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TMI Blog2013 (12) TMI 1720X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court. The appeal was on 02.12.2013 dismissed in default of appearance of the appellants/defendants. The appellants/defendants filed an application for restoration and notice whereof was issued for yesterday. The counsel for the respondents/plaintiffs appeared and stated that though as per dicta of this Court in Brij Mohan Vs. Sunita 166 (2010) DLT 537, no case for condonation of long delay in re-filing the appeal is made out but subject to the appeal itself being heard, he has no objection to the appeal being restored to its original position and the delay in re-filing being condoned. 2. Accordingly, for the reasons stated, the appeal is restored to its original position and the delay in re-filing the appeal is condoned. 3. The counsels have been heard and the Trial Court record requisitioned in this Court perused. 4. The respondents/plaintiffs on 06.03.2007 instituted the suit from which this appeal arises, for ejectment of the appellants/defendants from an area of 3800 sq. fts. on the ground floor of property No. C-254, Maya Puri, Phase-II, New Delhi let out by the respondents/plaintiffs to the appellants/defendants, pleading: (i) that the said premises were le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int. 7. A perusal of the Trial Court record shows that during the pendency of the suit, a direction for payment of ₹ 40,000/- per month less tax liable to be deducted at source was made and the unregistered and insufficiently stamped lease deed was impounded and sent to the Collector for assessing the proper stamp duty and penalty of two times of the amount of deficiency in stamp duty was imposed. 8. On the pleadings of the parties, the following issues were framed in the suit on 29.11.2007: 1. Whether the rent of premises was ₹ 60,000/- per month or whether the Plaintiff is entitled to a sum of ₹ 2,81,400/- as balance of arrears of rent from 01.07.2006 to 28.02.2007? (OPP) 2. Whether the tenancy of the defendant was duly terminated by the plaintiff, if so, its effect? (OPP) 3. Whether the Plaintiff, is entitled to possession of the ground floor of premises bearing No. C-254, Mayapuri, Phase-II, New Delhi? (OPP) 4. Whether the Plaintiff, is entitled to use and occupation charges at the rate of ₹ 6,000/- per day or any other amount w.e.f. 01.03.2007? 5. Whether the Plaintiff, has filed the present suit after concealing material facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant/defendant, he had stated that the shortfall in rent of ₹ 60,000/- for the months of July, August and September, 2006 stood received by the respondents/plaintiffs vide cheque dated 11.10.2006; the respondents/plaintiffs are not entitled to seek recovery of the shortfall in rent for the said months for this reason; (XI) the respondents/plaintiffs were held entitled to recovery of rent at the rate of ₹ 60,000/- per month for the months of December, 2006 and January and February, 2007 i.e. to a sum of ₹ 1,80,000/-; (XII) that all the three lease deeds contained a stipulation as under: Clause 5: That in case due to any reason if the lease is not extended for further period, the lessee will hand over the possession of the premises by vacating peacefully to the lessor on or before the midnight of 30.06.2008. In case of default the lessee shall be liable to pay a sum of ₹ 2,000/- per day as damages to the lessor for use and occupation of the premises (XIII) however the aforesaid stipulation was applicable only after the expiry of lease period on 30.06.2008 and not prior thereto, even in the event of earlier termination of the lease; (XIV) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.08.2006 and the unregistered lease deed bears the stamp dated 01.09.2006 of the Notary Public; the date of execution of the registered lease deeds is thus taken as 28.08.2006 and of the unregistered lease deed as 01.09.2006; (c) Section 91 of the Indian Evidence Act, 1872 provides that where the terms of a contract have been reduced in the form of a document and where the matter is required by law to be reduced in the form of a document, no evidence shall be given in proof of the terms of such contract except the document itself; Section 92 of the Evidence Act provides that where the terms of the contract required by law to be reduced in the form of a document have been proved according to Section 91, no evidence of any oral agreement between the parties for the purpose of contradicting, varying, adding to, or subtracting from its terms shall be admitted; though there are exceptions to both the said provisions but the same have not been invoked by the respondents/plaintiffs or their counsel and the case is not found to be falling in any of the exceptions; (d) it is also the settled position in law (See Chandrakant Shankarrao Machale Vs. Parubai Bhairu Mohite (2008) 6 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents/plaintiffs amounts to the respondents/plaintiffs having indulged in violation of laws, obviously for the purpose of saving of stamp duty and income tax and have no equity in their favour and are rather barred from any relief on the said ground on the principle of pari delicto. 15. I am also of the view that the reasoning of the learned ADJ of the respondents/plaintiffs being entitled to mesne profits/damages for use and occupation with effect from 01.07.2008 and till the date of delivery of possession at the rate of ₹ 6,000/- per day, on the basis of a clause to the said effect in the lease deeds is erroneous. The said finding again overlooks the consistent stream of judgments from Fateh Chand Vs. Balkishan Dass AIR 1963 SC 1405 till the dicta of the Division Bench of this Court in Vishal Engineers Builders Vs. Indian Oil Corporation holding that Section 74 of the Contract Act merely provides the maximum compensation which could be given for breach of contract and without any evidence of loss, merely because of a penalty clause, such penalty cannot be awarded. 16. Thus, both the questions entailed in the appeal are decided in favour of the appellants/defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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