Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19.11.2024
+ RFA(COMM) 447/2024
RAJIV KUMAR .....Appellant
Through: Mr. B.D. Sharma and Mr. S.K.
Malhotra, Advs. alongwith appellant
in person
versus
JAWAHAR LAL VOHRA .....Respondent
Through: Mr. Anurag Ojha, Mr. D. N.
Chaturvedi, Mr. Deepak Somani and
Ms. Chanchal Gupta, Advs.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
HON'BLE MR. JUSTICE SAURABH BANERJEE
REKHA PALLI, J (ORAL)
CM APPL.66191/2024 (by respondent seeking modification of order dt.
21.10.2024)
CM APPL. 67196/2024 (by appellant for grant of time to deposit money
and file affidavit in compliance of order dt. 21.10.2024)
1. These are two applications, the first filed by the respondent seeking
modification of order dated 21.10.2024 insofar as it does not indicate that
the appellant would also withdraw his pending suit being
CS(COMM)387/2024, pending before the District Judge, Commercial-06,
Tis Hazari Courts, Delhi, wherein he had sought recovery of a sum of
RFA(COMM) 447/2024 Page 1 of 6
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Digitally Signed
By:BABLOO SHAH
Signing Date:21.11.2024
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Rs.13.50 lakhs towards cost of renovation purportedly carried out in the suit
property. The plea of the respondent is that once the parties had arrived at a
settlement with the appellant undertaking to vacate the premises on or before
30.04.2025 and pay a sum of Rs.25 lakhs towards arrears of mesne profits
alongwith electricity, GST and water charges, he could not be permitted to
prosecute his claim for recovery of the amount purportedly spent by him
towards renovation of the suit property.
2. The second application being CM APPL.67196/2024 has been filed
by the appellant seeking extension of time to file the affidavit of undertaking
in terms of order dated 21.0.2024 as also to pay the amount towards the
arrears of maintenance which was required to be paid in three installments.
3. At the outset, we may note that the present appeal was filed assailing
the judgment and decree dated 26.04.2024 passed by the learned District
Judge, Commercial Courts, Central District, Tis Hazari Courts, New Delhi
in CS(COMM)2675/2022. Vide the impugned order, the suit for possession
and recovery of arrears of mesne profits filed by the respondent/plaintiff was
decreed by the learned Trial Court. On 21.10.2024, when the appeal was
listed before this Court for preliminary submissions, the learned counsel for
the appellant had argued the appeal at length but was unable to deny that the
appellant had entered into the possession of the subject property i.e. shop at
Ground Floor portion towards Street no.28 of built-up property bearing
no.3269-3271/27-28, Beadon Pura, Karol Bagh, New Delhi-110005,
admeasuring 250 sq. ft., as a lessee under the respondent/plaintiff as also the
fact that the appellant had defaulted in making payment of due rent and
mesne profits. Further, there was no denial by the appellant that he had been
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served with a legal notice dated 15.04.2022 by the respondent thereby
terminating his tenancy w.e.f. 15.05.2022.
4. In these circumstances, learned counsel for the appellant upon
realising that the appeal was meritless, had on instructions from the
appellant who was present in Court, prayed that the appeal be disposed of
by granting the appellant time till 30.04.205 to vacate the suit property
subject to his paying a sum of Rs.25 lakhs towards arrears of mesne profits
to the respondent in three instalments commencing from 30.11.2024. The
appellant had further assured this Court that he would, w.e.f. 01.11.2024,
pay mesne profits @ Rs.50,000/- per month alongwith electricity, GST and
water charges till handing over of vacant possession of the suit property to
the respondent and also file an affidavit of undertaking in these terms within
a period of one week.
5. Consequently, this Court, with no objection from the respondent, had
granted time to the appellant to vacate the suit premises on or before
31.04.2025, subject to his filing an affidavit, within a period of one week to
undertake therein to pay a consolidated sum of Rs.25 lakhs towards arrears
to the respondent in three instalments. The relevant extracts of the said order
read as under:
“4. In the light of the aforesaid stand taken by the
parties and subject to the appellant filing an affidavit of
undertaking within a period of one week from today in the
aforesaid terms, the appeal along with pending
applications is disposed of by granting the appellant time
till 30.04.2025 to vacate the suit property. This would,
however, be subject to the appellant paying the
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Signing Date:21.11.2024
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consolidated sum of Rs.25 lakhs towards arrears as
earlier volunteered. This amount will be paid in three
instalments as under:-
(i) Rs.10 lakhs on or before 30.11.2024.
(ii) Rs.10 lakhs on or before 30.01.2025.
(iii) Rs. 05 lakh on or before 30.03.2025.
5. It is clarified that, additionally, the appellant will also
continue to pay to the respondent mesne profits @
Rs.50,000/- per month w.e.f.01.11.2024 besides
th
electricity, GST and water charges on or before 7 of
every month, till handing over of the physical and vacant
possession of the suit property i.e. shop at Ground Floor
portion towards Street no. 28 of built-up property bearing
no. 3269-3271/27-28, Beadon Pura, Karol Bagh, New
Delhi-110 005, admeasuring 250 Sq. ft., shown in the red
colour in the site plan Ex.PW1/1 to him.
6. The appellant will file his affidavit of undertaking to
this effect within a period of two weeks, specifically
undertaking that he will not create any third party rights
in the suit property or part with the possession thereof to
any third party.”
6. Admittedly, though the appellant continues to be in possession of the
suit property, he has, till date, neither filed the requisite affidavit nor paid
any amount towards mesne profits and has now moved an application
seeking extension of time for payment of arrears. Notably, even though the
appellant was required to pay mesne profits towards the month of
November, 2024 on or before 07.11.2024, he has given no justification as to
why the said amount has not been paid. There is also no reason forthcoming
for not filing the affidavit in terms of this Court’s order dated 21.10.2024.
7. Having considered the submissions of learned counsel for the parties
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and perused the record including the order dated 21.10.2024, we find that
the appellant is now trying to wriggle out of his oral undertaking given to
the Court and has, therefore, neither filed the affidavit which was required to
be filed within one week nor tendered any amount to the respondent towards
mesne profits for the month of November, 2024. We also find merit in the
respondent’s plea that the appellant having agreed to amicably resolve all his
pending disputes with the respondent qua the suit property, he could not be
permitted to pursue his claim by way of CS (COMM) 387/2024 to seek
recovery of a sum of Rs.13.5 lakhs towards purported renovation made by
him in the suit property.
8. In the light of this position emerging from the record, we have put to
the learned counsel for the appellant as to whether the appellant would be
willing to withdraw the suit being CS (COMM) 387/2024 instituted by him
and also file an affidavit undertaking to abide by his assurances given to this
Court on 21.10.2024.
9. Learned counsel for the appellant on instructions from the appellant,
who is present in Court submits that the appellant is neither willing to
withdraw the suit nor willing to file any affidavit but will clear the agreed
arrears of mesne profits of Rs.25 lakhs by paying a sum of Rs.50,000/- per
month towards arrears alongwith Rs.50,000/- towards future mesne profits.
His plea, therefore, being that the appellant should be permitted to continue
to occupy the suit property for a further period of fifty months i.e. till
30.12.2029.
10. In the light of this stand taken by the appellant which is not at all
acceptable to the respondent and in our view, rightly so, we have no other
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Signing Date:21.11.2024
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option but to recall the order dated 21.10.2024 and revive the appeal
alongwith accompanying applications for disposal on merits.
11. The applications are, accordingly, disposed of by recalling the order
dated 21.10.2024 and simultaneously reviving the appeal against the
impugned judgment/ order dated 26.04.2024 alongwith all accompanying
applications.
RFA(COMM) 447/2024
12. Having considered the factual matrix as also the grounds urged by the
appellant as noted in paragraph nos.3 & 4 hereinabove, we are of the view
that the appeal is absolutely meritless. We may also note that on 21.10.2024
while disposing of the appeal on the basis of the undertaking given by the
appellant, we had categorically observed in paragraph no.7 of our order that
there was no infirmity in the impugned judgment.
13. In the light of the aforesaid, the appeal is alongwith the accompanying
applications, dismissed with costs of Rs.50,000/- to be paid by the appellant
in favour of respondent within two weeks.
14. Needless to state, it will be now open for the respondent to pursue his
execution proceedings in accordance with law.
(REKHA PALLI)
JUDGE
(SAURABH BANERJEE)
JUDGE
NOVEMBER 19, 2024/So
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Signature Not Verified
Digitally Signed
By:BABLOO SHAH
Signing Date:21.11.2024
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