C.R. No. 8186 of 2016 (O & M). Case: Sadhana Foundation Vs Espire Infolabs Pvt. Ltd.. High Court of Punjab (India)

Judgment:

Gurmeet Singh Sandhawalia, J.

1. The petitioner-landlord challenges the order of the Appellate Authority, Gurgaon dated 07.11.2016 (Annexure P-5) whereby, the appeal of the respondent-tenant has been allowed and the order dated 17.09.2016 (Annexure P-3) making assessment of the provisional rent was set aside. Directions were accordingly issued to pass appropriate orders afresh as per the earlier order passed by the Appellate Authority on 22.01.2016 (Annexure P-2) for assessment of the provisional rent on the basis of some consensus, if any, failing which, the authenticity of the unregistered lease deed relied upon by the petitioner-landlord or the registered lease deed dated 01.09.2015 had to be done before any such assessment was made.

2. The reasoning which prevailed with the Appellate Authority was mainly that on an earlier occasion, the Appellate Authority had set aside the first order dated 23.12.2015 assessing provisional rent and directions had been issued to pass appropriate orders afresh on the basis of the consensus or after ascertaining the authenticity of both the lease deeds. On account of the finality inter se the parties, it was held that the subsequent assessment at ` 7,50,000/- per month was same as per the earlier order and, therefore, the earlier directions had not been complied with. Therefore, the provisional rent could not have been assessed when the parties were at dispute and the authenticity of both the lease deeds had to be taken into account. Another factor which prevailed with the Appellate Authority was that there was a reference by the Rent Controller to the word "fair rent" whereas, the issue was of assessing the provisional rent.

3. To appreciate the dispute, it would be necessary to also refer to the pleadings of the parties as such which have also been placed on record by way of Annexures.

4. The case of the petitioner-landlord in its petition filed on 01.12.2015 (Annexure P-6) was that being the trust, it was the landlord of the property bearing No. 486-487 situated at Phase 3, Udyog Vihar, Gurgaon which had been allotted to it by the HSIDC on 01.01.2013. The respondent had been put in as a tenant in the month of November, 2012 and the lease deed had been executed on 01.01.2013 whereby, the premises of the super built up area of 36,878 sq. ft. which comprised of the basement, ground floor, mezzanine floor, first floor and first floor (cafe), as shown as red in the map, had been leased out @ ` 50 per sq. ft. amounting to ` 18,43,900/-. Since the arrears of rent had not been paid which came to ` 6,26,92,600/- from 01.01.2013 to 30.10.2015, the eviction petition was filed by taking the plea that legal notices dated 30.09.2015 and 10.10.2015 had also been served upon them. The relevant terms of the lease deed which was to be for a period of 3 years read thus:-

   "1)

   1. That in consideration of the monthly rent hereby reserved and of the terms, conditions, covenants and stipulation contained herein, THE LESSOR do and doth hereby demise by way of lease unto THE LESSEE, the said Premises for an aggregate super built up area of 36,878 sq. ft. comprising of Basement for area approx. 11,519 sq. ft., Ground Floor for area approx. 4,961 sq. ft., Mezzanine Floor for area approx. 7,470 sq. ft., First Floor for area approx. 8,765 sq. ft., First Floor (Cafe) for area approx. 4,091 sq. ft. (as shown in Annexure II) at Property Number 486 - 487, Phase III, Udyog Vihar, Gurgaon - 122002, more particularly described in the Schedules hereunder written (hereinafter referred to as the "Said Demised Premises"). To hold the same for the terms of 3 years commencing from the date of signing of this lease deed i.e. 1st January 2013 ("lease commencement date"), subject to payment of monthly rent and service tax, as applicable, to be paid in advance on or before 7th day of each month as stated hereinafter, without any reduction but subject to Taxes Deducted at Source (TDS) under the provision of the Income Tax Act, 1961.

   2. THE LESSOR shall handover the actual, physical vacant and peaceful possession of the Demised Premises in bareshell to THE LESSEE on signing of the Lease Deed.

2. MONTHLY RENT:

   The LESSEE shall pay Rs. 50/- (Rupees Fifty only) per sq. ft. per month amounting to Rs. 18,43,900/- (Rupees Eighteen Lacs Forty Three Thousand and Nine Hundred Only) as monthly rent from 1st January 2013 ("Rent Commencement Date"), in advance on or before 7th day of each calendar month in advance. The rent is exclusive of Municipal Taxes. The Service Tax as applicable will be payable by LESSEE as extra.

   Failure on the part of THE LESSEE to effect the remittance in time will entail, without prejudice to other rights and remedies of THE LESSOR, its having to pay interest @ 12% per annum calculated on day to day basis, provided 15 days written notice is given by THE LESSOR to THE LESSEE and THE LESSEE continues to pay the rent within the additional period, which will also result into breach of this agreement.

   THE LESSEE shall also be liable to fulfill any and all procedural requirements as may be prescribed by the Central or the State Government/any local body/all other authorities in connection with the subject matter hereof."

5. It is further apparent to notice that from the above lease deed also, it would be apparent that just a bare shell of the building in question was handed over. As per Annexure IV, there was responsibility fixed on the lessee while he had to do the interior fit out works and to ensure proper signages and modification apart from how the electrical fittings had to be fixed.

6. The stand of the respondent-tenant in the written statement dated 18.02.2016 (Annexure P-8) was that the said lease deed was inadequately stamped and not registered and, therefore, could not be taken into reckoning. Applications had been filed for impounding of the lease deed and no relief could be granted to the landlord. Signatures of the tenant on the lease deed were forged ones and applications had also been moved for sending the same for scientific evaluation and comparison of signatures of Mr. Gagan Oberoi, the duly authorized person. The financial liability could not be affixed on the said lease deed. The service tax had not been deposited with the concerned statutory authorities by the landlord and no demand notice had been dispatched till the filing of the petition. Prior to the occupation of the premises, the same was not in a position to be let out and huge expenditure was required to make it capable to be utilized for operation as an I.T. Building. The officials of the tenant had communicated to the trustees of the trust that sum of ` 9 crores was required for the purpose of undertaking renovations, providing air conditioning, lighting etc. Ms. Sadhna Rai was the settler of the petitioner-Trust as she was the wife of Mr. Vinay Rai and was the mother of Amit Rai, who was the Chairman and Director of the respondent-tenant. It was admitted that keeping in view this relationship and understanding reached between the parties that the tenant would incur substantial expenditure in the building to make it capable of being used for the operations of an I.T. building and renovations were to be adjusted from the monthly rent to be mutually settled between the parties. Substantial expenditure was thus incurred by the tenant to establish the same with the latest equipment and standard and the premises were being run by the respondent as an I.T. office with approximately 300 employees working. The landlord had not taken any action for 3 years and was well aware that the respondent was using the building for an office and, thus, there was a clear arrangement as...