IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.8.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.257 of 2009 and M.P.No.1 of 2009 HCL Technologies Ltd., No.30, Ethiraj Salai, Chennai – 600 105 .. Appellant/Plaintiff Vs. Asfa Offset Printers Private Limited No.16/32, ABM Avenue, Boat Club Road, R.A.Puram, Chennai – 600 028. .. Respondent/Defendant The appeal has been preferred under Order XXXVI Rule 9 of O.S. Rules against the order dated 14.8.2009 passed by the learned Single Judge in Application No. 254 of 2009 in C.S.No.253 of 2009 on the file of this Court. For Appellant : Mr.R.Krishnamoorthy, Senior Counsel for Mr.P.B.Ramanujam For Respondent : Mr.P.S.Raman, Senior Counsel for Ms.Pushpa Menon JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the order passed by the learned single Judge of this Court made in O.A.No.254 of 2009 in C.S.No.253 of 2009, a suit for permanent injunction. 2. Pending the suit, the respondent/plaintiff filed two applications, one for interim injunction restraining the respondents from using the two basements, first and second floors amounting to 10,320 sq.ft. which was earmarked as car park as described in the schedule thereunder for any purpose other than for car parking and the other application for appointment of Advocate Commissioner to inspect the property and file a report. In support of the applications, affidavits were filed and on appearance the https://hcservices.ecourts.gov.in/hcservices/ appellant/respondent filed the counter affidavit. The learned single Judge, on scrutiny of the materials available and after hearing the submissions made, granted interim injunction s asked for, pending the suit. Apart from that, the learned single Judge granted interim mandatory injunction for removal of permanent/semi permanent structure which were found in the two basements and the first and second floors and restore it as a car parking forthwith, while the learned single Judge dismissed the application for appointment of Commissioner for inspection. Aggrieved over the same, this appeal has been brought forth by the defendant/respondent. 3. The case of the plaintiff before the trial Court was that the plaintiff company promoted and acquired the property at No.30, Ethiraj Salai, formerly known as Commander-in-Chief Road, Egmore, admeasuring 50,000 sq.ft., the building consisting of 11 floors including ground floor and 2 basements. A lease agreement was entered into between the plaintiff and the defendant on 9.2.2003. The basements and a portion of the first and second floor are earmarked for usage as car parking as per the approved plan. The defendant entered into lease agreement with the owner of the building and as per the agreement, the rent was not for the basement. No additional charges were also levied for the car parking from the defendant by the erstwhile owners of the property. The lease deed was prescribed for 49,570 sq.ft. and different rates were fixed for different periods and the rent was for the commercial area. The property was purchased by the plaintiff company on 23.12.2004 by acquiring 100% of the equity shares of the Company and thereafter, he has become the owner of the property. The plaintiff had taken loan in HDFC. A letter was addressed to the defendant to atone the lease in favour of the new owner. Since the plaintiff had taken loan from HDFC and bound themselves to pay the future lease rental towards the loan amount, the defendant was directed to pay rental directly to HDFC as per the loan agreement. This was agreed by the defendant by letter dated 11.1.2005. The said agreement was for a period of six years and it comes to end on 31.1.2009. It came to the notice that the basement, first and second floors were to be used only for car parking but no rent was charged by erstwhile owner and it was also noticed permanent semi structure were also put in the basement area and also in the first and second floors and the defendant was using the same for the purpose other than car parking. It is also used by the defendant as canteen and training rooms in the car parking area and two car lifts which were provided were put to disuse. Under such circumstances, a communication was addressed on 22.1.2007 calling upon them to discontinue the usage of two basements, first and second floors of the building which was not done so. Since the demands made and thereafter, the reminders made were not met by the defendant, there arose necessity for filing a suit for the relief therein. Pending the suit, there arose a necessity for restraining the defendants from further using the property unlawfully. Hence, an application was filed for interim injunction and also for appointment of Advocate Commissioner to make inspection of the property and file a report. https://hcservices.ecourts.gov.in/hcservices/ 4. The application was resisted by the defendant stating that there was an agreement which was entered into between the parties with the original owner in which the plaintiff was an affirming party. The agreement dated 9.2.3003 would clearly indicate that it did not prohibit the use of the basements or the first and second floors for the training centre and canteen. It has been used for nearly six years that too, from 2004 onwards, from the time of purchase by the plaintiff. No objections were raised at any point of time. It was only an attempt made by the plaintiff to enhance the rent which did not fructify. Apart from that, the fair rent petition was also filed in R.C.O.P.No.208 of 2009. Under such circumstances, the applications had been brought forth vexatiously and both the applications have got to be dismissed. 5. The learned single Judge after hearing both sides and looking into the materials available, passed an order granting interim injunction and also interim mandatory injunction as referred to above and dismissed the application for appointment of Advocate Commissioner. 6. Advancing the arguments on behalf of the appellant, Mr.R.Krishnamoorthy, the learned senior counsel would submit that it is true that the defendant was the tenant under the erstwhile owner and there was an agreement which was entered into on 9.2.2003. A specific clause in the schedule of property would clearly indicate the basements, first and second floors. Under such circumstances, the property in question was a part and parcel of the property which was leased out. Added further learned counsel, in the instant case, the rent was also fixed therefor and it referred that the rent was fixed for the property found in the schedule. Apart from this, from the time of agreement from 2003 and also from 2004, when the plaintiff/respondent got possession of the property for a period nearly 5 years, these structures put up by the defendant were actually in usage and it is also used for the purpose of running a canteen and training centre. Under such circumstances, it is too late for the respondent/plaintiff to come forward with such a complaint. It was only an attempt by the plaintiff to raise the rent which he could not do so. Under such circumstances, the interim injunction was not called for. Added further learned counsel, when the suit was filed only for permanent injunction, it is a matter of surprise to note that the learned single Judge has granted interim mandatory injunction. Hence, the order of the learned single Judge has got to be set aside. 7. The Court heard Mr.P.S.Raman, the learned senior counsel appearing for the respondent who putforth the same contention which were raised before the trial Court and took the Court to Clause No.2 of the agreement to which both the defendant and the plaintiff were parties and he also pointed out that the first and second floor and the basements were excluded. Under such circumstances, the plaintiff was unlawfully using the property which is outside the lease agreement. Hence, the order of the learned single Judge has got to be sustained. https://hcservices.ecourts.gov.in/hcservices/ 8. The Court paid its anxious consideration on the submissions made on either side. 9. It is not on controversy that as on date the appellant/defendant is a tenant under the landlord/respondent. When the property was under the erstwhile owner, the tenancy commenced. An agreement was entered into between the parties on 9.2.2003 where the present plaintiff was an affirming party and he has also signed in the agreement. 10. In the terms and conditions found in the agreement dated 9.2.2003 entered into between the parties, Clause No.2 reads as follows: "The rental for the DEMISED PREMISES has been computed on the basis of a super built-up area of 49570 sq.ft. consisting of the ground, Mezzanine and 3rd to 10th floors (excluding the two basements and the 1st ad 2nd floors)." This part is relied upon by the respondent/owner while the learned counsel for the appellant took the Court to the schedule of the property found in page 11 of the agreement which reads as follows: " Commercial multi storeyed building known as DELPHI consisting of two basements, ground, Mezzanine and 10 floors and all that piece and parcel of land admeasuring 7 Grounds and 17 sq.ft. Comprised in R.S.No.1632/4 in Block No.52, Egmore Division, bounded on the : NORTH BY :Ethiraj salai formerly known as Commander-in-Chief Road in block No.51 SOUTH BY: R.S.No.1632/30 EAST BY : Strip of land sold to Aban Constructions Pvt.Ltd WEST BY : R.S.No.1632/30" 11. The learned counsel for the appellant also took the Court to Clause No.4 which reads as follows: " The LESSEE shall use the DEMISED PREMISES the purpose of their normal and usual business under the name of HCL E-SERVE TECHNOLOGIES LTD and its sister concerns or its subsidiaries but the LESSEE shall be solely liable to pay the rental and shall maintain the premises in a clean, tidy, neat, good and tenantable condition, wind and water tight in all seasons by attending to reasonable wear and tear." https://hcservices.ecourts.gov.in/hcservices/ Pointing to the above paragraph, the learned counsel for the appellant would submit that while the schedule of property would cover basements area and also the first and second floors and it was also for the use by the tenant for his normal and usual business, it would be quite clear that what is meant for own use which is the subject matter of litigation was actually leased out. Added further learned counsel, there is nothing to indicate that it is beyond the normal use of the business of the appellant. Added further learned counsel, when the property was purchased by the respondent the present plaintiff was also a party to the agreement entered into between the erstwhile owner and the present appellant/defendant on 9.2.2003 and subsequently, from 2004 onwards the present plaintiff is all along the witness and it is well within the knowledge of the plaintiff that the property has been used for the purpose of normal use and they cannot have any objection. Therefore, the circumstances do not warrant for any interim injunction and the interim injunction granted has got to be vacated. 12. The Court is of the considered opinion that it is true in the agreement dated 9.2.2003, the present plaintiff was also a party, hence, it would bind the plaintiff but at the same time, Clause No.2 which speaks of the rent would clearly speaks of the calculation for the premises, excluding the basements and also the first and second floors. It is true, it is found that the tenant premises should be used for the normal business purpose and it would mean that the property which was actually been demised must be used for normal use. It is true that in the schedule of the property the entire property is found and it is pertinent to point out that there is not only exclusion of few area made but there is also a specific measurement of the property for which the rent was calculated and it was shown as only 49570 sq.ft. It would indicate the fact as per the lease agreement the appellant can use the property only to an extent of 49570, the basement area and the first and second floors is outside 49570 sq.ft. Under such circumstances, the contentions putforth by the learned counsel for the appellant that the schedule of property covers the entire property and therefore, he can use it for normal business cannot be countenanced. 13. As regards the other contention of the learned counsel that for the past 5 years the appellant/defendant has been using the same for the said purpose, as now complained of by the plaintiff, it cannot now be permitted. It is a fit case where unlawful act of the appellant, in breach of agreement, must be restrained. Under such circumstances the trial Court is perfectly correct in granting the interim injunction as prayed for and the same has to be sustained. 14. In so far as the second part of the order is concerned i.e., granting interim mandatory injunction, the Court is able to see sufficient force in the contention putforth by the learned senior counsel. It was case where the plaintiff sought for permanent injunction simplicitor. There was not even the relief of mandatory injunction asked for. It is well settled principle of law that interim mandatory injunction should be granted by a Court when extra https://hcservices.ecourts.gov.in/hcservices/ ordinary circumstances prevail. When such a relief was not asked for in the main relief in the suit, no question of granting interim mandatory injunction would arise. Under such circumstances, that part of granting interim mandatory injunction has got to be vacated, accordingly, vacated. 15. Therefore, the first part of relief granting interim injunction by the learned single Judge is sustained. The second party of the relief granting interim mandatory injunction is set aside. Accordingly, the appeal is disposed of. No costs. Consequently, M.P.No.1 of 2009 is closed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vsi To The Sub Assistant Registrar, Original Side, High Court, Madras. +1 cc to Mr.Pushpa Menon, Advocate, SR.No.42361 +1 cc to Mr.P.B.Ramanujam, Advocate, SR.No.41674 OSA.No.257 of 2009 MRD {CO} TP/7.9.2009. https://hcservices.ecourts.gov.in/hcservices/