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TMI Blog2014 (8) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... such capacity the appellants negotiated with the Life Insurance Corporation (respondent herein) and entered into a Lease Agreement which was executed by the appellants as lessor and the respondent as lessee on 9th May, 2008 and registered on the same date. The material terms of this lease read as follows:- "And whereas the Lessors have agreed to let to the Corporation and the Corporation has agreed to take on lease from the Lessors Mr. Krishan Kumar, Ground Floor, of the said building bearing No. CGF -1,2,3,4, Ground Floor, C Block, Dilkhush Industrial Estate, G.T. Karnal Road, Delhi. Ground floor aggregating in all to 3750 sq. ft. more particularly described in the schedule hereunder written for the consideration and at the rent and upon the terms and conditions hereinafter contained. XXXX Hereinafter referred to as the „demised premises‟ to hold the demised premises unto the Corporation and from 1.5.2008 for the term of three years yielding and paying therefore during the said terms and the monthly rent Rs. 3,18,750/- (Rs. Three lacs eighteen thousand seven hundred fifty) + service tax as applicable, only inclusive of providing fully AC arrangement shall be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted premises against the appellant Krishan Kumar Aggarwal (impleaded as defendant No.1 in Suit No.436/2008) as well as respondent- LIC (as defendant No.2 therein). It was pleaded by Smt. Arvinder Kaur Sethi that the present appellant was her licensee in the subject premises. This suit rested on her claims detailed in paragraphs No. 5 & 6 of her plaint (Suit No. 436/2008) which may be usefully extracted and read as follows:- "5. That the defendant No.1 is going to create third party interest in the property in question by letting out to the defendant No.2 because from the display of the Board at the office of the defendant No.2. It is apparent that its office is to be transferred on 23-6-2008 to the Ground Floor 1,2,3 4, Dilkhush Estate, G.T.Karnal Road, Azadpur, Delhi. 6. That on 27-9-2007 while personnel of the plaintiff were discharging their duties at the gate, they were obstructed by other occupants of the premises with the help of some unsocial elements threatened them that they would not allow them to stand there as security personnel and the plaintiff being a law abiding lady rang up on 100 number and the PCR arrived on the spot headed by the SHO, P.S. Model Town, Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed against the LIC. It is noteworthy that the present appellant No.1 had also filed a counter claim therein against Smt. Arvinder Kaur Sethi. 10) In the above circumstances on 11th September, 2008, Smt. Arvinder Kaur Sethi moved an application for withdrawal of the suit for the reason that the defendant had already created third party interest in the suit property before its filing and the suit was therefore infructuous. The suit was disposed of as withdrawn with liberty to file the same afresh. 11) At this stage, the present respondent addressed a letter dated 22nd July, 2008 to the appellant No.1 stating that Harvinder Kaur had filed a suit regarding the tenanted premises against appellant No.1 as well as LIC. It was informed that:- "We have taken the above mentioned premises on lease for our branch office 12T w.e.f. 01.05.2008. And you are aware that Smt. Harvinder Kuar has filed a suit regarding the same premises against you and LIC. Due to litigation we are not interested to shift into this premises. Please refer our various Telephonic conversation requesting to take the possession back of the abovementioned premises. But you have not responded in this regard so far." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t remains there was no such agreement ever intended to be entered into by us nor such fabricated and forged document has any legal tenability. In any case counter claim has been filed in the court and a copy of the same would be forwarded to you shortly. In the prevailing facts and circumstances, you have no privity of contract with any other person except the lessors in terms of the said lease deed and you are within your rights to enjoy the said four flats by running your office. We assure that we would protect and safeguard your interest under the said lease deed and would take adequate legal measures in the court of law to raise your comfort level. Necessary directions in this regard would be obtained from the court so that no prejudice is likely to be caused to you for the use and enjoyment of the leased flats as above. We hope that you would cooperate with us to take the matter to a logical end." (Underlining by us) 14) As the respondent failed to comply with the demands for rent etc., the appellants followed up with a legal notice dated 8th November, 2008 which was in the following terms:- "This is to inform you that in terms of the lease deed you are in peaceful and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r called upon to pay rent every month. It is further made clear to you that it is your own decision to keep premises locked and in no manner you can escape liability of payment of rent. A copy of this notice is being forwarded to the Chairman for needful action in the matter so that our client is not illegally deprived of his legal rights." (Emphasis by us) 15) After waiting for a reasonable time, on 6th January, 2009, the plaintiff filed CS(OS) No. 57/2009 seeking the following decree:- "a. a decree of recovery of money amounting to `19,02,500/- towards arrears of rent w.e.f. 01.06.2008 till 01.12.2008 against the defendant and in favour of plaintiffs may kindly be passed. b. defendant be further directed to pay agreed rent @ `3,18,750/- per month w.e.f. 01.12.2008 till the continuation of the tenancy. c. a decree for arrears of maintenance and power back up/ generator charged amount to `1,83,484/- as on the date of filing of the suit may kindly be passed against the defendant and in favour of plaintiffs. d. Pendente lite and future maintenance charges and power back up/ generator charges @ `6.90p. together per sq. ft. be also awarded in favour of plaintiffs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 6/- per sq. ft. for power back up arrangement. In this manner the defendant corporation has been in arrears of rent amounting to Rs. 19,02,500/- as on 01.12.2008 and a total sum of Rs. 1,83,484/- towards maintenance and power back up/ Generator charges. 17. That vide notice dated 08.11.2008 sent on behalf of the plaintiffs, the defendant corporation was called upon to pay the arrears of rent and discharge its contractual obligation under the registered lease deed. It seems that some of the officer of defendant corporation have colluded and connived with said Smt. Arvinder Kaur, who has initiated a suit bearing CS (OS) Nos.436/08 & 2104/08 with an intention to grab the property of the plaintiffs and deprive the plaintiffs of their legal right about the ownership of the suit property. 18. That inspite of letter dated 23.08.2008 and notice dated 08.11.2008, there has been no response received from the defendant corporation and defendant corporation has been continuing in the suit premises without discharging their contractual obligation in the said lease deed. The defendant corporation has been maintaining incoherent approach in as much as on the one hand defendant corporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded reads as under:- "Mr. Kamal Mehta, learned counsel submits, on instructions, from the defendant that vacant possession of the premises would be handed over and requests for some time to do so. He also submits that in view of the pendency of the other suit - CS(OS) 2104/2008 where the plaintiff (in that case) has sought for injunction against the present plaintiff; there is the apprehension of obstruction, the Court should make an appropriate order for deposit of the keys and also ensure that any apprehension of obstruction should be dealt with suitably. In the circumstances, Mr. M.Dutta, Advocate (Mobile No.9810062932) who is present in Court is appointed as Local Commissioner to be present at the suit premises i.e. C.G.F. 1, 2, 3 & 4, Ground Floor, Block-C, Dilkhush Industrial Estate, G.T.Karnal Road, Delhi, on 27.02.2010. The LIC shall hand over the keys, after ensuring that the premises are vacated, to the Local Commissioner, who shall lock the premises and seal it suitably. The keys shall be deposited in the Court. It is open to the Local Commissioner to seek police assistance, if required, and the local police authorities shall render all assistance in the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt upon the real intention of the appellants 24) Our attention is also drawn by Mr. Vijay Gupta, learned counsel for the appellants to the fact that despite the opportunity granted by the Court on 19th February, 2010, nothing was filed by either of the parties on record of the learned Single Judge. The written statement of the defendant has not been taken on record and its defence could not have been looked in the proceedings before the learned Single Judge. The challenge by the appellants has to be tested against this background. Whether the lease between the parties stood validly determined? 25) It has been argued on behalf of the respondents that the lease between the parties stood terminated by the letters dated 22 nd July, 2008; 23rd August, 2008 or 20th September, 2008. Mr. Kamal Mehta, learned counsel for respondent has placed reliance in judgment of the Supreme Court reported at Bhagbandas Agarwalla Vs. Bhagwandas Kanu & ors. AIR 1977 SC 1120 to support the submission that a notice to quit has to be liberally construed. In this judgment it was held thus:- " It is indisputable that under Section 106 of the Transfer of Property Act the notice to quit must expire wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.‟ 28) There can be no dispute with the legal principles laid down in Bhagbandas Agarwalla (Supra) which have to be considered and applied in the facts of the present case. 29) In this regard we may also advert to Section 111 (h) of the Transfer of Property Act. As per this statutory provision, intention to quit the premises has to be treated as a determination of the lease. This position is not disputed by Mr. Vijay Gupta, learned counsel for appellants. The learned Single Judge has therefore rightly held that the said communication for the LIC would be treated as notices terminating the lease on the part of the tenant. However the matters do not end here as would be evident from the following discussion. Third party litigation - impact 30) The respondent has asserted litigation i.e. the filing of the cases by Smt. Arvinder Kaur Sethi and its implication in the litigation as the sole ground for losing interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent to challenge or make an objection to the title of the property. 34) The reasons propounded by the respondent for termination of the lease were therefore inconsequential for the purposes of enjoyment of the leased premises. They, in any event, did not impact user of the premises by the respondent in any manner. Of course the mere fact that LIC got embroiled in the litigation by a third party has been considered as a valid reason for not to wanting to continue with the lease. Could the mere termination of the lease, without handing over the possession to the landlord, absolve LIC from payment of the rent? 35) Mr. Vijay Gupta, learned counsel has urged with some vehemence that the action of the respondent in merely sending the three letters and continuing in possession of the leased premises was insufficient and that liability to pay rent would continue till such time it actually hands over the premises to the appellants. 36) A further grievance is made by learned counsel for appellants that in the appellants' suit for recovery of money, he has in fact been dispossessed from the tenanted premises. It is submitted that the direction to the respondent to deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto possession, the infrastructure created by the LIC in the premises included embedded fixtures and fittings in the nature of cash counters, Branch Manager chamber, Development Officer chamber, I.T. room, electric fittings and other necessary infrastructure required for the functioning of the office. 41) We may also note the proceedings recorded by the Local Commissioner pursuant to the order dated 19th February, 2010. The report of the Local Commissioner dated 19th February, 2010 and 15th April, 2010 show that the Local Commissioner informed the parties of his proposed visit to the tenanted premises on 6th March, 2010 at 11:00 a.m. After taking police assistance, the Local Commissioner reached the subject premises on 6th March, 2010 when the suit premises were opened by the LIC. The Local Commissioner took photographs of the subject premises and prepared the following inventory of the articles of the respondent-defendant lying installed in the leased premises:- "On the right side of the Entrance, there is 1 Aluminium and Glass partitions; "On the left side of the Entrance, there is 1Aluminium & Glass partition; At the Centre of the Hall, there are 3 cash counter ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22nd July, 2008 of the respondent also merely stated that LIC was 'not interested to shift into the premises'. The letter refers to telephonic conversations to take the possession back. However, the respondent took no steps for vacation. The above narration also shows that the premises was not vacated by the lessee pursuant to its letters written by the lessee on 22nd July, 2008; 23rd August, 2008 or 20th September, 2008. 47) It is also evident that neither the filing of CS (OS) No. 2104/2008 by Smt. Arvinder Kaur nor CS (OS) No. 67/2009 motivated the respondent-lessee to vacate the premises. 48) The above facts have been set out in some detail in order to illustrate the conduct of the respondent which despite the said three letters continued to occupy the leased suit premises. Even after the appellants filed the suit for recovery of rent and other charges, the LIC made no offer for handing over vacant possession of the suit premises, despite service of the summons for a period of one year and continued in peaceful possession of the suit premises. 49) Even on 19th February, 2010 the respondent the respondent did not offer to hand over possession to the lessor but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the vacant possession should be taken in terms of Clause-1(d) of the Lease Deed dated 9th May, 2008. The other two letters are of identical tenor and effect. In the instant case, the lessee was bound by virtue of Clause-1 (d) of the Lease Deed dated 9th May, 2008 to put the landlord in vacant possession of tenanted premises and the provisions of Section 108 (q) of Transfer of Property Act. The finding of the learned Single Judge that the LIC wanted to hand over the vacant possession and the appellants have not been able to take it back, are therefore, set aside. Direction to deposit the keys in court 53) Mr. Vijay Gupta, learned counsel for the appellants has also contended that the direction to require the tenant to deposit the keys in the Court was unwarranted. By the direction to deposit the keys in court, the appellants have been therefore deprived of use and occupation of is subject premises. 54) It is to be noted that CS (OS) No. 2104/2008 was not before the Court when orders were passed. There was no prayer on behalf of the plaintiff in CS (OS) No. 2104/2008 for deposit of the keys. LIC which was a defendant in that suit, also did not file any application to hand over k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t supported by any correspondence which emanated from the present respondent, either to the appellants or by a document in the nature of a complaint to the police or any other authority. 59) We find that in the legal notice the appellant had explained to the respondent the nature of its agreement with Smt. Arvinder Kaur Sethi and her husband which was for the purpose of maintenance and the alleged fraud on their part. The respondent rightly did not dispute the appellants' claim of ownership of the property; execution of the lease deed; as well as peaceful possession of the premises having been delivered to it pursuant to the registered Lease Deed. The respondent in fact did not dispute that it was within its rights to enjoy the leased property by its letters dated 23rd July or 23rd August, 2008. We find that the oral submissions with regard to obstruction from user are therefore completely without basis and untenable. Liability to pay rent 60) Let us now examine what relief of payment of rent to the appellant- plaintiff be entitled to. The learned Single Judge has held that the lessee or the respondent expressed the intention to terminate the Lease, which meant a notice. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yping mistake inasmuch as the defendant does not dispute receipt of the letter dated 23 rd August, 2008 from the plaintiff. 65) No explanation has been rendered by the respondent as to why letter dated 23rd August, 2008 and the legal notice sent by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23 rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted. In the judicial precedents reported in Rakesh Kumar Vs. Hindustan Everest Tool Ltd. (1988) 2 SCC 165 & Hiralal Kapur Vs. Prabhu Chaudhary (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied to and controverted, can be treated as an admission by a tenant. 66) In a Division Bench proceedings of this court reported in Metropolis Travels & Resorts Vs. Sumit Kalra 98 (2002) DLT 573 (DB), no adverse inference was drawn against the respondent for failure to reply the legal notice on consideration of the facts and circumstances of the case. Reference was made to proceedings reported in Kalu Ram Vs. Sita Ram 1980 RLR (note) 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll such submission was made on 19th December, 2010. Then too the respondent sought permission to deposit the keys in court, not to give them to the lessor. There is no written statement challenging the averments in the suit on record. 70) Mr. Vijay Gupta, learned counsel for appellant has placed reliance on a Division Bench decision of Punjab & Haryana High Court in Jatinder Kumar Vs. Harmohinder Singh & ors. AIR 1994 Punjab & Haryana 60 which, relying upon the judicial precedent in 'Balasubramania Iyer Vs. Subbiah Thevar' AIR 1965 Mad 417 has reiterated the proposition similar to that advanced by the appellant before us in the following terms:- "8. The contention of the appellants, as noticed above, is devoid of merit. S. 111 of the Transfer of Property Act provides various modes for determination of lease and it is sub-clauses (e) and (f) of S. 111, under which it is sought to be made out that lease in favour of appellants stood determined. Whereas sub-clause (e) talks of determination of lease by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them, sub-clause (f) puts lease to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antamount to legal requirement of handing over the possession of premises to the lessor under Section 106 of the Transfer of Property Act. 73) The LIC at no point of time repudiated any of the assertions by the landlord in his letters. It did not dispute that the lease deed was in subsistence or the liability of the LIC to pay the rent with service tax, etc. in advance; or that the decision to keep the premises locked under the control of the LIC was unilateral. The LIC did not dispute that it had a contractual obligation to make the payment in terms of the lease-deed. The respondent never stated that LIC did not have liability for payment of the rent. 74) The first call to hand over vacant possession on Court record was made in court on 19th February, 2010, i.e. more than one year after the LIC had entered appearance in this suit. No application or oral submission was made in this regard prior thereto. Therefore, it is to be held that the LIC is liable to pay the rent till 15 th April, 2010 with keys of the premises, which were actually deposited in the Court more than after one month after the Local Commissioner's proceedings on 6 th March, 2010. 75) In these fact can it b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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