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TMI Blog2013 (6) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ondoned, he does not object to same being condoned. 3. Accordingly, CM No.12201/2012 is allowed. 4. Four days delay in filing the appeal is condoned. RFA(OS) 64/2012 1. Learned counsel for the appellants states that the proof of the pudding lies in its eating; may be true, but not when the pudding is stinking. 2. Under a registered lease deed, the suit property was let out by the owners of the property, i.e. the respondents herein, to the appellant having its registered office at 610, Udyog Vihar, Phase V, Gurgaon, Haryana. The property let out, as per the lease deed, was the ground floor of premises bearing Municipal No.15A/53 and 15A/54, W.E.A. Ajmal Khan Road, Karol Bagh, New Delhi. The agreed period of lease was nine years, commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledgement due, on 5th and 15th June, 2009, 21st July, 2009, 15th September, 2009, 5th October, 2009. In paragraph 12 and 13, it was pleaded that even on February 24, 2010 notice was issued and served upon the tenant informing that there was a default in payment of rent. In paragraph 15 of the plaint, it was averred that lastly, on March 3, 2010 a legal notice by registered AD post was served upon the defendant calling upon the defendant to pay the arrears of rent but to no avail. 5. Pleading that there was apparently a default in payment of rent for more than two consecutive months in spite of notices being served by registered A.D. post, the suit was instituted praying a decree with respect to rent which had accumulated till suit was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason as per the law it is the commercial use by the tenant which enhances the utility to the tenant with respect to the property which attracts service tax on commercial properties. It is apparent that the defence taken in preliminary objection No.1 with respect to service tax is prohibited by law. 8. With respect to the rent not being paid, as alleged in the plaint, it was not a case pleaded that the rent was paid. The default was admitted. However, with respect to the notices, pleaded in the plaint to have been served upon the defendant, there was a denial thereof. 9. Vide impugned order dated April 24, 2012, I.A. No.1004/2011, under Order XII Rule 6 CPC, filed by the plaintiffs/respondents, has been allowed and decree for possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andlord to serve a notice intimating the tenant that the rent has not been paid. 13. Section 108 of the Transfer of Property Act, 1882 enlists the rights and liabilities of the lessor and the lessee. Suffice would it be to state that clause (l) thereof, casts a legal duty on the lessee to pay or tender the agreed rent at the proper time and proper place. Thus, notwithstanding there being or there not being a term in the lease deed, it certainly would be the duty of every tenant to pay the rent to the landlord as per the agreement. 14. We do not dwell into the issue : Whether payment of rent and non-payment thereof is contemplated within the instant agreement to be a breach of a condition or the breach of a term of the lease agreement, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the rent when summons in the suit were served. 16. As noted hereinabove, in paragraph 1 of the preliminary objections in the written statement it was pleaded that decree cannot follow in view of the fact that the appellant is entitled to relieved against forfeiture as per Section 114 of the Transfer of Property Act, a right under a defence, which was made good in favour of the appellant, when as per order dated February 2, 2011, time was granted to the appellant to avail benefit of Section 114 of the Transfer of Property Act. No rent was paid. The appellant cannot thus project any case at all by way of defence. 17. We agree with the view taken by the learned Single Judge that instant case is a fit case where a decree on admission ought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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