VANDANA YADAV & ANR. vs DEEPA
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 15.01.2024
+ FAO (COMM) 241/2023 and CM APPL. 60742/2023
VANDANA YADAV & ANR. ….. Appellants
Through: Mr Mayank Wadhwa and Mr Abhishek Wadhwa, Advocates.
versus
DEEPA ….. Respondent
Through: Mr Rajeev Lochan Mahunta, Mr Kaushal Chandra Jha and Mr Nain Chauhan, Advocates.
CORAM:
HON’BLE MR. JUSTICE VIBHU BAKHRU
HON’BLE MS. JUSTICE TARA VITASTA GANJU
VIBHU BAKHRU, J.
1. The appellants have filed the present appeal impugning an order dated 13.09.2023 (hereafter the impugned order) passed by the learned Commercial Court disposing of the appellants application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereafter CPC) and the respondents application under Order XXXIX Rules 1&2 of the CPC in CS(COMM.) No. 346/2022 captioned Deepa v. Vandana Yadav and Ors.
2. In terms of the impugned order, the appellants application under Order VII Rule 11 of the CPC was rejected. The appellants contention that the dispute involved in the suit was not a commercial dispute and therefore the suit was not maintainable, was rejected. The respondents prayer for the interim relief was allowed and the appellants were restrained from alienating the property described as H-308, Basement, New Rajinder Nagar, New Delhi-110060 admeasuring 1800 square feet (hereafter the subject property).
3. The respondent had preferred the afore-mentioned suit claiming possession, recovery of rent, damages and mesne profit in respect of the subject property.
4. The respondent had acquired the subject property by a registered Sale Deed dated 19.12.2012. It is the respondents case that the subject property was let out to the appellants on an oral month to month tenancy during the second week of December, 2016.
5. The appellants state that they have been running a gym and fitness centre from the subject property in terms of an oral understanding with the respondent.
6. The appellants claim that they had paid a sum of ?20,00,000/- to the respondent for purchase of the subject property with the understanding that they would not be required to pay any rent for occupying and carrying on their activities from the subject property.
7. Appellant no.2 has also filed a suit for recovery of the sum of ?6,70,000/-, which is pending.
8. According to the respondent, the demised premises was let out at a monthly rent of ?48,000/- with 5% annual increase, if the lease was extended beyond the period of 11 months. The tenancy had commenced on 01.01.2017, which was also the date when possession of the subject property was handed over to the appellants.
9. The respondent had filed an application under Order XXXIX Rules 1 and 2 of the CPC seeking certain interim reliefs. The appellants filed an application under Order VII Rule 11 of the CPC on the ground that the disputes involved were not commercial disputes and therefore, were not covered under the Commercial Courts Act, 2015. According to the appellants, the Court had no jurisdiction to entertain the said suit. The appellants application under Order VII Rule 11 of the CPC was rejected and the respondents application under Order XXXIX Rule 1 and 2 of the CPC was allowed in terms of the impugned order. The appellants seek to assail the same on the same grounds as urged before the learned Commercial Court.
10. Insofar as the appellants contention that the dispute involved is not a commercial dispute is concerned, the same is ex facie untenable. According to the appellants, they have leased the subject property in question for operating a gym and a fitness centre. It is also asserted that they have been carrying on the said activity from the subject property. In view of the above, the contention that the dispute is not a commercial dispute because the permissible use of the subject property is residential, is ex facie unmerited. The permissible use of the subject property under the Master Plan for Delhi – 2021 is not relevant considering whether the dispute involved is a commercial dispute. Since it is the appellants case that they had leased the subject property for carrying on the commercial activity from the subject property, the dispute involved would fall within the scope of a commercial dispute within the meaning of section 2(1)(c) of the Commercial Courts Act 2015.
11. The respondent had, inter alia, sought an order restraining the appellants from alienating, transferring or in any manner creating third party rights in respect of the subject property. Since, it is an admitted case that the appellants are not the owners of the subject property, the order of the learned Commercial Court directing the appellants to refrain from creating any third-party rights in respect of the subject property, cannot be faulted. The learned Commercial Court had also directed the appellants to deposit rent through a demand draft in Court, and further directed the deposit of the entire arears of rent within four weeks from the said date.
12. According to the appellants, the rent for the premises is ?25,000/- per month and the same is required to be adjusted from a sum of ?20,00,000/- paid earlier, which the appellants claim was provided as a security.
13. The present appeal was listed before this Court on 23.11.2023 and on that date, the learned counsel for the appellants had made a statement that the appellants have unimpeachable proof of payment of ?20,00,000/- to the respondent. Therefore, they are not liable to make any payment as claimed by the respondent. In view of the said statement, this Court had directed that all the relevant material evidencing payment of ?20,00,000/- to the respondent be filed by the appellants before the next date of hearing. It is now transpires that the appellants have no material or documentary evidence to support payment of a sum of ?20,00,000/- as claimed.
14. In compliance with the said order, the appellants have filed an affidavit on 23.11.2023 enclosing a screenshot of a WhatsApp chat, which refers to a security amount of ?20,00,000/- and, inter alia, seeking refund of the said amount. This message claimed to have been sent by appellant no. 2 to the respondent, also indicates the agreement to pay a rent of ?40,000/- per month. The WhatsApp chat indicates that the respondent had purportedly stated that she would accept a rent of ?25,000/- for a period when the appellants were unable to carry on their work and ?40,000/- after they had commenced their work.
15. The aforesaid chat does not indicate that the appellants had paid a sum of ?20,00,000/- as claimed. It is also evident that the appellants had accepted that they were liable to pay the rent.
16. Clearly, the appellants cannot be permitted to continue to occupy the subject property without payment of any rent. Since it is appellants admitted case that they were liable to pay a rent ?25,000/- per month, the appellants will deposit a sum of ?25,000/- per month with the Trial Court including arears of the said amount within a period of one week from today.
17. We also consider it apposite to impose costs quantified at ?50,000/-, considering that the appellants contention that the dispute involved in the suit is not a commercial dispute, is insubstantial and also considering that an ex facie erroneous claim was made on behalf of the appellants before this Court on 23.11.2023 that they had unimpeachable proof of payment of ?20,00,000/- to the respondent.
18. It is also contended on behalf of the respondent that if the adequate security is not provided, the appellants may not be able to recover the entire amount as claimed. We do not propose to make any observations in this regard, however, we clarify that the respondent is not precluded from filing an appropriate application under Order XXXVIII Rule 5 of the CPC, if the conditions for moving such application are satisfied.
19. Needless to state that any deposit made by the appellants would be without prejudice to the rights and contentions of the parties.
20. The appeal is disposed of in the aforesaid terms. The pending application is also disposed of.
VIBHU BAKHRU, J
TARA VITASTA GANJU, J
JANUARY 15, 2024
RK
FAO (COMM) 241/2023 Page 1 of 1