GURBACHAN SINGH BHATIA v. ARVIND WABLE — 1996 DIGILAW 244 (DEL)

N. G. Nandi ( 1 ) IN the suit for decree of possession in respect of the ground floor of the suit property situated at D-6/16 Vasant Vihar, New Delhi and a money decree for Rs. 2,62,000. 00 for alleged unlawful and unauthorised stay by the defendants in the suit premises from May to September, 1995 @ Rs. 70,000. 00 - per month and for a mandatory injunction seeking to restrain the defendants from sub-letting or otherwise creating any charge or encumbrance. By this application, the plaintiff prays for directions, requiring the defendants to handover vacant and physical possession of the suit property i. e. ground floor, requiring the defendants to settle the accounts from 7. 7. 1995 till date and meet the liabilities in respect of water, electricity bills etc. ; requiring the defendants to deposit the accounts of the suit premises with the Court. ( 2 ) THE say of the plaintiff is that a three year lease agreement dated 31. 7. 1992 had been entered into between the plaintiff and defendant No. 2 company at a monthly rental of Rs. 8,000. 00. That the premises have been tenanted only for the residence of defendant No. 1 and his family; that clause 3 of the lease agreement provides that the lease may be extended/renewed for a further period with the mutual consent in-writing of both parties on terms and conditions then agreed upon. That the lease expired on 7. 5. 1995; that defendant No. 1 on the expiry of the lease on 7. 5. 1995 told the plaintiff that there is a likelihood of some spillover beyond 7. 5. 1995 for a period of about two months till 30. 6. 1995 and drew the attention of the plaintiff to clause 19 of the lease agreement which provided for damages of Rs. 1,000. 00 - per day in case the premises are not vacated on the expiry of the lease. That the demised premises was not vacated by defendant No. l on the expiry of the lease. That during the months of May and June, 1995 an amount of Rs. 88,000. 00 by different cheques on account of rent/damages in terms of clause 19 of the agreement have been sent by the defendants. That defendant No. 2 company continues to be in unauthorised occupation/possession on the ground floor without any payment whatsoever since 1. 7. That during the months of May and June, 1995 an amount of Rs. 88,000. 00 by different cheques on account of rent/damages in terms of clause 19 of the agreement have been sent by the defendants. That defendant No. 2 company continues to be in unauthorised occupation/possession on the ground floor without any payment whatsoever since 1. 7. 1995 either in the form of damages @ Rs. 1,000. 00 per day as provided in clause 19 of the agreement or the current market rate which is around Rs. 70,000. 00 per month. That defendant No. 1 did not vacate the premises on 31. 6. 1995 and in fact avoided speaking to the plaintiff and in July, 1995 he become incommunicado. The plaintiff sent notice dated 7. 7. 1995 to defendant No. 2 company. That defendant No. 2 company did not reply to the plaintiff s notice. ( 3 ) DEFENDANT No. 2 company in reply to the application contends that on 4. 5. 1995, the plaintiff approached the defendant company and agreed to enter into a fresh tenancy at a rate of Rs. 40,000. 00 per month instead of Rs. 8,000. 00 per month and in token of the same the plaintiff had accepted two cheques ofrs. 40,000. 00 each as rent for the May and June, 1995. That with the creation of a fresh tenancy it is not open to the plaintiff to contend that the premises only to be used by defendant No. 1. That even otherwise there is a provision in the lease-deed that the same can be renewed by the parties and the parties having acted on the creation of a fresh tenancy cannot back out from the same. That the question of damages @ Rs. 1,000. 00 per day is concerned, the same is not applicable after the 5 times enhancement of rent from Rs. 8,000. 00 per month to Rs. 40,000. 00 per month. That the defendant is entitled to revoke doctrine of suspension of rent in view of the fact that on the night of 10/11. 9. 1995, the electricity meter of the suit premises installed in the garrage being in the possession of the plaintiff was deliberately tempered and burnt by the plaintiff resulting into disconnection of electricity to the suit premises where defendant No. 1 was residing. 9. 1995, the electricity meter of the suit premises installed in the garrage being in the possession of the plaintiff was deliberately tempered and burnt by the plaintiff resulting into disconnection of electricity to the suit premises where defendant No. 1 was residing. That despite repeated requests to get electric meter repaired, the plaintiff refused to do so though the necessary electricity charges were paid by the defendant company. That the cheques sent by defendant No. 2 by registered post as rent of the suit premises were refused by the plaintiff. That the lessee has performed his contractual obligations under Section 108-A (C) of the Transfer of Property Act and the plaintiff refused to supply necessary amenities. The defendant/tenant is entitled to invoke doctrine of suspension of rent. ( 4 ) IT is submitted by Mr. Mukul Rohtagi, learned counsel for the plaintiff that the suit premises had been rented to defendant No. 2 company for the residence of defendant No. l and his family. That defendant No. 2 company, the lessee is liable to pay Rs. 40,000. 00 per month. That the purpose of lease is over. That the plaintiff had accepted the rent @ Rs. 40,000. 00 per month for two months and thereafter the defendants had stoped paying the rent and that necessary directions, as prayed in the application, be issued. As against this it is submitted by Mr, Chaudhry, learned counsel for defendant No. 2 that the plaintiff has refused the envelope of remittance of the rent; that there is no electricity in the premises and that the defendant is entitled to invoke the doctrine of suspension of rent under Section 108-A (C) of the Transfer of Property Act. That it is the plaintiff who has refused to accept the rent. That the plaintiff must first supply electricity and then ask for rent. That the plaintiff has not performed his part of the obligation. ( 5 ) IT is not in dispute that the suit premises namely, ground floor has been rented by the plaintiff to defendant No. 2 company. It is also not in dispute that the intially the lease was only a period of three years by lease agreement dated 31. 7. 1992 effective since 8. 5. 1992 till 7. 5. 1995. ( 5 ) IT is not in dispute that the suit premises namely, ground floor has been rented by the plaintiff to defendant No. 2 company. It is also not in dispute that the intially the lease was only a period of three years by lease agreement dated 31. 7. 1992 effective since 8. 5. 1992 till 7. 5. 1995. By virtue of clause 3 the lease may be extended or renewed for a further period with the mutual consent in writing of both parties on terms and conditions agreeable to both, ( 6 ) IT is also not in dispute that the intial lease expired on 7. 5. 1995 i. e. at the expiry of three years from 8. 5. 1992 and that for the months of May and June, 1995 the defendant paid rent @ Rs. 40,000. 00 - per month in respect of the suit premises which has been admittedly accepted by the plaintiff. ( 7 ) TAKING the admitted facts as above, in my opinion, there is no question of issuance of directions Nos. 1 and 3, as prayed in this application since the plaintiff after 7. 5. 1995 has accepted the rent at the enhanced rent of Rs. 40,000. 00 per month after the expiry of initial lease period on 7. 5. 1995. Thus there is no question of requiring defendant No. 1 or 2 to vacate the rented premises at least at this stage. The other direction sought is with regard to settlement of accounts in respect of damages from 1. 7. 1995 till date and the amount of liability in respect of water and electricity bills etc. . It is suggested and not disputed also that from September, 1995 there is no electricity in the suit premises on account of the blast having taken place resulting into stoppage of the electricity supply to the suit premises. ( 8 ) A copy of the letter dated 11. 9. 1995 by Delhi Electric Supply Undertaking bearing No. 13500 placed on record reads that "due to overloading and short circuiting to your M/board wires, meter got burnt. ( 8 ) A copy of the letter dated 11. 9. 1995 by Delhi Electric Supply Undertaking bearing No. 13500 placed on record reads that "due to overloading and short circuiting to your M/board wires, meter got burnt. You are therefore advised to bring down your load wires sanction limits (4 Four No. A/cs alongwith other mini Ac power and lighting board on combined got sanctioned load of 8 K. W.) and ratifye the fault in one wiring and thereafter submit a fresh T R and Others effect at our Distt. Office R. K. Puram and complete other commercial requirements such electricity supply could be restored. " ( 9 ) TAKING, the letter as it is the reason is the overloading and short circuiting in the meter/board wiring leading to burning of the meter which culminated into stoppage/disconnection of electricity supply to the suit premises. ( 10 ) THE letter dated 11. 9. 1995 referred to above is addressed to the plaintiff obviously being the owner of the property and the electricity connection being in the name of the plaintiff/owner such letter would be addressed by the D. E. S. U. to the plaintiff as the owner. According to the defendant as the plaintiff has not provided electricity to the suit premises is entitled to invoke doctrine of suspension of rent under Section 108-A (C) of the Transfer of Property Act. Sub Clause (C) of Clause A of Section 108 provides that the lessor shall be deemed to contract that the lessee that, if the latter pays the rent reserved by the lease, he may hold the property during the time limited by the lease without interruption. ( 11 ) THE rent @ Rs. 40,000. 00 per month is admittedly paid for the months of May and June, 1995. The rent for the month of July and August, 1995 what ever be the reason, remained unpaid. The blast for the reasons stated in the letter dated 11. 9. 1995 took place in September, 1995 and there is no electricity supply admittedly since September, 1995. ( 12 ) ANNEXURE-Z-1 at page-121 is the copy of the letter dated 7. The rent for the month of July and August, 1995 what ever be the reason, remained unpaid. The blast for the reasons stated in the letter dated 11. 9. 1995 took place in September, 1995 and there is no electricity supply admittedly since September, 1995. ( 12 ) ANNEXURE-Z-1 at page-121 is the copy of the letter dated 7. 8 1995 addressed by the plaintiff to the S. H. O. , Vasant Vihar Police Station, New Delhi In para 3 of the said letter it is stated by the plaintiff denying the allegations of disconnection of water supply for the ground floor. That the ground floor has an independent direct water supply system through the Corporation and the same has been checked by the staff of the Vasant Vihar Police Station and the same again may be got verified during the M. C. D. water supply timings and the plaintiff can not disrupt the water supply by the M. C. D. to the defendant. In para-4 of the said letter it has been stated that similarly the electricity supply system of the ground floor is through a separate meter and the plaintiff can never disrupt this system and that the addressee may depute his representative and get this fact verified and if the plaintiff is found tampering with the public property the occupant may report the matter to the D. E. S. U. or M. C. D. ( 13 ) IT has not been the say of the defendant that there is no separate sub meter for the suit premises for the electricity suply and that it is because of the default of the plaintiff that there was short circuit to M/board wires the meter got burnt and that the electricity supply to the suit premises has been stoped. It need hardly be said that if there is a sub meter in the suit premises viz ground floor and the stoppage or disconnection of the electricity supply to the ground floor is because of overloading then the stoppage or disconnection of electricity supply will be prima facie attributable to the occupant of the premises concerned, for which the sub meter is installed/fitted. Under the circumstances it prima facie does not appear that the defendant would be entitled to invoke the doctrine of suspension of rent. Under the circumstances it prima facie does not appear that the defendant would be entitled to invoke the doctrine of suspension of rent. ( 14 ) IN view of the above, the plaintiff would be entitled to the directions as prayed in this application only to the extent that the defendant shall pay the agreed amount of rent/damages @ Rs. 40,000. 00 per month from 1. 7. 1995 since the defendants have paid rent/damages @ Rs. 40,000. 00 per month for the months of May and June, 1995, as the rent/damages from 1. 7. 1995 apart from the defendant having allegedly attempted to remit the same as contended by counsel for the defendant, has remained unpaid and, therefore, the defendant is directed to deposit/pay rent/damages at the admitted rate of Rs. 40,000. 00 - per month from 1. 7. 1995 onwards pending the hearing and disposal of the suit. ( 15 ) AS regards the payment of rent/damages @ Rs. 40,000. 00 per month from 1. 7. 1995 to 29. 2. 1996 the same shall be paid or deposited by the defendants within three months from today. As regards the further payment of rent/damages from 1. 3. 1996 the defendant shall continue to pay or deposit at the aforesaid rate on or before 7th day of following English calander month pending the hearing and disposal of the suit.