Manmohan Singh, J.@mdashVide order dated 25.04.2008, the defence of the defendant has been struck off. In the counter claim being Counter Claim no.49 of 2008, the following preliminary issue was framed on 25.04.2008:
Whether the counter claim filed by the defendant is liable to be rejected being barred under the provision of Order VII Rule 11 CPC? OPD.
2. As per the case of the plaintiff, the plaintiff company is the lessee of the property bearing no.3, Siri Fort Road, New Delhi comprising entire ground floor except the garage and entire basement of the said property and the said property was initially leased to the plaintiff by the lessor, M/s. Sushant Builders Pvt. Ltd., B-109, Defence Colony, New Delhi vide lease deed dated 14.03.2003, duly registered on 17.03.2003 as registration no.2040 in book No.I, Vol.no.3268 at page nos.193 to 199 with the office of the Registrar-V, New Delhi.
3. Thereafter M/s. Sushant Builders Pvt. Ltd. sold the property to one M/s. Prime Time [India] Limited and had attorned the tenancy in their favour. The plaintiff is having the rights to further sublet the leased property and the lease of the plaintiff is subsisting and valid till date.
4. It is further stated that the defendant is a limited company under the Companies Act, 1956 and is engaged in the business under the name and style of M/s. Senior Media Ltd., 1/1, Shanti Niketan, New Delhi-110021.
5. The plaintiff vide a licence agreement dated 09.05.2005 gave on licence the property no.3, Siri Fort Road, New Delhi comprising the entire ground floor except the garage and the entire basement of the said property to the defendant and the defendant agreed to pay the usage charges @ Rs. 3,60,000/- p.m. for a minimum usage of 225 hours in a calendar month and Rs. 4,00,000/- p.m. being the maximum limit of usage charges subject to the terms and conditions as stated in the agreement. As per the said agreement, the licence commenced from 9th day of each calendar month and ends on the 8th day of the next month.
6. It is further stated that under the said agreement, the defendant had deposited a sum of Rs. 10 lacs as an interest free refundable deposit vide cheque no.412601 drawn on Syndicate Bank, no.2, Kaushalya Park, Hauz Khas, New Delhi.
7. The defendant has not been regular in paying its monthly usage charges and despite repeated requests, the defendant has not provided the statement of accounts stating the details of the usage charges.
8. The case of the plaintiff is that the defendant had issued four cheques towards payment of the monthly usage charges to the tune of Rs. 2,84,724/- each dated 14.03.2006, 14.04.2006, 14.05.2006 and 14.06.2006 respectively, which were returned as dishonoured by the bankers of the defendant and was in complete disregard and breach of the terms of the licence as agreed by the defendant.
9. It is further submitted by the plaintiff that the defendant being the licensee under the plaintiff in respect of the said premises has not paid the usage charges of the premises w.e.f. March, 2006 which is in arrears and have also failed to provide the statement of monthly usage charges as per the terms and conditions as stated in the agreement. Despite the repeated demands of the plaintiff, the defendant is deliberately neither paying the monthly usage charges nor the arrears nor providing the statement of accounts to the plaintiff.
10. In view of the above circumstances, the plaintiff filed the suit for recovery of possession, arrears of usage charges along with pendente lite and future interest and for mesne profits, damages and costs etc against the defendant.
11. The plaintiff�s application under Order 39 Rule 10 CPC being IA no.11084/2006 was allowed in favour of the plaintiff vide order dated 19.03.2007 wherein the defendant was directed to make the payment of use and occupation charges to the plaintiff @ Rs. 3,60,000/-. The defendant was granted four weeks� time to deposit the arrears and further ordered that the defendant shall continue to pay month by month use and occupation charges at the same rate to the plaintiff on or before 7th of each English calendar month.
12. Another application was filed by the plaintiff u/s 151 CPC thereby seeking the direction that the defence of the defendant be struck off on account of non-compliance of the orders passed on 19.03.2007. While disposing of the said application, further six weeks� time was granted to the defendant to deposit all the arrears in the court failing which the defence of the defendant shall be struck off.
13. The said order was also not complied with by the defendant, therefore, vide order dated 07.01.2008 the defence of the defendant was struck off. Now coming to the question of preliminary issue framed vide the said order dated 25.04.2008.
14. I have heard the learned Counsel for the parties. In the counter-claim, the contention of the defendant is that the defendant is the sister/associate concern of M/s. Sushant Builders Pvt. Ltd. and the Managing Director of the defendant company and that of M/s. Sushant Builders Pvt. Ltd. is one and the same person. The defendant company is a licensee of M/s. Sushant Builders Pvt. Ltd., which is the owner of the suit property and is in use and occupation of the suit premises comprising basement and ground floor of the property no.3, Siri Fort Road, New Delhi.
15. It is further contended that the plaintiff was never in possession of the suit property under the alleged lease agreement dated 14.03.2003 and by which the plaintiff claims to have rented the said property at a rent of Rs. 2400/- p.m. with a right to further sublet the said property. The rent of the suit property even at the time of creation of alleged lease deed dated 14.03.2003 was substantially more than Rs. 2400/- p.m. as the said property comprises the entire ground floor except the garage and the entire basement of the property constructed on a plot of land admeasuring 500 sq.yds. located at the main Siri Fort Road in South Delhi.
16. It is further contended that it is beyond imagination that the said property should have been let out on a rent of Rs. 2400/- p.m. to the plaintiff by the sister concern of the defendant on 14.03.2003 and no possession of the property was actually and peacefully ever handed over to the plaintiff under the said lease deed thus, the possession at all time was with M/s. Sushant Builders Pvt. Ltd. even prior to and after the execution of the lease deed dated 14.03.2003.
17. It is further contended by the defendant that in order to cover up some financial transaction between the plaintiff and the said M/s. Sushant Builders Pvt. Ltd., a camouflage agreement was created under which the defendant was shown allegedly to be the licensee of the plaintiff and not that of M/s. Sushant Builders Pvt. Ltd.
18. In the counter claim, the defendant has prayed for passing a decree of declaration to the effect that the lease deed dated 14.03.2003 and the license agreement dated 09.05.2005 relied upon by the plaintiff are illegal, void, without any consideration and are not binding upon the defendant.
19. In reply to the counter claim, the plaintiff has specifically denied that the defendant company is the sister concern or associate concern of M/s. Sushant Builders Pvt. Ltd. It is stated that by having some person as the Managing Director of the two companies cannot be said to be the sister concern. It is also denied specifically that the defendant company is the licensee of M/s. Sushant Builders Pvt. Ltd. or the said company is the owner of the said premises.
20. It is averred in the reply to the counter claim that the owner of the said property in question, where the licensed premises is situated, is owned by M/s. Prime Time [India] Ltd. and the plaintiff is the registered lessee having right to further sublet the leased property. The defendant is, therefore, licensee under the licence agreement dated 09.05.2005 under the plaintiff on the terms and conditions stated therein.
21. Learned Counsel for the plaintiff has referred the decision reported as
16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. (See T. Arivandandam v. T.V. Satyapal.)
22. Another judgment reported as
23. I have gone through the pleadings of the parties as well as documents placed on record, it appears very clearly that the said property was leased out to the plaintiff by the lessor, M/s. Sushant Builders Pvt. Ltd., vide the lease deed dated 14.03.2003, which was registered on 17.03.2003. The extract of the Resolution of the Board Meeting dated 01.03.2003 establishes the same.
24. It also appears from the record that M/s. Sushant Builders Pvt. Ltd. sold the property to M/s. Prime Time [India] Ltd., and has attorned the tenancy in their favour. It also appears that the plaintiff had a right to sublet the leased property by virtue of letter dated 01.03.2005 and the plaintiff vide the lease agreement dated 09.05.2005 leased out the property comprising entire ground floor except garage and the entire basement of the said property to the defendant, who agreed to pay the usage charges @ Rs. 3,60,000/- p.m. for a minimum usage of 225 hours in a calendar month and Rs. 4,00,000/- p.m. being the maximum limit of usage charges subject to the terms and conditions as stated in the agreement.
25. Not only that defendant had deposited a sum of Rs. 10 lacs as an interest free refundable deposit by cheque. At the initial stage, without any doubt the defendant had issued four cheques, the details of which have been given hereinabove after deducting TDS, however, the said cheques were admittedly dishonoured.
26. In view of the aforesaid facts and circumstances, it does not lie in the mouth of the defendant that the defendant is not the licensee of the plaintiff in respect of the said premises. The lease deed dated 09.05.2005 speaks for itself. It is a clear case of res ipsa loquitur where the things speak for themselves. In my considered opinion, the defendant is now stopped from challenging the title of the plaintiff in the light of Sections 116 and 117 of the Indian Evidence Act as per well settled position of law reported as Kamalam and Ors. v. Sivaprakasam Pillai and Ors. JT 2006 [2] SC 479 ,
27. Under these circumstances, the counter claim filed by the defendant is not maintainable. 28. The preliminary issue framed on 25.04.2008 is decided in favour of the plaintiff and against the defendant. The counter claim filed by the plaintiff should also be struck off by this order. Ordered accordingly. 29. The defendant is liable to pay a cost of Rs. 25,000/- to be deposited in the Delhi High Court Legal Services Committee within four weeks from today.
