1 IN THE COURT OF SH. BHUPESH KUMAR : ADDL. DISTRICT JUDGE - 06 : WEST DISTRICT : DELHI. In matter of : Suit no. 152/06 M/s Toll (India) Logistics Pvt. Ltd. 262, 1st floor, Phase III, Okhla Industrial Estate, New Delhi. Plaintiff versus 1. Mrs. [ENTITY] W/o Mr. [ENTITY], House no. 2, Basant Nagar, P.O. Vasant Vihar, New Delhi. 2. Mrs. [ENTITY], W/o Mr. Mahesh Gaur, House no. 2, Basant Nagar, P.O. Vasant Vihar, New Delhi. Defendants Date of Institution : 29.11.06 Date of Arguments: 23.01.10 Date of Judgment : 28.01.10 JUDGMENT
1. The plaintiff has filed the present suit U/[SECTION] [ACT] for recovery of Rs. 8,80,000/- from Contd
the defendants. The brief facts of the matter as emerged from the plaint are that the plaintiff company is a registered company under the [ACT]. The plaintiff company carries out business of integrated logistic services and forwarding services. The present suit has been filed by Sh. [ENTITY], Regional Manager, Northern Region of plaintiff company who has been duly authorized by the Managing Director of plaintiff company vide special power of attorney dt. 2.9.06 to file and institute the present suit and to sign and verify the pleadings. Upon representations made by defendants that they are absolute owner of the 2000 sq. ft. of premises no. 91/8, 2nd and 3rd floor Kapashera main, Bijwasan Road, New Delhi-37, the plaintiff expressed his desire for taking the suit property on lease. A lease agreement dt. 1.1.06 in this regard was executed between the plaintiff and Contd
defendants. As per lease agreement, inter alia, it was settled that the period of lease would be for five years commencing from 1.1.06 . As per clause 2 of the lease agreement the lease rent was agreed @ Rs. 80,000/- per month subject to deduction of TDS and other deductions. It was also settled that Rs. 5000/- per month would be paid by the plaintiff for extra parking space of about 1500 sq. ft. As per clause 3 of the agreement, the plaintiff was required to pay a sum of Rs. 4,80,000/- as six months rent in advance and after deducting the TDS @ 15.3% and after deducting the TDS at said rate, the remaining sum of 4,06,560/- was paid to the defendants vide cheque nos. 562386 and 562317 dt. 23.2.06 drawn at ICICI Bank. As per clause 3 of the lease agreement, the plaintiff was required to pay security amount of Rs. 4,80,000/- with understanding that the same would be refunded on the expiry /termination of the lease.
Contd
The said amount was paid in two installment of Rs. 2,50,000/- and Rs. 2,30,000/- vide cheque no. 132338 and 132339 respectively dt. 15.12.05.
On 27.2.06 the plaintiff has taken the possession of the premises and started using the premises as its regional office. Subsequent to the occupation of the said premises, Hon'ble High Court passed the order 'prohibiting commercial activities in the Lal Dora Area'. A notice no. 1590/EE (B) /NZ/2006 dt. 8.3.06 was issued by the Assistant Engineer, MCD, Najafgarh Zone U/[SECTION] of [ACT] to owner / occupier of the premises in question asking them to vacate the premises within two days failing which the demolition of unauthorized construction was to be carried out U/[SECTION] of [ACT]. Under these circumstances the plaintiff vacated the premises on 10.3.06 and on the same day the demolition of the premises was carried out by Contd
As per clause 8B of the lease agreement the defendant was required to provide alternate premises. But since the alternative premises offered was also fallen under the Lal Dora area, therefore, it was not possible for the plaintiff to shift its business as stipulated under the clause 8B of the lease agreement. Hence, the lease agreement stood terminated. Since the premises was not enjoyed by the plaintiff, therefore, the defendants were required to refund the security amount and balance advance rent. The plaintiff requested the defendant on personal meetings and on phone to refund the security amount of Rs. 4.80 lac and also to return the advance rent lying with them amounting to Rs. 3,38,000/- @ Rs. 67,760/- per month but the same was not returned. The plaintiff issued a registered legal notice dt. 28.4.06 through his counsel demanding Contd
the payment of Rs. 8,18,800/- (Rs. 4,80,000/- security amount and Rs. 3,38,800/- towards balance advance rent for five months). Despite the receipt of notice, the defendant has not paid the same. In the notice dt. 28.4.06 the plaintiff made bonafide mistake due to inadequate information on amount of TDS as the plaintiff was under the impression that the plaintiff is entitled to get the amount of residual rent only after deducting the TDS amount. However, after discussing the matter with tax expert, the plaintiff came to know that the plaintiff is entitled for refund of full amount without any deduction towards TDS. The plaintiff brought this fact to the notice of the defendants in its legal notice dt. 29.9.06 and also brought corrigendum to the relevant para of the earlier notice dt. 28.4.06. On receipt of notice dt. 29.6.06, the defendant replied the same vide reply dt. 10.10.06. In reply, the Contd
receipt of notice dt. 28.4.06 was denied. Further in reply the defendants instead of accepting their liability, made false counter claim of Rs. 18,53,600/- and asked the plaintiff to return of furniture, fixtures, arrears of lease rent of Rs. 80,000/- per month and further lease rent @ Rs. 80,000/- per month. On the basis of these submissions, prayer was made to pass a decree of 8,80,000/- in favor of the plaintiff alongwith interest, pendentelite and future interest @ 24% per annum till its realization.
2. The notice for appearance were issued to both defendants and both defendants filed the appearance in stipulated period. Thereafter summons for judgment were issued against the defendants. The defendants filed application seeking leave to defend alongwith their affidavits. The application seeking leave to defend was Contd
allowed by my Ld. Predecessor Court on 26.9.07. Against the said order the plaintiff approached the Hon'ble High Court, but without any success.
Thereafter, joint written statement was filed by both the defendants wherein, the defendants have taken preliminary objections that as per terms and conditions of lease agreement dt. 1.1.06 nothing is to be paid by the defendant to the plaintiff and to contrary the plaintiff company is required to pay a sum of Rs. 17,29,077/- alongwith interest @ 15% p.a. to the defendants as set out in the counter claim. The plaintiff company has violated the terms and condition of the lease agreement. The lease of premises in question was fixed for five years commenced from 1.1.06 @ Rs. 80,000/- per month subject to deduction of TDS as per law. As per terms and conditions of agreement clause 4, the defendants provided fully furnished office to Contd
the plaintiff company included office furniture, fixtures, fittings, cabins, air conditioner, power back up, electrical fittings and other necessary equipments on which the defendants spent Rs. 18,53,600/-. The said furniture, fixtures, genset etc. were taken away by the plaintiff company and did not return the same to the defendants for which the defendants have filed the counter claim.
On merits, the fact that the plaintiff is a registered company or that the suit has been filed by authorized person has not been denied. The fact of ownership of defendants over the property in question or execution of lease agreement dt. 1.1.06, the rate of rent @ Rs. 80,000/- per month, payment of Rs. 4.80 lacs as security amount and the payment of advance rent for six months amounting to Rs. 4.80 lac have also not been denied. However, it was submitted that plaintiff Contd
company was already aware of the orders of Hon'ble High Court before taking the possession of the premises in question and inspite of knowing this fact the plaintiff chosen to take the premises on rent. It is evident from para 8B of lease agreement where it is mentioned that in the event of any action taken by authorities, the defendant would provide suitable alternative premises situated at Khasra No. 336(0-4), Lal Dora land situated in village Bijwasan Main Road, New Delhi-61 with all possible infrastructure from the existing premises within one month from such demolition. The issuing of notice of demolition was not denied. However, on this score it was submitted that it does not alter the contractual liabilities and obligation on the parties who were already conscious of the situation before taking over the premises from the defendant. After the demolition of the Contd
existing office the defendants offered the plaintiff company an alternative office accommodation but the plaintiff company did not occupy the same. The receipt of notice dt. 28.4.06 was denied. It was submitted that the notice dt. 29.9.06 issued by plaintiff company is illegal. The defendants are not liable to pay any amount to the plaintiff company. On the other hand the defendants are entitled to recover a sum of Rs. 17,29,077/- from the plaintiff for which they have filed a counter claim with written statement. Inter alia, on the basis of these submissions prayer was made to dismiss the suit of the plaintiff company.
3. In the counter claim the defendants have submitted to the effect that vide lease agreement dt. 1.1.06 the property admeasuring 2000 sq. ft, on 2nd and 3rd floor of building situated at 91/8, Contd
Kapashera Main, Bijwasan Road, New Delhi was given on rent to the plaintiff by defendants vide lease agreement dt. 1.1.06 @ Rs. 80,000/- per month subject to deduction of TDS as per law with further payment of Rs. 5000/- per month for extra parking space provided to the plaintiff company. As per clause 4 of the lease agreement the defendants were required to provide fully furnished office to the plaintiff company which include the office furniture, fixtures, air conditioners, power back up etc. The defendants spent Rs. 18,53,600/- (Rs. 1.44 lac on false ceiling, Rs. 2.23 lac spent on air conditioner, Rs. 4,16,250/- paid for generator, Rs. 17,000/- spent on installation of generator, Rs. 24,750/- spent on purchase of stabilizers, Rs. 5977 spent on lighting, and Rs. 9,02,100/- spent on wooden works, furniture etc.). Even the electricity bill was not cleared by the plaintiff company. Vide para 8B of Contd
the agreement, in the event of any action taken for demolition of the premises, the defendant would provide suitable alternate premises situated in Khasra no. 336(0-4), lal Dora land situated in village Bijwasan main road, New Delhi-61. After demolition of the existing office, the defendants offered the plaintiff company an alternate office accommodation, but the plaintiff did not occupy the same. Since the plaintiff company vacated the premises before three years i.e. lock-in period, the security deposit of the plaintiff company stabds forfeited. The plaintiff issued legal notice dt. 29.9.06 calling upon the defendants to pay a sum of Rs. 8,80,000/- towards security amount and advance rent. The said demands are contrary to the terms and conditions of the agreement. The said notice was duly replied vide reply dt. 10.10.06 calling upon the plaintiff to pay a sum of Rs. 18,53,600/-, Contd
besides the furniture, fixtures as stated above and the arrears of lease rent @ Rs. 80,000/- and future lease rent @ Rs. 80,000/- per month to the defendants. But the plaintiff company has failed to comply with the legal notice. On the basis of these submissions prayer was made to pass a decree of Rs. 17,29,077/- in favor of the defendants and against the plaintiff company alongwith pendentilite @ 15%.
4. Replication to written statement was filed by the plaintiff wherein the averments made in written statement was generally denied and those made in the plaint have been reiterated and reaffirmed.
5. Written statement was also filed by the plaintiff to the counter claimed filed by the defendants, wherein the preliminary objection Contd
was taken that the defendant has not approached the court with clean hands. In the counter claim the defendants have not disclosed any cause of action, hence, the claim is liable to be dismissed.
On merits, it was submitted that the defedants have raise false counter claim of Rs. 18,53,600/- besides return of fixtures and furniture, arrears of rent, future rent etc. On this score it was submitted that on 10.10.06 the defendant for the first time replied to the legal notice and taken this false plea. The plaintiff had vacated the premises on 10.3.06 but the defendant has not raised any plea for seven months and it is surprising that a person who is entitled for huge amount of a sum of Rs. 18,53,600/- would not take any action. The terms mentioned in the clause 8B of the agreement are normal and in routine. The plaintiff never anticipated that such en-mass special demolition Contd
drive would be launched by the concerned authorities on the direction of Hon'ble High Court. It was a peculiar and when with the directions of Hon'ble High Court the commercial activities in the entire Lal Doar area became illegal then in these circumstances it was not wise for the plaintiff to shift to unauthorize place which again fall within the Lal Dora Area. In these circumstances the plaintiff was forced to take another premises on rent. It was denied that the defendants made any offer for suitable alternate premises. In fact the defendants were not in position to provide suitable alternate premises in a span of two days after receipt of notice of demolition. Regarding lock-in period it was submitted that since the agreement became non-existent, the relevant terms of the contract could not be performed. Inter alia, on the basis of these submissions prayer was made to dismiss Contd
the counter claim.
6. Replication to written statement on counter claim was also filed by the defendants wherein the averments made in the written statement were generally denied and those made in the counter claim have been reiterated and reaffirmed.
7. On the basis of pleadings of parties following issues were framed by my Ld. Predecessor Court on 10.9.08 :-
1. Whether the present suit filed on behalf of the plaintiff is without any cause of action?
2. Whether the plaintiff is entitled to recover the suit amount, as prayed for? OPP
3. Whether the plaintiff is entitled to any interest? if yes, at what rate and for what Contd
period? OPP
4. Relief.
ISSUES QUA COUNTER CLAIM
1. Whether the counter claim of the defendant does not disclose any cause of action? OPP
2. Whether the defendant / counter claimant is entitled to recover the amount, as prayed for in the counter claim? OPD
3. Whether the defendant/counter claimant as entitled to any interest? If yes, at what rate and for what period? OPD
8. The plaintiff has examined Sh. [ENTITY], Account Officer of plaintiff company as PW1 who deposed on similar lines to that of plaint and has brought on record the Contd
documents Ex. PW1/1 to Ex.PW1/15.
9. The defendants have also examined Sh [ENTITY], husband of defendant no. 1 as DW1 who brought on record the documents i.e. bill dated 4.1.06 as Ex. DW1/1, challan cum gate pass dt. 20.2.06 Ex. DW1/5, bill dt. 15.1.06 Ex. DW1/6, reply dt. 10.10.06 Ex. DW1/7, postal receipt Ex. DW1/8, courier receipt Ex. DW1/9, acknowledgment card Ex. DW1/10 and courier P.O.D. Ex. DW1/11. Sh. [ENTITY], as DW2, Sh. [ENTITY] as DW3, Sh. [ENTITY], proprietor of M/s Bharat Power Engineering as DW4; Sh. [ENTITY] as DW5; Smt. [ENTITY] as DW6 and Sh. [ENTITY] as DW7. All the defendant witnesses were cross examined at length. DE was closed.
10. I have heard the arguments of ld. Counsel Contd
for both parties besides going through the material on record carefully.
11. My issuewise findings qua the main suit are as under :
ISSUE NO. 1 : Whether the present suit filed on behalf of the plaintiff is without any cause of action? OPD The onus to prove this issue is upon the defendants. Ld. counsel for the defendant has vehemently argued that the plaintiff has based his entire claim on the lease agreement dt. 1.1.06 Ex. PW1/1. But as per [SECTION] of [ACT], the said document is compulsorily required to be registered. But the said document has not been registered, hence, in view of provisions of [SECTION] of [ACT] the said document cannot be read. Therefore, the whole claim of the plaintiff is Contd
without any cause of action.
On the other hand Ld. counsel for plaintiff submitted that though the unregistered document compulsorily required to be registered under the [ACT], the document cannot be read in evidence but the said document can be used for any collatoral transaction in view of proviso of the [SECTION] of [ACT].
Heard on this score and material perused. The plaintiff has filed the present suit for recovery of the amount given in advance to the defendants. Before proceeding ahead here it is necessary to reproduce the [SECTION] of [ACT] :-
[SECTION] - Effect of non-registration of documents required to be registered.
- No document required by [SECTION] [or by any provision of the [ACT],] to be registered Contd
shall-
a)affect any immovable property comprised therein, or
b) confer any power to adopt, or
c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered :
[Provided that or as evidence of any collatoral transaction not required to be effected by registered instrument.] The bare reading of proviso of [SECTION] of [ACT], it reveals that for any collatoral transaction for which the registration of the document is not required, the document can be read in evidence. The plaintiff has not prayed for any effect on the immovable property in question but has filed the suit for recovery of advance rent as well as security amount as Contd
mentioned in Ex. PW1/1.
In case [PRECEDENT], it was, inter alia, hold by Hon'ble High Court that purpose of lease (nature of tenants possession) being only are collatoral mater and unregistered lease can be used to ascertaining it.
In case [PRECEDENT], it was inter alia, hold that document compulsorily registrable not registered can be admitted in evidence for collatoral purpose showing nature of the possession.
In the present matter the plaintiff has claimed the advance payment of rent and security amount only and has not claimed any right in the immovable property. In these circumstances claiming the advance payment of rent and security amount is found to be a collatoral act for which no registration is Contd
required.
Hence, in these eventualities, I do not find any substance in the contention of Ld. counsel for the defendant suit is without any cause of action. The issue is accordingly decided in favor of the plaintiff and against the defendant.
12. ISSUE NO. 2 : Whether the plaintiff is entitled to recover the suit amount, as prayed for? OPP The onus to prove this issue is upon the plaintiff. Ld. counsel for plaintiff submitted that the plaintiff in support of its contention has examined Sh. [ENTITY], Account Officer who has brought on record original lease agreement dt. 1.1.06 as Ex. PW1/1 and deposed to the effect that a sum of Rs. 4,80,000/- was paid to the defendants as security amount which was refundable on the expiry/termination of the lease Contd
and a sum of Rs. 4,80,000/- was paid as advance rent for six months to the defendants after deducting the TDS as per law vide receipt Ex. PW1/2. The plaintiff took the possession of the premises on 27.2.06. But on 8.3.06 a notice was issued by Asst. Engineer, MCD, Najafgarh Zone, U/[SECTION] of [ACT] to vacate the premises within two days otherwise demolition of unauthorized construction would be carried out u/[SECTION] of [ACT] and thereafter the premises was demolished. Since the property has not been used, therefore, the plaintiff is entitled for refund of security amount of Rs. 4.80 lac and a sum of Rs. 4.00 lac as advance of balance five months including TDS paid by plaintiff.
On the other hand, Ld. counsel for the defendant has vehemently argued that the plaintiff himself has violated the terms and conditions of the agreement Ex. PW1/1. The Contd
lease agreement Ex. PW1/1 was for five years and at the time of execution of that agreement, the plaintiff was well aware of the direction of the Hon'ble High Court vide which the commercial activities carried out within Lal Dora area were termed as illegal were liable to be demolished. Despite knowing this fact, the plaintiff entered into agreement. Therefore, the plaintiff cannot take the plea that he was not having the knowledge of the said orders of Hon'ble High Court and cannot be allowed to say that under these eventualities the lease agreement became non existent. This fact even corroborate from the clause 8B of the lease agreement Ex. PW1/1, that in case of demolition, the defendants were required to provide suitable alternative premises in Khasra no. 336(0-4), lal Dora land situated in village Bijwasan main road, New Delhi-61. But the plaintiff after vacating the leased property, Contd
refused to shift his business to alternative premises provided by the defendants. Therefore, the plaintiff himself has violated the terms of the lease agreement for which he is not entitled for refund of any security amount which is liable to be forfeited as the lock-in period available to the plaintiff was for three years. It was also submitted that the plaintiff is not entitled for any advance rent.
13. I have heard the arguments of ld. counsel for both parties besides going through the material on record available.
As per lease agreement Ex. PW1/1, the duration of the lease was for five years commencing from 1.1.06. It is not denied that the plaintiff took the possession of the premises on 27.2.06. But here first question arises whether the plaintiff is entitled to pay the rent w.e.f. 1.1.06 on Contd
the day when the lease was executed for five years or w.e.f. 27.2.06 on the day when the actual possession of the premises was taken by the plaintiff. In this regard it is found that the lease agreement Ex. PW1/1 was for five years commencing from 1.1.06. There is nothing on record which suggest that the premises was not available for the possession of the plaintiff. Therefore, in view of the terms of lease agreement Ex. PW1/1, it is found that the plaintiff is liable to pay rent w.e.f. 1.1.06 when the lease agreement commenced for five years.
Further, the contention of Ld. counsel for the defendant is that the plaintiff was aware of the fact that demolition drive was going on in the vicinity with the directions of Hon'ble High Court but even then the plaintiff entered into lease agreement Ex. PW1/1. Therefore, the plaintiff cannot take plea that the lease agreement Ex.
Contd
PW1/1 became non existent on receipt of notice from MCD for vacating the premises. Further it was submitted that as per lease agreement Ex. PW1/1 in the event of any demolition, alternative premises was to arrange by the defendants and after the plaintiff vacated the premises, alternative premises was offered to the plaintiff company but the plaintiff has refused to occupy the same.
In this regard it is found that the lease agreement Ex. PW1/1was executed at Chennai. Apparently the plaintiff was going to pay huge amount for security and for rent of the premises. The pleadings of the defendants transpires that they were fully aware of the demolition drive. Now the question arises if the defendant was aware of this fact that the demolition drive was going on in the vicinity then why they entered into lease agreement Ex. PW1/1 and accepted the Contd
advance rent and security deposit. It shows that in these eventualities the defendants were going to be benefited and not the plaintiff company.
In case [PRECEDENT], Hon'ble High Court has inter alia, hold that no act can be interpreted in a manner, that it contravenes public policy. The public policy is that everybody should get his due and nobody should be paid more than his dues. The law cannot be interpreted in a manner so to allow unjust enrichment.
In the present matter as discussed above, the defendants were duty bound not to enter into any such agreement for which only they were going to be benefited and in all eventualities considering the, the then circumstances, the plaintiff had to suffer the loss. Therefore, under the garb of the plea that the plaintiff was having Contd
knowledge of demolition drive the defendants cannot be benefited.
Further the defendants also cannot be benefited with mentioning of the term to provide alternate premises in case the main premises is demolished as mentioned in the lease agreement Ex. PW1/1 because there is nothing in the said lease agreement which suggest that the plaintiff was bound to shift his office to alternate premises. Further there is nothing in the lease agreement Ex. PW1/1 that on refusal of the plaintiff company to shift his office to alternate premises provided by the defendant, the security amount paid by the plaintiff would be forfeited. Further, the alternate premises offered in the lease agreement Ex. PW1/1 was also situated in Lal Dora Area of Village Kapashera where the demolition drive was going on. In these circumstances the plaintiff cannot take such risk Contd
to shift his business again to the premises where the commercial activities were prohibited. The plaintiff had no other option except to leave the premises and to arrange some other suitable space for his office/business. Hence, the lease agreement Ex. PW1/1 was found to be validly terminated when premises was vacated on 10.3.06 on receipt of notice dt. 8.3.06 of MCD vide which occupier/owner was stated to be directed to vacate the premises within two days. Hence, the defendants are required to repay the security amount of a sum of Rs. 4,80,000/- to the plaintiff received in view of agreement Ex. PW1/1.
14. Regarding the advance rent, it is found that the rate of rent was Rs. 80,000/- per month and the plaintiff was required to pay advance rent Contd
for six months to the tune of Rs. 4,80,000/-. The fact that after deducting a sum of Rs. 73,440/- as TDS the advance rent of Rs. 4,06,560/- for six month was paid has not been denied. Further, I find substance in the contentions of Ld. counsel for plaintiff that the plaintiff is entitled for refund of TDS when the lease was validly terminated. Moreover, as discussed earlier the lease agreement Ex. PW1/1 was executed and effective from 1.1.06 whereas the premises was actually vacated as per material on record on 10.3.06. Therefore, for the period of two months and 10 days the plaintiff is entitled to pay the rent which comes to Rs. 1.86 lac approximately. After deducting the amount of Rs. 1.86 lac from Rs. 4.80 lacs i.e. advance rent, the plaintiff is entitled for recovery of a sum of Rs. 2.94 lac paid as advance rent.
Contd
15. ISSUE NO. 3 : Whether the plaintiff is entitled to any interest? if yes, at what rate and for what period? OPP The plaintiff has claimed the interest @ 24% per annum. However, the same is found to be on higher side. Considering the facts and circumstances interest @ 8% p.a. would be sufficient to meet the ends of justice.
16. Relief.
In view of the above discussions, the suit of the plaintiff is decreed for a sum of Rs. 7,74,000/- with interest @ 8% p.a. from the date of filing of the suit till its realization with cost of the suit.
17. My issue wise findings qua the issues framed for counter claim are as under :-
Considering the facts and circumstances Contd
of the case, issue no. 2 & 3 are taken up first. ISSUE NO. 2 : Whether the defendant / counter claimant is entitled to recover the amount, as prayed for in the counter claim? OPD The onus to prove this issue was upon the defendant. Ld. counsel for defendant submitted that as per clause 4 of the agreement the defendants were required to provide the fully furnished premises to the lessor. To meet this requirement the defendants have incurred expenses of Rs. 18,53,600/- on furniture, fixtures etc. The defendants have spent this huge amount as per agreement. But when the plaintiff vacated the said premises, the said items were not returned to defendants. Therefore, the defendants are entitled for recovery of amount of such items from the plaintiff.
On the other hand Ld. counsel for Contd
plaintiff has submitted that the defendants are not entitled for recovery of any amount from the plaintiff as the plaintiff has not removed any such articles from the premises in question at the time when the plaintiff vacated the same.
Heard. Material perused. The plea of the defendants on this regard is two folded. First is in regard to purchase of the items for the purpose of furnishing the premises. The defendants have examined Sh. [ENTITY], husband of defendant no. 1 as DW1, Sh. [ENTITY] interior decorator who spent Rs. 9,02,100/- on interior decoration of the premises; Sh. [ENTITY] DW3 who has fixed false ceiling to the tune of Rs. 1.44 lacs; DW4 [ENTITY] who has installed the generator set and charges of Rs. 17,000/- were paid to him for the same; DW5 [ENTITY] who has supplied stabilizers; DW6 Smt. [ENTITY] defendant no. 1 and DW7 [ENTITY] who has Contd
supplied air conditioner at the premises in question.
Now the question arises if the plea of the defendant is accepted that the defendants have invested said amount then the plaintiff is entitled to pay for the same to the defendants. For this purpose lease agreement Ex. PW1/1 is perused carefully. Admittedly, it has been mentioned in the said agreement that the lessor would provide fully furnished office including furniture, fixtures etc to the lessee and for this puropse the lessor would use the advance rent given by lessee. It was the condition in the said lease agreement Ex. PW1/1that the lessor would used the advance rent but there is nothing in the agreement which suggest that cost of the items were to be bear by the lessor which would be recoverable by lessor from the lessee. Therefore, as per the terms of lease agreement Ex. PW1/1, it was for the Contd
defendants to provide the furnished premises. Even further the lease agreement was terminated on genuine ground as came earlier. Hence, the plaintiff was left with no option except to vacate the premises. Therefore, even if the defendants have borne the expenses on furniture, fixtures etc. he cannot claim the same from the plaintiff.
18. The second plea of the defendants is that the plaintiff has taken the items when the plaintiff vacated the premises. In this regard the evidence of witnesses perused carefully. Regarding the evidence of DW1 [ENTITY] it has been submitted by Ld. counsel for plaintiff that he deposed only as husband of defendant no. 1 but he has not appeared as attorney of defendant no.
1. Neither there is any document of record if executed between this witness and the plaintiff. Therefore, the evidence of this witness cannot be Contd
read in the evidence. On this score, admittedly, this witness is not authorized representative of defendant nor there is any document executed between this witness or plaintiff. But there is nothing in the [ACT] which prohibit a person to appear in the witness box in the independent capacity. Therefore, there is no ground to brush aside the testimony of DW1 in this manner. However, it does not mean that evidence of DW1 is liable to be accepted without any proper scrutiny. Hence, the evidence of this witness is scrutinized carefully in the light of other material available on record. Here it is necessary to reproduce the part of evidence of DW1 in this regard which is as under :
"I have not lodged any police complaint against the plaintiff for removing the ACs, furnitures and fixtures etc. at the time of vacating the premises. Vol. no FIR was Contd
lodged as the plaintiff removed all these items with our consent. I have not issued any legal notice to the plaintiff for furnitures fixtures and the amount claimed in the counter claim immediately after the plaintiff left the premises."
On the other hand evidence of DW6 who is party to the suit is perused. This witness has submitted to the effect that "It is correct that I have no personal knowledge about the present matter and only my husband was dealing in the present matter with the plaintiff. The present case was filed as generator, AC, furniture were stolen."
1. From the careful perusal of testimony of DW1 & DW6, it is found that there is major contradiction between the evidence of both these witnesses as DW1 on one hand stated that the Contd
plaintiff has removed all the items with their consent whereas DW6 stated that generator set and ACs etc. were stolen.
As per defendants, this fact is root cause of the matter. Therefore, in these eventualities the contradiction goes to the root of the matter which make the testimony of both these witnesses unworthy of any credit. Even otherwise as matter of record the defendants have not raised any objection by filing complaint to the police or any other authority or by issuing notice to the plaintiff company regarding removal of the said items by them. Considering the entire facts and circumstances, it seems that this plea has been taken after thought only after receipt of notice dt. 29.9.06. Therefore, the defendants are not entitled for any amount as claimed. This issue is accordingly decided in favor of the plaintiff and against the defendants.
Contd
2. ISSUE NO. 3 : Whether the defendant/counter claimant as entitled to any interest? If yes, at what rate and for what period? OPD As discussed above, it has been already held that defendants are not entitled for any amount as claimed in the counter claim. Hence, the question of granting any interest does not arise.
3. ISSUE NO. 1 : Whether the counter claim of the defendant does not disclose any cause of action? OPP The onus to prove this issue is upon the plaintiff. As discussed in issued no. 2, earlier that the defendants are not entitled for any suit amount or interest. In these circumstances, it is found that there is no cause of action available to the defendants to file the counter claim.
Contd
4. In view of aforesaid discussion, the suit of the plaintiff stands decreed and the counter claim as filed by the defendants has been rejected. Decree sheet be prepared accordingly. File be consigned to record room.
([ENTITY]) ADJ-06/West/Delhi 28.1.10 (Announced in open court) Contd