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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 05.09.2013
Pronounced on: 30.09.2013
+ IA Nos. 16249/2012(u/S 151 CPC) and 16250/2012 (for condonation
of delay in re-filing application no.16249/12) in CS(OS) 2400/2011
RAJESH KUMAR NAGPAL & ORS ..... Plaintiffs
Through Mr.Rajshekhar Rao and
Mr.K.Harshvardhan Reddy,
Advocates
versus
M/S SILVER GRAND SERVICES & ORS ..... Defendants
Through Mr. Madan Gera, Advocate alongwith
Mr.Parminder Singh/defendant no.2
in person
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
IA No. 16249/2012 (u/S 151 CPC) and 16250/2012 (for condonation of delay in re-filing application no.16249/12)
1. This is an application filed by the defendants for modification of order dated 24.11.2011 and 22.12.2011 and for further direction that rent and conversion charges to be paid to the plaintiff be suspended till the applicants/defendants get license from the statutory authority.
2. The present suit is filed by the plaintiff for declaration, permanent injunction, recovery of possession, recovery of arrears of rent, mesne profits and damages. The issue pertains to a property being A-1, Plot No. 54, Rama IA No. in CS(OS)No.2400 /2011 Page 1 of 21 Road, Najafgarh Road, Industrial Area, New Delhi-110015 measuring 700 sq. yards comprising basement, ground, first, second and third floors. As per the plaint, the plaintiff had entered into a registered lease agreement dated 3rd August, 2010 whereby the basement, entire ground floor, entire first floor and 3rd floor with terrace as elaborated in the said agreement was let out to the defendants for the purpose of running a Banquet Hall w.e.f. 1st October, 2010. As per the lease agreement, the monthly rent of Rs.7,49,742/- and monthly sum of Rs. 1,42,500 towards annual conversion charges plus other dues were payable to the plaintiff for demised premises. It is stated in the plaint that on account of various reasons, the defendants were in violation of the terms of the lease agreement. Hence, legal notice dated 15.09.2011 was sent to the defendants stating that the lease agreement stands cancelled on account of breach Clause „8‟of the lease agreement and calling upon the defendants to deliver vacant physical possession of the demised premises to the plaintiff. As defendant did not vacate, the present Suit was filed.
3. On 24.11.2011, a consent order was passed by this Court, relevant portion of which reads as follows:-
"After extensive arguments, it has been agreed between the parties that with effect from 21st December, 2011, the defendants will not run or operate any banquet hall in the suit premises without obtaining all statutory permissions including consent from DPCC, licence from MCD and registration/licence under Delhi Police Act. It has been further agreed that the defendants will be at liberty to install only the effluent treatment plant on the roof of the third floor of the suit property without any hindrance from the plaintiffs. It has also been agreed that the defendants will pay all the arrears of rent and conversion IA No. in CS(OS)No.2400 /2011 Page 2 of 21 charges and will also issue TDS Certificates in respect of the income-tax already deducted by them at source within two weeks from today and will continue to pay an amount equivalent to the agreed rent and conversion charges, regularly, to the plaintiffs.
This consent order is being passed without prejudice to the respective rights and contentions of the parties. It is made clear that the defendants will be at liberty to resume the running of banquet hall, after they obtain all the statutory clearances in terms of this order. This order is to remain operative during pendency of this suit. Wherever required, the plaintiffs will give the requisite NOC to the defendants in order to enable them the statutory clearances. The plaintiffs will also provide proof of deposit of service tax to the defendants within two weeks. The defendants will furnish an undertaking to this Court today itself, to pay the arrears in terms of this order within two weeks from today."
4. The next material order is dated 22.12.2011 passed by this Court on IA No. 20767/2011 which was filed by the defendants under Section 151 CPC seeking directions for depositing arrears of rent without prejudice and for extension to run the Banquet Hall. The following order was passed.
"Vide consent order dated 24th November, 2011, it was directed that with effect from 21st December, 2011, the defendants would not run or operate any banquet hall in the suit premises without obtaining all statutory permissions including consent from DPCC, licence from MCD and registration/licence under Delhi Police Act. It was also agreed that the defendants would pay all the arrears of rent and conversion charges and would also issue TDS Certificates in respect of the income-tax already deducted by them at source within two weeks from the date of the order and would continue to pay an amount equivalent to the agreed rent and conversion charges, regularly, to the plaintiffs. A pay order of Rs.52,58,452/- has been handed over to the learned counsel for the plaintiffs today in the Court. The learned counsel IA No. in CS(OS)No.2400 /2011 Page 3 of 21 for the defendants states that the pay order covers arrears of rent and conversion charges upto November, 2011 and admits that rent and conversion charges which were payable on 2nd December, 2011 have not been paid. He undertakes to pay those charges to the plaintiffs within a week.
The defendants are also seeking extension of time upto which they can run or operate the banquet hall without obtaining statutory permissions in terms of the consent order dated 24th November, 2011. The request is vehemently opposed by the learned counsel for the plaintiffs. The contention of the learned counsel for the defendants is that the defendants had made certain bookings which inadvertently could not be brought to the notice of the Court on 24th November, 2011 and the defendants are seeking extension of time in order to honour those bookings. However, the fact remains that no application was filed by the defendants soon after 24th November, 2011 for extension of time to run the bookings without statutory permissions. Since the request for extension of time has been opposed and running of a banquet hall in the suit premises would not be in conformity with the statutory provisions of Water(Prevention and Control of Pollution) Act, 1974, Air(Prevention and Control of Pollution) Act, 1981, Municipal Corporation of Delhi Act and Delhi Police Act, I cannot grant extension sought by the defendants.
5. By the present application, the defendants are seeking suspension of rent till the applicants get the license from the statutory authority and modification of the above orders dated 24.11.2011 and 22.12.2011 to that extent.
6. It is the contention of the defendants that the property in question was let out for running a Banquet Hall. It is stated in the application that the defendants have applied for Health Trade License and fire NOC but the authorities have apprised the defendants that it will take substantial time and IA No. in CS(OS)No.2400 /2011 Page 4 of 21 for this reason, running of the Banquet Hall would be jeopardised and livelihood of the defendants‟ employees would be at stake. It is stated that in compliance of order dated 24.11.2011, the defendants are depositing the arrears of rent and issuing the TDS certificates. It is further stated that the defendants have already made bookings up to April 2012 for the Banquet Hall which were made in the month of October, 2011 and when IA No. 20767/2011 was moved earlier, inadvertently the defendants did not mention this fact. It is further stated that order dated 22.12.2011 was passed and permission to run the Banquet Hall without necessary compliance was denied by this Court on account of vehement opposition by the plaintiff. Hence, it is prayed that the said orders dated 24.11.2011 and 22.12.2012 be modified and the rent be suspended for the period Banquet Hall has not run.
7. It is noteworthy that this application was filed on 02.01.2012 but it was lying in objection. It has been re-filed on 28.08.2012. Hence, along with this application IA No. 16250/2012 was filed under Section 5 of the Limitation Act for condonation of delay in re-filing of the application. It is stated that there is a delay of 206 days and the said delay be condoned.
8. To further buttress the contention of the defendants in this application, an additional affidavit dated 20.09.2012 has also been filed by one of the partners of the defendant No. 1. In the additional affidavit reliance is placed on Clause 1 and Clause 5 of the lease deed. Clause 1 of the lease deed states that the lessors are the absolute owners. Clause 5 states that there is no impediment, legal or otherwise for letting the suit property. It is stated that these clauses imply representations and undertakings of the lessor which IA No. in CS(OS)No.2400 /2011 Page 5 of 21 tantamount to representation stating that the property is fit to be used for running a Banquet Hall, meaning thereby that property in question was legally and validly constructed after getting the building plans sanctioned from Municipal Corporation of Delhi and complying with all the norms of fire safety measures and other statutory compliances as prescribed by law. It is stated that pursuant to the objections from the Chief Fire Officer, the defendants called upon the plaintiffs to handover certified copy of the sanctioned building plans as sanctioned by the MCD. It is stated that a reminder was sent to the defendants vide letter dated 02.03.2012 calling upon the plaintiffs to expedite giving of the sanctioned plans. Subsequent reminders were also sent. However, the plaintiffs have never given the sanctioned building plans on account of which the defendants could not obtain requisite „No Objection‟ from the Fire Department. Consequently, the Trade Health License could not be given by the Municipal Corporation of Delhi. Hence, it is claimed that the plaintiffs miserably failed to perform their obligations under the lease deed. It is also stated that despite directions vide order dated 24.11.2011 of this Court, the plaintiffs failed to file the NOC in the form of furnishing sanctioned building plans and hence, the defendants could not get the requisite permission. Hence, it is claimed that the Banquet Hall could not be continued resulting in huge financial loss to the defendants and consequently, failure of the defendants to pay the monthly rent as well as conversion charges to the plaintiffs. It is stated that the defendants have invested huge amount of Rs. 3 crores for carrying out renovation of the building. The closure of the Banquet Hall is directly attributable to the inactions and deliberate omissions on the part of the plaintiffs. It is hence stated that the defendants are entitled for directions for IA No. in CS(OS)No.2400 /2011 Page 6 of 21 suspension of rent from 1st December, 2011 onwards.
9. I have heard learned counsel for the parties.
10. Learned counsel for the defendant/appellant has relied upon Section 108 (a) of the Transfer of Property Act which provides that the lessor is bound to disclose to the lessee any material defect in the property with reference to its intended use to submit that the fact that the plaintiffs did not possess sanctioned build plan and completion certificate is a fact hidden from the defendants which has resulted in the defendants suffering huge losses. It is argued that the property, as per the lease deed was rented out for running a banquet hall. In terms of Clauses 1 and 5 of the lease deed, the plaintiffs were obliged to provide the necessary sanctioned plans and completion certificates to enable the defendants to get the requisite sanctions. Reliance is placed on letter dated 21.02.2011 issued by the Deputy Health Officer, MCD where the MCD has informed the defendants that for grant of health trade license, the NOC from Fire Department is mandatory. Reliance is also placed on a letter dated 15.03.2011 from the said Department which repeats the said contention. Reference is then made to the letter dated 02.06.2011from the said Health Department rejecting the request for grant of health trade license. It is argued that MCD took the step on account of non-supply of sanctioned plans and completion certificate by the plaintiffs. It is also argued that the plaintiffs did not let the defendants install the Effluent Treatment Plant (ETP). Reliance is placed on the lease deed which provides that the leased premises include terrace rights for installations of generator or Effluent Treatment Plant, etc. It is stated that the IA No. in CS(OS)No.2400 /2011 Page 7 of 21 plaintiffs illegally blocked the defendants from putting the said ETP. Accordingly, legal notice dated 02.06.2011 was sent to the plaintiffs whereby the counsel for the defendants had requested the plaintiffs to allow his clients/defendants to install the ETP as per the lease deed failing which the defendants would be constrained to take legal action in accordance with law. The plaintiff is stated to have given a reply to the said legal notice dated 08.06.2011 where it is submitted that the defendant has tried to twist the clauses of the lease agreement. It is stated that because of this conduct of the plaintiff, the ETP could not be installed and the Statutory Authorities took appropriate action. It is stated that on account of the said conduct of the plaintiff, the defendant no.1 was forced to file CS(OS) 1720/2011 for permanent and mandatory injunction against the plaintiffs. Reliance is also placed on a show cause notice issued by the Delhi Pollution Control Committee dated 11.02.2011 under the Air (Prevention and Control Pollution) Act, 1981 and Water (Prevention And Control of Pollution) Act, 1974. The notice stated that the defendants were discharging waste water directly into the sewer/drain and no ETP was found installed. Reliance is also placed on a closure notice dated 24.03.2011 passed under the said Acts directing closure of the unit of the defendants. Direction was also issued to NDPL and DJB to disconnect water and electricity supply. A communication was also issued by the said DPCC to DJB and NDPL on 09.05.2011 to disconnect water and electricity supply. Learned counsel for the defendants has also relied on the letter dated 24.01.2012 which is attached to the additional affidavit issued by Delhi Fire Service where various objections to the building plans have been pointed out. Reference is also made to a letter dated 27.02.2012 where the Delhi Fire Service IA No. in CS(OS)No.2400 /2011 Page 8 of 21 demanded building plans duly approved by the MCD. Reference is made to a letter dated 02.03.2012 written to the plaintiffs stating that for letting out complete building plans are mandatory and the same may be provided. Thereafter, the learned counsel submits that several reminders have been sent to the plaintiffs but to no effect.
11. It is further argued that the plaintiffs have instead started writing to the authorities that the defendants have been functioning from the premises without appropriate sanctions and requesting the authorities to take action against the defendant. Hence, it is stated that the plaintiffs were instrumental in getting the unit of the defendants closed. On the basis of the above facts, it is submitted that the orders dated 24.11.2011 and 22.12.2011 are liable to be modified and the payment of rent be suspended.
12. Learned counsel for the defendants has also relied upon judgment in the case of Surendra Nath Bibra vs. Stephen Court Ltd., AIR 1966 SC 61, N.K. Baslas vs. Krishan Lal, 1973 RLR 14 and Hakim Sardar Bahadur vs. Tej Parkash Singh, AIR 1962 P and H 385 to argue that the court has power to issue direction for suspension of payment of rent.
13. Learned counsel appearing for the plaintiffs has on the contrary argued that the present application is nothing but an attempt by the defendants to wriggle out of the consent order dated 24.11.2011. He submits that after order of this Court dated 24.11.2011, the defendants have initiated various proceedings in none of which they got any relief. It is pointed out that IA No. 20767/2011 was filed seeking extension of time up to which IA No. in CS(OS)No.2400 /2011 Page 9 of 21 they can run or operate the Banquet Hall without obtaining statutory permission in terms of the consent order dated 24.11.2011. This application was dismissed on 22.12.2011. In IA No. 20767/2011, the only contention that was raised by the defendants was that they have applied for health trade license and Fire NOC but that authorities have stated that it will take substantial time and therefore this would jeopardise the running of the Banquet Hall.
14. It is stated that against order dated 22.12.2011 an appeal being FAO (OS) 623/2011 was filed. The said FAO (OS) was dismissed as withdrawn on 02.01.2012 with liberty to the defendants to approach the appropriate authorities for obtaining necessary permission. Similarly, an IA No. 584/2012 was also filed by the defendantsseeking modification of order dated 22.12.2011 stating that order dated 24.11.2011 be modified by granting extension of time to run the Banquet Hall up to 26.04.2012. It is pointed out by the learned counsel for the plaintiffs that even in this application the defendants have stated that they have bookings up to April 2012. It is further stated that MCD has stated to the defendants that issuance of license is a lengthy process and that though the applicants have submitted "all the relevant documents required for issuance of a license" but it is a very cumbersome process. In the application, the defendants further stated that all the relevant documents required for issuance of the licence have been submitted by the defendants but it is a cumbersome process. This application was dismissed as withdrawn on the request of the defendant in view of the order of the Division Bench dated 02.01.2010, on 13.01.2012. It is further stated that a third application i.e. IA No. 1091/2012 was filed by IA No. in CS(OS)No.2400 /2011 Page 10 of 21 the defendants for permission to run the Banquet Hall in view of the bookings already made. In this application, contradictory stands are taken by the defendant. In para 4, for the first time an allegation is made that the building plan is not submitted to the MCD as the plaintiff has failed to supply the same. For NOC from the Fire Department it is stated that the same could not be approved as various documents were not given by the plaintiffs on time. In para 40, it is further stated that after getting papers from the plaintiff, the defendant has again applied for licence which is pending approval to run the banquet hall. It is further stated in the application that the defendant has submitted all the relevant document required for issuance of licence.
15. It is urged that the averments clearly show that the defendants were fully aware of the factual situation. They have at no stage ever sought from the plaintiffs copies of the completion certificate or sanctioned building plans. For the first time that such demand was made was only an afterthought with an attempt to try to wriggle out of the consent order passed on 24.11.2011. For the first time such a request has been made much after the order dated 24.11.2011. Learned counsel for the plaintiffs also relies upon an application form which is placed on record by the defendants along with the additional affidavit which is submitted by the defendant to MCD. In the said application form in Column 12, the defendants filled the form stating that the premises is not approved/regularised as per the building bye- laws. This application form is dated 16.02.2010 (probably should read 16.02.2011). Relying on this, it is submitted that this unequivocally shows that the defendants knew the exact status of the building. The present IA No. in CS(OS)No.2400 /2011 Page 11 of 21 demand for sanctioned building plans and for completion certificate etc. which is now being raised after order dated 24.11.2011 is only an afterthought. Learned counsel also relies upon a report regarding adequacy of the effluent treatment plan set up by the defendant in the suit property which is filed by the defendant which is stated to be dated 27.04.2011 where it is stated that the defendants have set up the effluent treatment plant. Reliance is also placed on various portions of the said report where a submission is made that the plant is adequate and in order. On the basis of this report, it is argued that the contention of the defendants that there was hindrance on the part of the plaintiffs in allowing the defendants to set up the ETP is misconceived and an erroneous argument which is contrary to the document filed by the defendants themselves.
16. Learned counsel also relies upon the certificate issued by the Chartered Accountant of the defendants dated 04.05.2011 which states that the defendants have spent a sum of Rs. 35,82,700/- in renovation of the suit premises. Hence, it is stated that the contention of the defendants in the additional affidavit that they have spent a sum of Rs. 3 crores in renovating the building is completely false and a mischievous argument contrary to the documents placed on record by the defendants themselves.
17. Learned counsel has pointed out that after the lease dated 03.08.2010 between the parties, the defendants have started running the Banquet Hall in January 2011. It was the obligation of the defendants to procure necessary clearances. Reliance is placed on Clause „8‟ of the lease deed (internal page No. 13) where it is categorically stated that the defendants shall not indulge IA No. in CS(OS)No.2400 /2011 Page 12 of 21 in any illegal activity which is against law. It is further stated that the obligation of the lessors was only confined to providing an NOC to the lessee as clearly stipulated in Clause 11 (internal page 13) of the lease deed.
18. Reliance is also placed, apart from order of the Division Bench dated 02.01.2012, upon an order of this court dated 22.05.2013 and 12.07.2013 in the execution petition.
19. In rebuttal, the learned counsel for the defendants has tried to stress that the reliance of the learned counsel for the plaintiffs on the report to state that ETP has been installed is incorrect as this was only an attempt by the defendants to get the necessary license. Similarly, it is pointed out that the certificate issued by the Chartered Accountant which is relied upon by the learned counsel for the plaintiffs is erroneous and is a document manipulated and procured.
20. The admitted fact is that the defendants paid the arrears of rent up to November, 2011. The premises were vacated on 19.11.2012. Hence, rental and other dues are unpaid for the period December, 2011 to 19.11.2012.
21. Firstly, as far as the consent order dated 24.11.2012 is concerned, this Court while dismissing review in the execution petition on 12.07.2013 has categorically confirmed that the order dated 24.11.2011 has to be read as a whole and as per the order the defendants were not only to pay the arrears of rent, conversion charges and TDS certificates but also the future rental.
IA No. in CS(OS)No.2400 /2011 Page 13 of 2122. Now I come to the demand of the defendants for remission of the rent for the period post December, 2011. The admitted fact is that till 24.11.2011, there is no document or letter or communication placed on record whereby it can be said that the defendants have ever demanded from the plaintiffs the sanctioned building plans. As rightly pointed out by the learned counsel appearing for the plaintiffs, even in IA No. 20767/2011 and IA No. 584/2012 filed by the defendant, the defendants have nowhere stated that there is default on the part of the plaintiffs. IA No. 20767/2011 is dated 20.12.2011. In this application, the defendants have pleaded that they have applied for the health trade license and fire NOC but there is likelihood that it will take some time. The said application further in para 9 states that though the defendants have applied for the trade health license and fire NOC but the same could not be approved as various documents were not given by the plaintiffs on time. IA No. 584/2012 is dated 13th January, 2012. In this application the defendants make a categorical averment in para 39 that they have submitted all the relevant document required for issuance of license but that it is a very cumbersome process. It is also stated in para 37 that after getting the papers from the plaintiffs the defendants have again applied for health license which is pending. There is no averment that the plaintiffs were obliged to supply the sanctioned building plans. IA No. 1091/2012 is dated 18th January, 2012 where for the first time in para 4 a submission is made that though the defendants have applied for license but the building plan has not been submitted as the plaintiff despite several requests failed to supply the same. This is very casual averment made in a small para in an application which has 46 paras. In fact in para 40 of the application, it is reiterated that the defendants have again applied for the trade health license IA No. in CS(OS)No.2400 /2011 Page 14 of 21 after getting the papers from the plaintiffs. Admittedly, as submitted by the learned counsel for the plaintiff, for the first time that the defendants asked the plaintiffs for a sanctioned building plan was as per the defendant vide letter dated 02.03.2012 i.e much after the lease deed dated 03.08.2010 and much after the defendant had started the banquet hall. This is also much after the consent order passed by this Court on 24.11.2011.
23. One also cannot help noticing the application placed on record by the defendants along with their additional affidavit i.e., a copy of the application to obtain trade license. Clause 12 of the said application with its answer reads as follows:-
"12. Whether the premises is approved/regularized as per the Building Bye-laws No."
24. This application is duly signed by the defendants and is dated 16.02.2010 (probably 16.02.2011). This document clearly demonstrates that the defendants stand is false. The document clearly shows that the defendants are fully aware of the full picture right from the beginning.
25. Even otherwise, the submission of the defendant does not appear to be plausible. The defendants claim themselves to be in the business of the hospitality services and running of banquet hall and restaurants. They claim to have taken a premises on rent at the rate of about Rs.10,00,000/- per month and claim to have spent Rs.3 Crore on renovation of the banquet hall. Given the experience of the defendants and the nature of the transaction, it is difficult to believe that the defendant would not have fully satisfied themselves about the building and various aspects before taking the said IA No. in CS(OS)No.2400 /2011 Page 15 of 21 premises on rent. Clearly, in view of the above facts, the submission of the defendant that the defendants were misled by the plaintiff and that the defendants were not aware that the plaintiffs do not have a sanctioned building plan or a completion certificate appears to be a manufactured argument only with a view to wriggle out of their liability to pay the rent.
26. One cannot also help noticing that the defendant has filed the present application in January 2012 and the same has been refilled after a delay of more than 200 days. The application, for the first time, appears to have been listed before the Court on 24.09.2012. Clearly the defendants were not serious about this application. One cannot help feeling that this application is only an attempt to try and delay the claim of the plaintiffs.
27. In view of the above, it is obvious that the demand for sanctioned building plans has been raised by the defendants for the first time after the consent order dated 24.11.2011. Clearly, this is an afterthought and the basis of which appears to be nothing but an attempt to wriggle out of the said consent order. Hence, the contention and submission of defendant that the rent is liable to be suspended as the plaintiffs suppressed vital facts from the defendant is a contention entirely without merits. The facts and documents placed on record by the defendant do not show that the plaintiff has suppressed material facts from the defendant.
28. The next argument of the learned counsel for the defendant relates to interpretation of the terms of the lease deed dated 03.08.2010.
29. Reference may be had to the clauses of the lease deed which are relied IA No. in CS(OS)No.2400 /2011 Page 16 of 21 upon by the defendants, namely, Clauses 1 and 5. The same reads as follows:-
"1. That the First Party/lessors are absolute owners and have power and authority to lease the Second Party/lessees the demised premise for the purpose stated herein.
........
5. That there is no impediment, legal or otherwise, for letting the scheduled demised premises."
30. A bare reading of the aforesaid Clauses of the lease deed does not in any way show that the plaintiffs have in any way represented regarding the legal status of the suit property which was being let out to the defendants. All that Clause 1 states is that the plaintiffs are the absolute owners and have powers to lease out the property. There is no dispute regarding title of the plaintiffs.
31. All that Clause 5 states is that there is no impediment on letting out the suit premises. The absence of the sanctioned building plans as stated by the defendants cannot be said to be an impediment for letting out the said premises.
32. In fact there is merit in the contention of the learned counsel for the plaintiffs that as per the lease deed the requisite sanctions were to be obtained from the statutory authorities by the defendant. The only obligation of the plaintiffs was as provided in Clause „11‟ (internal page 13) of the lease deed which reads as follows:-
"11. That the Lessors shall give the required N.O.Cs. to the IA No. in CS(OS)No.2400 /2011 Page 17 of 21 Lessees, if required by any Government Departments i.e. by DDA/MCD/Excise department/sales tax Department/Fire department etc. The LESSEE represents and confirms that it shall at all times obtain and maintain all necessary permissions and sanctions from the concerned authorities including the Central and State Excise, Food Department, Police, DDA, MCD, Pollution department or any govt. body, so as to enable to use the "Demised Premises" for running Banquet Hall and that such permissions and sanctions shall be in full force and effect during the terms of this Lease Agreement and such permissions shall be arranged by the LESSEE himself at its own costs and expenses for making the use of "Demised Premised" for the banquet purposes."
33. On the contrary, the above clause clearly states that the lessees (defendants) confirm that they will take all necessary permissions and sanctions from the concerned authorities to enable them for running the Banquet Hall. There is no mention of any document to be provided by the plaintiffs. The plaintiff has to only provide an NOC. The interpretation of the lease, as claimed by the defendant cannot be accepted. The terms of the lease deed, as argued by the defendant, do not warrant any suspension of rent, as claimed by the defendant.
34. I will now deal with one more contention of the defendant i.e., regarding setting up of ETPs. It is on account of this controversy that defendants have sent a legal notice to the plaintiffs on 02.06.2011 and on account of the same, the defendants had filed Suit No. 1720/2011. These are events which have taken place prior to consent order dated 24.11.2011. The defendants were fully aware about this controversy which appears to have been sorted out inasmuch as that is why the defendants had agreed to a IA No. in CS(OS)No.2400 /2011 Page 18 of 21 consent order dated 24.11.2011.
35. The reliance of learned counsel for the defendant on Section 108(a) of the Transfer of Property Act is also misplaced inasmuch as they have failed to show application of said provision in the facts of this case.
36. In view of the above, there are no grounds made out whatsoever by the defendant for remission of rent. The present application is nothing but an afterthought by the defendants to somehow wriggle out order dated 24.11.2011. Earlier such attempts have been struck down by the court but this is yet another attempt of doing the needful.
37. What cannot be ignored is that there was a relationship of lessor and tenant inasmuch as the defendants continued to enjoy the physical possession of the suit property. The defendants have surrendered possession on 19.11.2012. In case the property was of no use to the defendants, nothing prevented the defendants to handover the possession earlier without prejudice to their rights and contentions to claim damages from the plaintiff. The defendants cannot continue to retain possession of the suit property and also seek remission of rent on the ground that they were not being able to utilize the premises on account of their inability to obtain statutory permissions.
38. I may refer to the judgment of this Court in the case of Sanjay Gupta vs. Cottage Industries Exposition Ltd., 2008 (102) DRJ 234 where the court was dealing with the same request regarding remission/suspension of IA No. in CS(OS)No.2400 /2011 Page 19 of 21 arrears of rent. Though the court had accepted that in certain circumstances rent can be suspended but the Court held as follows:-
"39. In a landlord tenant dispute where their relationship is admitted, the obligation of the tenant to pay rent for the tenanted premises during the period that the tenant is in occupation of the premises cannot be disputed. Inherent in this admission is embedded an obligation to pay the rent/occupation charges, because the admission of the said relationship excludes a claim based on any other title to the property. The relationship between a landlord and a tenant is one where the tenant agrees to pay the rent/occupation charges in consideration for the right granted to him by the landlord to use and occupy the premises. Therefore, he cannot, while being in use or occupancy of the premises, not pay the rent/occupation charges therefore. However, the tenant may set up defences to justify suspension of his obligation to make payment of rent, of the kind raised in the present case. Once those defences have been considered and rejected by the court, it necessarily follows that the obligation of the tenant to pay the rent is established and the tenant holds the money due on account of rent on behalf of landlord."
39. Reference may also be had to the judgment of Supreme Court in the case of Union Carbide Corporation v. Union of India, AIR 1992 SC 248, where observations were made that a consent order is wholly dependent upon the legal validity of the agreement on which it rests. The consent order can be impeached only on the ground of fraud or any other grounds which invalidates the agreement. In the present case, the defendants have failed to establish any ground of fraud or any other ground which would justify the invalidating of agreement in the consent order.
40. Reliance of the learned counsel for defendants on the judgments in the IA No. in CS(OS)No.2400 /2011 Page 20 of 21 case of Surendra Nath Bibra vs. Stephen Court Ltd., AIR 1966 SC 1361, N.K. Baslas vs. Krishan Lal, 1973 RLR 14 and Hakim Sardar Bahadur vs. Tej Parkash Singh, AIR 1962 PH 385 is misplaced. The Court would have powers to remit the rent or suspend the rent in appropriate cases. On the facts of the present case, there are no grounds for remission of rent.
41. The present application is dismissed with costs quantified at Rs. 20,000/-.
I.A. No. 16250/2012 I have considered the above matter on merits namely, I.A. No. 16249/2012. The present application for condonation of delay in re-filing the application is infructuous and no orders are required to be passed in this application.
CS(OS) 2400/2011 List on 22.10.2013 for consideration of pending applications.
JAYANT NATH, J SEPTEMBER 30, 2013 rb IA No. in CS(OS)No.2400 /2011 Page 21 of 21