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Asha Dass & Others v/s Prime Road Solutions Pvt. Ltd. & Others

    CS (COMM). No. 711 of 2017
    Decided On, 06 July 2021
    At, High Court of Delhi
    By, THE HONOURABLE MS. JUSTICE MUKTA GUPTA
    For the Plaintiffs: Rahul Gupta, Megha Gupta, Varun Kumar, Raghuveer Kapur, Advocates. For the Defendants: D1 to D3, Shekhar Dasi, Advocate.


Judgment Text
I.A. 4893/2020 (under Order XXXIX Rule 10 CPC r/w Order XV-A Rule 1 CPC-by plaintiffs)

I.A. 2830/2020 (under Order XIIIA CPC-summary judgment-by plaintiffs)

I.A. 2831/2020 (under Order I Rule 10 (2) CPC-by defendant Nos.2 & 3 for deletion from the array of parties)

1. The present suit was filed by the plaintiffs impleading Prime Road Solutions Pvt. Ltd., Vivek Yadav, Inderjeet and Subramaniah Syamala Murthy as defendant Nos. 1 to 4. By the suit, the plaintiffs sought a decree of possession of the suit property and recovery of arrears of rent besides damages/mesne profits along with the interest thereon. Case of the plaintiffs is that the plaintiff Nos. 1 to 4 are the owners of the premises forming part of the property bearing No. 21A, Janpath, New Delhi i.e. front portion of the first floor admeasuring 2000 square feet covered area (in short, the 'suit property'). The suit property was let out to defendant No. 1 company vide the registered lease deed dated 9th September, 2015 for a period of three years effective from 1st July, 2015 upto 30th June, 2018. Though the possession of the suit property was handed over to the defendant No. 1 company on 1st June, 2015 for carrying out the interior works, however, the monthly rent was to start with effect from 1st July, 2015. The monthly rent of the premises was agreed and fixed at Rs.5 lakhs less Tax Deducted at Source (TDS) payable quarterly and it was also agreed that any delay in the payment of rent beyond 7th day upto 15 days, shall attract 2% interest and beyond 30 days after service of notice, shall give the right to the owners to terminate the lease forthwith.

2. Learned counsel for the plaintiffs submits that after the present suit was filed, the possession of the premises was handed over on 31st May, 2018 and that arrears of rent started from 1st April, 2017. Further, legal notice was issued to the defendant No. 1 on 15th/16th May, 2017, terminating the tenancy with effect from 31st May, 2017. It is thus claimed that the defendant No. 1 owes arrears of rent for the months of April and May, 2017 amounting to Rs.10 lakhs plus damages/mesne profits for a period of 12 months from 1st June, 2017 to 31st May, 2018 amounting to Rs.60 lakhs. The arrears of TDS from 1st July, 2015 to 31st March, 2017 i.e. Rs.10,50,000/- have since been deposited by the defendant No. 1, however, the service tax due amounting to Rs.10,15,000/- from 1st April, 2016 to 31st May, 2017 is pending. The defendant No. 1 had deposited a security for a sum of Rs.25 lakhs and further paid a sum of Rs.13,50,000/- when the plaintiffs filed complaint under Section 138 Negotiable Instruments Act. It is thus claimed that out of the total amount due of Rs.80,15,000/-, the balance amount due towards the defendants was Rs.41,65,000/- with interest thereon.

3. Case of the defendants in the written statement is that from 17th October, 2017 to 18th March, 2018, the electricity to the suit premises was got disconnected at the instance of the plaintiffs and hence, the defendant No. 1 is not liable to pay the rent for the said period because defendant No. 1 could not utilize the premises. Hence the defendants are liable to pay no amount in view of the dues having been adjusted from the security deposit and the additional sum of Rs.13,50,000/- paid. Further, defendant No.1 has filed a counter claim which is pending adjudication.

4. According to learned counsel for the defendants, the defendant No. 1 has already cleared the arrears of rent for the months of April, May and June, 2017 when it made payment of Rs.13,15,000/- during the pendency of the complaint under Section 138 of the Negotiable Instruments Act. Further, since at the instance of the plaintiffs, the electricity at the suit premises was disconnected, the defendant No.1 could not utilize the suit premises with effect from 17th October, 2017 to 18th March, 2018 and hence, the defendant No.1 is not liable to make any payment for the said period. As regards the period of July, 2017 to September, 2017 and from 19th March, 2018 till 20th April, 2018 is concerned, when the defendant vacated the premises, the rent due can be adjusted from the security deposit of the defendant No. 1 for a sum of Rs. 25 lakhs lying with the plaintiffs. It is thus claimed that the defendant No. 1 is not liable to pay any rent or damages to the plaintiffs.

5. According to learned counsel for the defendant No.1, a perusal of the copies of the Emails between the plaintiffs and defendant No.1 would reveal that the plaintiffs were aware of the electricity disconnection and stated that the same would be due to fault in the electricity and the same should be got remedied. Even if after service of legal notice of termination of the tenancy, the status of the defendant No. 1 was that of the trespasser, however, the trespasser is also entitled to use of the electricity and hence, the plea that there was no obligation on the plaintiffs to provide electricity is misconceived. The plaintiffs, in fact, cheated the defendant No.1 for the reason, the lease deed stated that the suit premises were clear from any encumbrance, charge and were legal, however, in view of the illegal construction carried out, the suit premises were sealed and demolished by NDMC. Hence, learned counsel for the defendants states that no case is made out to grant relief under Order XXXIX Rule 10 CPC. Rather, the plaintiffs herein are liable to pay damages, loss of profit of business and for repair of false ceiling charges to the defendant No.1.

6. Learned counsel for the defendants relied upon the judgments reported as AIR 2002 Delhi 344 Indian Overseas Bank Vs. R.M. Marketing and Services Pvt. Ltd., 139 (2007) DLT 688 Tristar Consultants Vs. Customer Services India Pvt. Ltd. and Another and RFA 14/2010 Mukesh Hans and Anr. Vs. Smt. Usha Bhasin & Ors. decided on 16th August, 2010.

7. Learned counsel for the defendants in support of the application under Order I Rule 10(2) CPC filed on behalf of the defendant Nos. 2 and 3 claims that the defendant Nos. 2 and 3 are not necessary parties to the suit and hence, they be deleted from the array of the parties as has been done in respect of the defendant No. 4 to which the plaintiff conceded. Further, defendant No. 2 is not even a Director of the company.

8. Learned counsel for the plaintiffs rebutting the arguments of learned counsel for the defendants in respect of the defence taken contends that the plea of the defendant No.1 that there was no electricity from 17th October, 2017 to 18th March, 2018 is a bogus plea as neither any complaint was made nor any notice was issued in this regard by the defendant No. 1 to the plaintiffs. Further, after the suit was instituted, a Local Commissioner was appointed, who carried out the inspection on 31st October, 2017 when the premises was found lying abandoned, vacant and not in use and at 2.30 pm, the Local Commissioner found that the lights of the premises were on. On 5th January, 2018, the defendant appeared before this Court, however, did not mention about disconnection of the electricity and stated that he wanted to settle the matter.

9. Learned counsel for the plaintiffs states that assuming for the sake of arguments in the present application, the plea of the defendant is accepted, on termination of the tenancy with effect from 31st May, 2017, the defendant No. 1's status was at best of a tenant on sufferance. There being no relationship of a landlord and tenant between the plaintiffs and defendant No. 1, the plaintiffs were under no obligation to provide electricity to the defendant No. 1. Reliance in this regard is placed on the decisions reported as AIR 1996 SC 140 R.V.Bhupal Prasad Vs.State of Andhra Pradesh and Ors., AIR 1998 SC 3085 Raptakos Brett & Co. Ltd. Vs. Ganesh Property and 2012 (188) DLT 48 Punjab National Bank Vs. Virendra Prakash.

10. Considering the fact that the tenancy was entered into between the plaintiffs and defendant No. 1, which is a juristic entity, and also that the defendant Nos. 2 and 3 have neither executed a contract of guarantee nor indemnity, this Court deems it fit to delete the defendant Nos. 2 and 3 from the array of the parties. Thus, application being IA 2831/2020 is disposed of, deleting defendant Nos. 2 and 3 from the array of the parties.

11. In respect of I.A.4893/2020 under Order XXXIX Rule 10 CPC and I.A.2830/2020 under Order XIII-A CPC filed by the plaintiffs it may be noted from the facts adverted above that the defendant No.1 was let out the suit property w.e.f. 1st July, 2015 upto 30th June, 2018. Admittedly the defendant has paid rent till 31st March, 2017. The arrears of rent started from 1st April, 2017 and pursuant to the legal notice issued by the plaintiffs the tenancy was terminated w.e.f. 31st May, 2017. Further admittedly, the defendants have paid a sum of Rs.13.50 lakhs during the proceedings under Section 138 of the Negotiable Instruments Act, the same being the arrears of rent/damages for the months of April, May and June, 2017. The defendant No.1 had also deposited the security for a sum of Rs.25 lakhs with the plaintiffs. The actual dispute between the parties relates to the period from 17th October, 2017 to 18th March, 2018 to which defendant No.1 claims that the plaintiffs had got the electricity disconnected and since the defendant No.1 could not utilize the said premises, it is neither liable to pay the rent nor the damages in respect thereof.

12. This fact is refuted by the learned counsel for the plaintiffs on the ground that the defendant did not issue any notice that the electricity was got disconnected by the plaintiffs and when the Local Commissioner inspected the premises, the lights were switched on even during day time and hence the plea of defendant No.1 in this regard is false. Even accepting the contention of learned counsel for the plaintiffs that the defendant No.1 was a tenant at sufferance after the termination of the tenancy, there is very little difference between a tenant at sufferance and a trespasser as held by the Supreme Court in the decision reported as AIR 1996 SC 140 R.V. Bhupal Prasad vs. State of Andhra Pradesh & Ors. It was held:

“9. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser.

In Mulla's Transfer of Property Act (7th Edn.) at page 633 the position of tenancy at sufferance has been stated thus : A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore , cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus : The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession.”

13. Further, it is well settled that even a trespasser cannot be denied the basic amenities. In 2008 SCC OnLine Cal 492 Santosh Jaiswal vs. CESC Limited & Ors., the Calcutta High Court dealing with the rights of a trespasser to use electricity held that the same was an essential service without which it was difficult to survive and the right guaranteed under Article 21 of the Constitution of India being a fundamental right, no one can be deprived of such right only on the basis of an unestablished accusation that he is a trespasser. It was held:

" 20. That apart, one cannot lose sight of the fact that a person intending to enjoy electricity though alleged to be a trespasser by the owner of the premises cannot be evicted by the owner except by taking recourse to law. If possession of such trespasser is protected till such time his eviction is ordered according to law, it defies reason as to why an embargo should be created by judicial verdict only in respect of obtaining supply of electricity. None can dispute that electricity is an essential service without which it is difficult to survive. Right to live a meaningful life and with dignity is one of the basic postulates of Article 21 of the Constitution. The right guaranteed under Article 21 is the fundamental of all fundamental rights enshrined in Chapter III of the Constitution. One cannot be deprived of such right only on the basis of an unestablished accusation that he is a trespasser which, as held in Soumitra Banerjee (supra), is commonly used as a tool or means of putting extraneous pressure for resolving civil disputes. Supply of electricity to such alleged trespasser by a licensee would neither prejudice in any manner the owner's right to have an order of eviction passed against him nor would it make any difference so far as status of the alleged trespasser is concerned. The licensee's duty is to sell electricity provided formalities are complied with. There is no justification to hold that lawful occupation of a portion of the premises is a pre-condition for obtaining supply. If the right of an owner to object to electricity being supplied to an occupier of his premises by the licensee is to be conceded on the ground that the occupier has illegally or unauthorisedly taken possession, that would necessarily lead to clothing the licensee with the right to adjudicate the occupier's right to enjoy the property which this Court is inclined to hold is not the legislative intention. The laws of the country provide for adjudication of such issue by an appropriate forum. If there is any flaw in the statute or the phrasing is defective and the need to mend it arises, it is only the legislature that can amend it. It is the function of the Courts to expound and not to legislate is settled law. Keeping in view the scheme of the new Act, reading the word lawful before the word ‘occupier’ would amount to legislation by Court which is impermissible."

14. Calcutta High Court in the decision reported as 2021 SCC OnLine Cal 159 Ramjiban Kirtaniya vs. West Bengal State Electricity Distribution Company Ltd. and Ors. held that even a tenant at sufferance unless evicted by due process of law is entitled to electric connection:

"5. After considering the submission made by the respective parties and the materials on record, I find that the petitioner is in settled possession of the shop room in question. The petitioner's tenancy has not yet been terminated. Assuming without admitting that the same had been terminated, the status of the petitioner will be that of a statutory tenant or at the least, a tenant at sufferance. The petitioner's entry to the said shop room is rightful. Even if the petitioner is holding on to the shop room, say in an unauthorised manner, the petitioner's status at the least be that of a trespasser. It is

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settled position of law that a trespasser unless evicted by due process of law is entitled to electric connection. The constitutional mandate also allows the petitioner to enjoy electricity at the shop room. WBSEDCL, as a licensee, is also statutorily bound to give the petitioner a new connection." 15. Undoubtedly the defendant has not filed any email or notice to the plaintiffs indicating that the electricity at the suit property was lying disconnected since 17th October, 2017 before the filing of the suit. This stand of the defendant emerges from the written statement filed and/or by the emails dated April 2018, after the suit has been instituted. Since both the parties are disputing whether electricity was disconnected and if so at the behest of the plaintiffs or not, the said issue cannot be decided merely based on the pleadings and will have to be decided after the parties have led their evidence. Consequently, in view of the dispute raised by the defendants as to the usability of the impugned premises on account of disconnection of the electricity got done by the plaintiffs no summary judgment or order under Order XXXIX Rule 10 CPC can be passed based on the mere pleadings until the parties have entered into the witness box. Therefore, IA Nos. 4893/2020 and 2830/2020 filed by the plaintiffs are dismissed and IA No.2831/2020 filed by defendant Nos. 2 and 3 seeking deletion from array of defendants is allowed and defendant Nos. 2 and 3 are directed to be deleted from the memo of parties. Amended memo of parties be filed within four weeks. 16. Order be uploaded on the website of this Court. CS (COMM) 711/2017 List the suit before the Roster Bench on 6th August, 2021.
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