M/S NATHUS PASTRY SHOP & ANR. vs SUHAS CHAND GUPTA & ANR.
$~70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18.10.2023
+ CM(M) 1542/2023
M/S NATHUS PASTRY SHOP & ANR. ….. Petitioners
Through: Mr. Sanjeev Sindhwani, Sr. Adv. with Mr. Lalit Gupta, Mr. Priyansh Jain and Mr. Gaurav Sindhwani, Advs. along with Petitioner No. 2 in person.
versus
SUHAS CHAND GUPTA & ANR. ….. Respondents
Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. P.K. Rawal, Mr. Tarun Agarwal, Mr. Rishabh Sharma, Advs. for R-1.
%
CORAM:
HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
J U D G M E N T
MANMEET PRITAM SINGH ARORA, J (ORAL):
CM No. 54462/2023 (for urgent interim order)
1. The present application has been filed by the Petitioners seeking stay of the judgment dated 11.09.2023 passed by Principal District & Sessions Judge/RCT, South East District, Saket Courts, New Delhi in Misc DJ No. 194/2022 titled as Suhas Chand Gupta v. M/s Nathus Pastry Shop & Ors. and consequently, seeking a stay and operation of the eviction order dated 01.09.2023 passed in RCT No. 137/2016.
2. At the outset, learned senior counsel for the Respondent No.1 states that this application is not maintainable in these proceedings as the eviction order dated 01.09.2022 is not the subject matter of challenge in this petition.
2.1 He states that the Petitioners have filed a separate substantive petition being CM(M) No. 1668/2023 and this application could only be maintained in the said petition.
2.2 He therefore states that this application is liable to be dismissed.
3. In response, learned senior counsel for the Petitioners states that the matter is listed today before the Executing Court and the Respondent No.1 has prayed for appointment of bailiff by breaking open of locks.
3.1 He states to avoid multiplicity of proceedings and hardship to the Petitioner, considering he has already filed a substantive petition, interim protection order be granted, subject to payment of use and occupation charges by Petitioners as an interim measure.
Area in possession of the tenant
4. The Petitioners states that the area of the subject premises under their occupation at ground floor is 480 sq. feet approximately and an area of 400 sq. feet approximately at the mezzanine level.
4.1 The Petitioners states that the ground floor is being used for the purposes of sale of food, confectionary items, etc. and seating of the customers, whereas the mezzanine floor is used for baking the pastries and storage items.
5. The learned senior counsel for the Respondent No.1 states that though as per him the area in occupation of the Petitioners at ground floor and first floor is much larger but for the interregnum and for passing interim orders, the area as stated by the Petitioners be presumed to be correct for fixing the use and occupation charges.
6. Thus, though there is a dispute between the parties with respect to the exact area which is under the occupation of the Petitioners/tenant, however, as a matter of interim measure and in view of the urgency of the relief sought, with the consent of the parties, the submission made by the Petitioners with respect to the area under his possession is being accepted by this Court for the purposes of fixing use and occupation charges. The said figures of area in possession are accepted without prejudice to the rights and contentions of the Respondents.
Rate of use and occupation charges
7. The learned senior counsel for the Respondents has submitted a short note and relied upon a registered lease deed dated 04.10.2022 of Shop No. 37, Plot No. 1, Bengali Market, New Delhi for contending that the prevalent market rate of the ground floor is at Rs.800/- per sq. feet.
8. After lengthy arguments by both the parties, it has been agreed by both parties that the Petitioners herein will pay use and occupation charges at Rs.650/- per sq. feet for the ground floor and Rs.325/- per sq. feet for the mezzanine floor respectively.
8.1 The Petitioners are therefore liable to pay Rs.3,12,000/- (Rs. 650x 480 sq. ft.) for the ground floor and Rs.1,30,000/- (Rs. 325x 400 sq. ft.) for the mezzanine floor.
8.2 The Petitioner shall thus be liable to pay a total amount of Rs.4,42,000/- per month as use and occupation charges with effect from 01.09.2022, the date of the eviction order.
8.3 The Petitioners will pay arrears of use and occupation charges for the period of 01.09.2022 to 30.09.2023 (13 months), which amounts to Rs.57,46,000/- in seven (7) equal instalments. The first (1st) instalment will be paid on 07.11.2023. The remaining instalments will be paid on 07.12.2023, 07.01.2024, 07.02.2024, 07.03.2024, 07.04.2024 and last on 07.05.2024.
8.4 With respect to the use and occupation charges payable for the current month of October 2023, the Petitioner will pay the use and occupation charges on or before 25.10.2023; and the use and occupation charges for month of November 2023 on or before 07.11.2023 and so on until further orders from this Court.
Undertaking of the parties
9. The Petitioner No. 2 is present in person and he undertakes to the Court that the aforesaid payments will be made within the time sought from the Court.
9.1 The Respondent No. 1 is present in Court and he states that subject to the Petitioners making the said payments as per the undertaking given to the Court, he will not proceed further with the execution proceedings. He further undertakes that he will be refund the use and occupation charges to the Petitioners if the Petitioners succeed in their challenge to the eviction order dated 01.09.2022.
9.2 The undertaking of the Petitioner No. 2 and Respondent No. 1 is accepted by this Court and they are bound down to the same.
10. It is, however, made clear that if the Petitioners default in making payment of the instalments towards arrears and/or in making the payment of the current monthly use and occupation charges, the Respondents will be at liberty to proceed with the execution proceedings forthwith without seeking any clarification from the Court.
11. It is further directed that the Petitioners will remit all statutory taxes payable on the arrears and current use and occupation charges including GST in accordance with law.
12. In view of the aforesaid directions, issued with the consent of the parties and accepting the undertaking of the parties, the present application stands disposed of.
MANMEET PRITAM SINGH ARORA, J
OCTOBER 18, 2023
SU/sk
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CM(M) 1542/2023 Page 2 of 2