Through Mr. Atul Nigam, Mr. Amit Tiwari, Advs. versus

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE OA 92/2013 & IA Nos. 132/2013, 18787/2012, 218/2013, 1581/2013 in CS(OS) 3081/2012 Reserved on: 29th October, 2013 Decided on: 3rd January, 2014 VEENA BEHL & ANR Through Mr. Atul Nigam, Mr. Amit Tiwari, Advs.... Plaintiff versus M/S VASARI INDIA PVT LTD Through Mr. R.L. Kohli, Adv.... Defendant Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1. Before adverting to the appeal and the applications it would be appropriate to narrate the relevant facts. The plaintiff has filed the present suit for possession, recovery of arrears of rent, mesne profit, damages and injunction against the defendant which is a private limited company. The plaintiffs who are the owners/ lessors of the commercial property i.e. shop on the ground floor bearing private shop No. 2, 6/ Ajmal Khan Road, Karol Bagh, New Delhi, (hereinafter the suit property) entered into a lease agreement with the defendant company which lease expired by afflux of time and thus a fresh registered lease deed was executed on 4th September, 2009 for a further period of three years with effect from 10th September, 2009 to 9th September, The registered lease deed provided for enhancement of rent during this tenure. The initial monthly rent was fixed at Rs. 4,25,000/- from 10th September, 2009 to 9th September, 2010 which was increased to 4,50,000/- for the period from 10th September, 2010 to 9th September, The lock-in period between the parties was for the entire duration of the lease period i.e. 10th September, 2009 to 9th September, 2012 and the defendant company had handed over in advance 74 post-dated

2 cheques in lieu of the said rent. As per clause 6 of the registered lease deed in case of dishonor of cheques, the defendant company was liable to pay double the amount of the instrument besides giving right to the plaintiff to take appropriate legal recourse as available and upon consecutive dishonor of cheques on two occasions, the lease entered between the parties would come to an end before the agreed period. It is alleged by the plaintiffs that the defendant company acted contrary to the terms and conditions of the registered lease deed and defaulted in honouring the payment of rent through post-dated cheques. OA 92/2013 (u/chapter 2 Rule 4 DHC(OS) Rules by defendant) 2. By this appeal the defendant/ appellant challenges the order dated 3rd July, 2013 passed by the learned Joint Registrar dismissing the application of the defendant company being IA No. 406/2013 seeking condonation of delay in filing the written statement. 3. The case of the defendant/ appellant is that the defendant was served with the summons of the suit at Corporate Office of the defendant on 21st November, 2012 and an affidavit of service dated 29th November, 2012 has been filed by the plaintiffs in this regard. Thus, the learned Joint Registrar on the basis of service report dated 7th November, 2012 with regard to the service on the defendants at the shop premises on the manager of the shop erred in coming to the conclusion that the written statement was not filed in 30 days. Written statement along with the counter claim of the defendant in the present suit was filed on 29th December, Admittedly, defendant is a private company. As per Order XXIX Rule 2 CPC summons on a corporation may be served either on its Secretary or any Director or principal officer of the corporation or by leaving it or sending it by post addressed to the Corporation at the registered office, or if there is no registered office then at the place where the corporation carries on its business. Thus, the service of notice at the shop on 7th November, 2012 would not be deemed to be service and the defendant would be deemed to have been served on its corporate office on 21st November, 2012 for which an affidavit has also been filed by the plaintiff. Thus, there is delay of only one day in filing the written statement beyond 30 days which fact has also been explained by the counsel. It is stated that since the defendant was to file the counter claim as well, it took time in purchasing the Court fees.

3 5. Learned counsel for the plaintiff does not object to the appeal being allowed and states that the written statement and counter claim be taken on record, however presses his application for striking the defence of the defendant. 6. Since sufficient cause has been shown, the order dated 3rd July, 2013 passed by the learned Joint Registrar is set aside. Consequently, the written statement and counter claim are taken on record. The appeal is disposed of. IA No.132/2013 (u/s 151 CPC by the Defendant) 7. By this application the defendant seeks enlargement of time for paying the rent, occupation charges as directed vide order dated 10th December, The defendant has been defaulting in making the payment, so vide order dated 10th December, 2012 this Court noted that in response to the IA 18787/2012 filed by the plaintiff under Order XXXIX Rule 10 CPC the defendant has neither filed the reply affidavit in the given time nor was present. Further the defendant continues to remain in occupation of the suit premises even after the lease has expired and thus as an interim measure and without prejudice to the rights of parties while imposing costs of Rs. 10,000/- directed the defendant to pay the monthly occupation charges to the plaintiff at the current rate of Rs. 4,50,000/- per month with effect from October, The arrears were directed to be cleared by 31st December, 2012 and thereafter the defendant was directed to pay charges on month-tomonth basis on or before 7th of each calendar month. The defendant in this application has taken the plea of financial difficulty. On 7th January, 2013 when this application came up for hearing this Court adjourned the matter till 15th February 2013 and expected that the defendant would clear the outstanding dues by that time failing which the managing director of the defendant was directed to be present on 15th February, On 15th February, 2013 the managing director of the defendant company assured that by 31st March, 2013 the dues will be cleared including the occupation charges. The matter was thereafter listed for 17th April, 2013 when again the defendant failed to comply with the orders passed by this Court and neither paid the arrears of rent/ occupation charges nor month-to-month payments in terms of the order dated 10th December, Again assurance was made, however despite assurance till date the directions of this Court has not been complied with.

4 9. Application of the defendant seeking extension of time is dismissed as despite having assured this Court repeatedly for making the payment, the defendant has failed to comply with the same. IA No. 218/2013 (u/o XVA r/w S. 151 CPC by plaintiff for striking the defence) 10. Learned counsel for the plaintiff contends that despite permitting the written statement and the counter claim of the defendant to be taken on record, the defence of the defendant is liable to be struck as it has willfully defaulted in obeying the orders passed by this Court. 11. Order XVA reads under: (A) In any suit by a owner/lessor for eviction of an unauthorized occupant/ lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order (within such time as the Court may fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The defendant shall continue to deposit such amount till the decision of the suit unless otherwise directed. In the event of any default in making the deposit as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off the defence. (2)Before passing an order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence. (3)The amount deposited under this rule shall be paid to the plaintiff owner/lessor or his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination. 12. Order XVA unambiguously provides that in case defendant fails to deposit the rent as per the directions of the Court, the Court may subject to the provisions of Sub-rule (2) strike off the defence. Sub-rule (2) provides for serving a show cause notice to the defendant or his Advocate and to consider the cause shown. Show cause notice of the present application was issued to the defendant on 7th January, 2013 when the learned counsel for the defendant accepted notice. Despite three weeks time having been granted to file reply to this application, the reply was filed by the defendant only on 15th March, In the reply the defendant has stated that it is

5 facing financial crunch and has sought condonation of delay in complying with the orders of this Court. The defendant has also pleaded that the defendant had sought extension of time for paying the rent which had been extended by this Court to 31st March, 2013 vide its order dated 15th February, It may be noted that despite extension of time till date the orders of this Court directing payment of rent have not been complied with. Thus, in view of the mandate of Order XVA CPC this Court has no option but to strike off the defence of the defendant. Consequently, this application is allowed and the defence of the defendant is struck off. IA No.18787/2012 (u/o XXXIX R 10 r/w S.151 CPC by Plaintiffs) 13. By this application the plaintiff seeks directions to the defendant to pay Rs. 60,000/- per day with effect from 10th September, 2012 along with the amount of Rs. 4,50,000/- per month or in the alternative prevailing market monthly use & occupation Rs. 6 lakhs or as per registered lease deed admitted amount of Rs. 5,17,000/- and to clear the outstanding dues: a) Admitted outstanding rent as per statement of a/c filed by the defendant uptill Rs. 4,50,000/- per month comes to Rs.17,41,096/-. b) Use & occupation charges for the period to Rs. 4,50,000/- P.M. comes to Rs. 2,83,500/-. c) Use & occupation charges as per directions of this Court dated Rs. 4,50,000/- P.M. comes to 52,92,000/- 14. As noted above, the defendant has been continuously defaulting in making the payment, despite repeated assurances to this Court. 16. Thus, the defendant is directed to clear the outstanding dues of the Rs. 4,25,000/- from 10th September, 2009 to 9th September, 2010 and Rs. 4,50,000/- per month with effect from 10th September, 2010 till date with 9% per annum till the date of realization. 17. Application is disposed of. IA No.1581/2013 (u/o XII R 6 r/w S. 151 CPC by the Plaintiffs) 18. By this application the plaintiffs seek decree on admission. In reply to this application though the defendant has relied upon his written statement

6 and counter claim but has admitted the execution of registered lease deed dated 4th September, 2009 for a period of three years. The case of the defendant in the reply is that as per the lease deed the defendant had the option to exercise for getting the lease renewed for a further period of three years and the lease has to be renewed by execution of a fresh registered lease deed by increasing the rent by 15% and the defendant has already exercised the said option vide letter dated 29th May, 2012 and a reminder sent on 16th July, On the basis of this Clause the defendant has filed the counter claim. 19. A perusal of the lease deed dated 4th September, 2009 however shows that besides the right of the defendant to exercise option of renewal, it was also provided vide clause 6 that the lease shall come to end on immediate consequential dishonour of cheques for consecutive presentation on two occasions or upon dishonour of cheques on two consecutive monthly rents. Not only in the reply to this application but also before this Court the defendant has admitted its default in the cheques being dishonoured and the defendant defaulting in paying the rent. 20. Thus the lease having come to an end due to consecutive dishonour of cheques and default in payment of fine, the plaintiff is entitled to a decree of possession of the suit premises. Thus, a preliminary decree is passed in favour of the plaintiff and against the defendant to vacate the suit premises and hand-over the vacant & peaceful possession thereof to the plaintiff. 21. Application is disposed of. CS(OS) 3081/2012 and CC No. /2013 (Registry to number the counter claim) 22. Written statement to the counter claim be filed within four weeks and replication within four weeks thereafter. 23. List before the learned Joint Registrar for admission/ denial on 19th March, JANUARY 03, 2014 Sd/- (MUKTA GUPTA) JUDGE

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