the above order, the Local Commissioner ('LC') prepared a report and filed it in the Court on 21st October 2010. The LC has, in his report, stated that since the Defendant had specifically stated that the premises were not under his lock and key, the lock on the main gate of the premises was physically broken and the locks of the basement, first floor and second floor were also broken. Apart from one CBZ Hero Honda Motorcycle and a water treatment plant, certain other articles were also found and details thereof have been set out in the report. Out of those items the Defendant claimed ownership of two items, i.e., the water treatment plant and one of the old broken iron gates. After obtaining possession of the premises, it was handed over to the Plaintiff and a copy of the acknowledgement of receipt of possession to the Plaintiff has been enclosed with the report of the LC. The two items claimed by the Defendant had been removed by him and rest of the other items had been given to the Plaintiff on superdari basis. The Plaintiff was also given a motorcycle, CBZ Hero Honda, on superdari basis. The Plaintiff has put his own lock on the suit premises.
8. The stand taken in the written statement filed by the Defendant is that the suit is not maintainable since the Plaintiff has failed to give six months' notice of termination of tenancy to the Defendant. It is next stated that the suit is premature since by an agreement dated 9th April 2008 the premises in question was let out to the Defendant by the Plaintiff for a period of three years beginning from 1st July 2007 and expires on 31st June 2010. Then it is alleged that the Plaintiff filed never permitted the Defendant to run its business smoothly. Several false and frivolous complaints were filed to the various government departments and as a result of which the Defendant could not run its business and was compelled to close down its business. Consequently, the Defendant suffered huge losses. The Defendant accordingly, has filed a counter claim to the suit on account of closure of its workshop, the employees were sitting idle and even the Defendant had been paying their salaries till 31st October 2008 and in this account the Defendant suffered loss of Rs. 5,96,335.
9. The case of the Defendant is that the Defendant had been generating revenue of Rs. 13 lakhs per months from the workshop in question. After complaints made by the Plaintiff, it could generate only a sum of Rs. 6 lakh. It is stated that the Defendant has suffered loss of Rs. 7 lakhs per month and it comes to Rs. 49 lakhs for the period, i.e., 1st January 2009 to 31st July 2009. However, the Defendant is restricting its claim to Rs. 25 lakhs. In para 19 of the counter claim, the Defendant submitted that the Plaintiff has to pay a sum of Rs. 1,50,42,266 on account of damages due to inaction and omissions on the part of the Plaintiff, together with interest @ 18% per annum from the date of filing of the present counter claim till its realization.
10. IA No. 11537 of 2009 has been filed by the Plaintiff under Order VII Rule 11 CPC for rejection of the counter claim of the Defendant. Notice was directed to issue in this application on 3rd November 2009. IA No. 11504 of 2009 has been filed by the Plaintiff under Order XV-A (A) and Order XXXIX Rules 10 CPC seeking direction to the Defendant to pay the admitted license fee/occupation charges @ Rs. 1,50,000 per month and service tax thereon @ 10.3% per month with effect from 1st September 2008 till the date of passing of the order on the application. Notice was directed to issue in this application on 7th September 2009.
11. As far as the prayer (a) of the Plaintiff for possession is concerned, it no longer survives as was noted by the Court in its order dated 4th April 2011. Admission/denial of the documents was done by the parties on 24th November 2011.
12. By an order dated 5th May 2012, an application, IA No. 21077 of 2011, filed by the Defendant seeking to place on record additional documents including original reply dated 22nd November 2011 by the DPCC under the Right to Information Act, 2005 ('RTI') along with copies of the applications dated 14th, 24th March 2008, 8th April 2008 and 9th June 2008 by the Plaintiff against the Defendant, was allowed.
13. Thereafter, the Defendant filed an application, IA No. 5959 of 2013, under Order VI Rule 17 CPC seeking to amend the written statement to incorporate the pleas on the basis of the action taken by the DPCC and the averments on account of the consent made by the DPCC it had shut down its unit although the plant and machinery were still lying therein. Amendment is sought to be made to para 3 of the written statement stating that the Defendant was compelled to sign an agreement sometime in the last week of December 2007 under coercion; that it agreed to pay an exorbitant rent of Rs. 1,50,000 per month which was much higher than the market rate. It is now sought to be averred that after the Defendant declined to an increase in the rent to Rs. 3,00,000 per month, the Plaintiff again made various complaints to the DPCC against the Defendant. Para 3 of the written statement it is sought to be amended to state that the papers were signed by the Defendant sometime in the last week of October 2007 and that the Defendant requested the Plaintiff several times to give to it a signed copy of the lease agreement so that the same could be filed along with the application for grant of consent of DPCC but the Plaintiff declined to do so. The amendment seeks to add an averment in the written statement that the Plaintiff wrote to the DPCC on 14th and 24th March 2008 enquiring as to what action they had taken to stop the operation of the workshop of the Defendant. It is sought to be now contended that in view of the threats, coercion and harassment, the Defendant was compelled to pay a higher rent.
14. This Court has heard the submissions of Mr. Ramesh Kumar, learned counsel for the Plaintiff and Mr. Sanat Kumar, learned counsel for the Defendant.
15. The case originally pleaded by the Defendant in the written statement that was filed on 25th July 2009 is very different from the stand now taken in the amended written statement through the application, IA No. 5959 of 2013, under Order VI Rule 17 CPC on 8th April 2013. The case of the Plaintiff in IA No. 11537 of 2009 seeking rejection of the counter claim is that the allegation that the Defendant had to shut down its unit on account of the Plaintiff not giving NOC for running workshop or service station in the premises is false. It is stated that the agreement dated 9th April 2008 itself constitutes such permission and that the said document has been admitted by the Defendant. It is further stated that the Defendant has not produced a single document in support of the allegations made in the counter claim in this regard. Even the order dated 20th June 2008 of the DPCC refusing consent to the Defendant does not state so.
16. The documents placed on record show that a lease deed was entered into between the Plaintiff and the Defendant way back on 2nd July 2001. This was for a period of three years and was only for industrial purpose. At this stage no complaint was made by the Defendant about the Plaintiff not giving it an NOC. The Environmental Engineering Group ('EEG') gave an adequacy report on the "Effluent Treatment Plant for M/s. Auto Needs (I) Pvt. Ltd." in January 2006 itself. On 9th January 2008 the Defendant applied to the DPCC for consent under Water (Prevention andControl of Pollution) Act 1974 ['Water Act'] and under Air (Prevention and Control of Pollution) Act, 1971 ['Air Act']. The Plaintiff was shown as the owner of the premises. Enclosed with the application was the affidavit of the Defendant and details in Form 1. There was nothing stated by the Defendant about the Plaintiff not giving an NOC. Pursuant to the application filed by the Defendant for consent to operate, an inspection of the premises took place by the DPCC on 2nd April 2008. Thereafter a fresh lease agreement was signed by the parties on 9th April 2008. The lease agreement was registered. This belies the case of the Defendant that the Plaintiff made it difficult for the Defendant to operate from the premises. No letter appears to have been written by the Defendant to the Plaintiff about any such alleged inconvenience caused to it.
17. Para 15 of the leave and licence agreement dated 9th April 2008 states that "if any Government Authorities prohibit the Licensee to carry on its operation on any ground whatsoever the Licensor shall have the option to terminate to the agreement of leave and licence by giving notice state above." The Defendant's attempt to now contend by way of the application under Order VI Rule 17 CPC that the said leave and licence agreement was signed due to coercion and pressure brought about by the Plaintiff is an afterthought and is without any basis in any contemporaneous correspondence or document. Such a plea which goes to the root of the matter cannot be sought to be introduced for the first time through an amendment nearly three years after the written statement was originally filed.
18. On 17th April 2008 the DPCC issued directions to the Defendant under Section 31 (A) of the Air Act pointing out that when the unit was inspected on 2nd April 2008 it was found that the Defendant had not installed adequate stack height and acoustic enclosure with DG set of 7.5 KVA; it had been operating its unit since 2001-2002 without obtaining consent to establish/operate and that it had applied for consent to establish only on 10th March 2008. Accordingly, the DPCC directed the Defendant to stop the operation of its unit with immediate effect. Corresponding directions were issued to the electricity distribution company to disconnect the power supply, to the Delhi Jal Board to disconnect the water supply and the Municipal Corporation of Delhi to cancel the licence. Similar directions were issued by the DPCC on the same date under Section 33(A) of the Water Act. In its order it was stated that during the inspection it was observed that the Defendant had installed an effluent treatment plant (ETP) but was the ETP was found non-operational. No dry or wet sludge was seen in the Sludge Drying Beds. Directions were also issued by the DPCC on the same date under Section 5 of the Environment (Protection) Act, 1986. In this order, a reference was made to a public complaint having been received and to the fact that during inspection it was found that no steps had been taken for storage, handling and disposal of hazardous waste under Hazardous Waste (Management and Handling) Rules, 1989 [HWM Rules']. It was stated that the unit has been operating without obtaining authorization under the HWM Rules, 1989. Therefore, the reasons for the DPCC shutting down the unit operated by the Defendant from the premises did not have anything to do with the Plaintiff not giving an NOC to the Defendant. The very basis of the counter claim is therefore, non-existent.
19. It may be noticed at this stage that the Defendant filed W.P. (Civil) No. 3717 of 2008 in this Court seeking quashing of the aforementioned orders of the DPCC. There is no whisper in the entire writ petition about the Plaintiff not giving an NOC and that leading to the passing of the aforementioned orders. On the other hand an undertaking was given to this Court by the Defendant on 14th May 2008 that it would not run the industrial unit and maintain status quo till such time its applications were not considered by the DPCC. Subject to this it was directed that the DPCC would not take any further coercive action against the Defendant till its applications were disposed of. Later on 12th January 2009 in a contempt petition filed by the DPCC, the Defendant informed the Court that it had already written a letter to the DPCC undertaking to close its activities. The Defendant stated before the Court that the alleged breach, if any, of the order dated 14th May 2008 was "neither intentional nor deliberate". The Defendant offered to voluntarily pay a sum of Rs. 5,000 to the Delhi High Court Legal Services Committee.
20. In light of the above facts, it appears that the case now sought to be pleaded by the Defendant through its counter claim and the proposed amendments to the written statement is at variance with the record of what has transpired thus far. The amendment as prayed for or entertaining the counter claim of the Defendant cannot therefore be permitted.
21. Accordingly IA No. 11537 of 2009 filed by the Plaintiff under Order VII Rule 11 CPC is allowed and the counter claim of the Defendant is rejected. IA No. 5959 of 2013 filed by the Defendant under Order VI Rule 17 CPC is dismissed.
IA No. 11504 of 2009
22. Turning to IA No. 11504 of 2009 which is an application by the Plaintiff under Order XV-A and Order XXXIX Rule 10 CPC, it is seen that on 15th April 2013 the following order was passed therein by the Court:
"IA No. 11504 of 2009 This is an application filed by the Plaintiff under Order XV-A (A) and Order XXXIX Rule 10 CPC.
As far as the rate of licence fee/rent is concerned, there is no dispute that with effect from 1st July 2007 licence fee/rent was Rs. 1,50,000 per month.
The Plaintiff in this suit for possession now claims that the Defendant has vacated the suit premises in July 2010 while Defendant is claiming that the Plaintiff had forcibly taken over the possession of the suit premises in September 2009.
In my view, without going into these allegations and counter allegations at this stage, it would be appropriate if the Defendant is directed to deposit in Court the license fee/rent calculated @ Rs. 1,50,000 per month from 1st September 2008 till September 2009 which deposit, of course, would be without prejudice to the Defendant's contentions made in the existing written statement as well as in the amendment application (being IA No. 5959 of 2013) that it is not liable to make any payment in view of its counter claim against the Plaintiff.
Let the Defendant make the deposit in Court in the name of the Registrar General within four weeks. Upon that deposit being made the same shall be kept in a fixed deposit in a bank initially for a period of six months.
After this deposit is made the present application shall be taken up for further hearing to decide whether Plaintiff is entitled to disbursement of the deposited amount or not.
Renotify on 4th July 2013."
23. It appears that the said amount is yet to be deposited by the Defendant. The Defendant is directed, as a last opportunity, to comply with the above order within two weeks from today. The further hearing of this application will be taken up thereafter.
24. List on 3rd September 2013.
CS (OS) No. 939 of 2009
25. List for framing of issues on 20th November 2013.
S. MURALIDHAR, J.
JULY 22, 2013 Rk
No comments:
Post a Comment