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High Court Of Delhi
UBEROISONS (MACHINES) LIMTED - Appellant
Versus
SAMTEL COLOR LIMITED - Respondent
Suit 411 of 1992
Decided On : 05/16/2003
Held:
The security is paid to the landlord for the purpose of guarantee that no damage is done by the tenant nor any fixtures and fittings are removed and every landlord is entitled to use the security for repairing the damages done by the tenant. Though the security cannot be adjusted towards arrears of rent but in case the tenant hands over possession of the premises without any damage, the landlord has no right to retain the security. In such an event the landlord can be liable to pay the interest as any amount retained by the landlord unauthorisedly by way of security incurs liability of interest. The stand taken by the defendant in respect of installation of A.C units etc and installations of additional fittings and fixtures shows that he has done this for the improvement of the premises for making the utmost use of the premises for his business purposes. Though Local Commissioners were also appointed for ascertaining damages done to the premises but the very fact that additional fittings and fixtures and A.C units were installed with the full knowledge of the plaintiff and the plaintiff did not take any action for making such provision in the premises shows what was done in the premises was with the approval of the landlord. It appears that main concern of the plaintiff was restoration of electricity connection. According to the defendant when he stopped using the premises he also disconnected the electricity connection so as to avoid hazardous incident and also to avoid misuse of electricity by chowkidars. Somehow or the other when the plaintiff insisted for restoration of electricity, the defendant restored the same.
The tenant has an independent remedy to recover the security but in no way can retain the possession of the premises on the plea that until and unless security is refunded, possession will not be handed over. Such a possession by the tenant is a possession for which he has to pay the rent as the premises could not have been put in use by the landlord nor have been let out by the plaintiff. No tenant can take the defense that he is entitled to retain the possession of the premises unless security amount is refunded to him. When there is an independent remedy to recover this amount, the retention of possession cannot be justified. In order to avoid the liability of rent, the tenant has the obligation to handover the possession. It is immaterial whether premises was put into use by the defendant/tenant or not. What is material was whether possession is retained by him or not.
In view of this position of law, the suit of the plaintiff has to be decreed in respect of recovery of arrears of rent up to the period the possession was retained by the defendant. Plaintiff has not proved its case as to how much damage was done to the premises by the defendant. The additional fittings, fixtures and A.C units were installed by the defendant in the premises with the approval of the plaintiff, the question of causing damage to the premises does not arise nor the plaintiff could have insisted the defendant to handover possession of the premises in original position.
( 1 ) THIS is a suit for possession as well as recovery of arrears of rent, mesne profits-and damages. Suit for possession has become infructuous as during the pendency of the suit, possession was handed over by the defendant to the plaintiff. The suit that survives is for recovery of rent, mesne profits and damages. The relevant facts pleaded in this regard are as under:
( 2 ) ON 27th November, 1989, the plaintiff and defendant entered into a lease agreement in respect of the basement floor along with a toilet on the ground floor of building No. 21, Community Centre, New Friends Colony, New Delhi (hereinafter referred to as the demised premises ). The lease was created for a period of 3 years beginning from 1st September, 1989 and was duly registered with the Sub- registrar, New Delhi. Some of the important terms as mentioned in the lease agreement are as under:
(1) That the Lessor shall give and the Lessee shall take on rent the demised premises paying a monthly rent of Rs. 36,000/- (Rupees thirty six thousand only) exclusive of water and electricity charges but inclusive of all existing taxes, rates and cesses. However, any future increase in the applicable taxes, rates or cesses will be borne by the Lessee. (2) That the Lessee has paid to the Lessor six months rent in advance amounting to Rs. 2,16,000/- on the signing of this agreement. The lessee will pay a further sum of Rs. 2,16,000/- equivalent to six months advance rent to the Lessor on 1st April, 1990. The said advance rent will be adjusted during the entire period of the lease as follows:- (a) During the period 1. 9. 1989 to 31. 3. 90 at the rate of Rs. 6,000/- per month. (b) During the period 1. 4. 90 to 31. 8. 92 at the rate of Rs. 13,450/- per month.
( 3 ) THAT the Lessee has deposited with the Lessor a sum of Rs. 2,16,000/- (Rupees two lakhs sixteen thousand only) as interest-free security deposit towards fittings and fixtures provided in the Demised Premises as also for due and faithful performance of the terms contained herein. The Security deposit will be refunded to the Lessee by the Lessor at the time of the vacation of the Demised Premises and handing over of the possession thereof with the fittings and fixtures in the same condition as received, normal wear and tear excepted. The Lessor will have the right to deduct any valid and lawful claim therefrom, towards loss of fittings and fixtures. The Lessee will however, not be entitled to deduct or adjust the said amount of security deposit towards dues of rent, which will be paid in the manner provided in Clause 2 of this agreement.
14. That at the expiry of the term of this Lease including renewal thereof or on earlier termination of this lease, the lessee shall handover the vacant possession of the Demised Premises in as good condition as it was in when the Lessee obtained possession, to the Lessor against the refund of the Security deposit as provided in Clause 3 of this agreement. " 3. The defendant gave notice dated 27th December, 1990 to the plaintiff saying that they intended to vacate the demised premises on completion of three months. It was received by the plaintiff on 28th December, 1990. On 29th March, 1991 the authorized representative of the plaintiff went to the demised premises to take over the vacant possession and for settlement of accounts and at the time of inspection of the site. On 29. 3. 91 itself plaintiff alongwith Shri Sen Gupta, Company Secretary of the defendant, found that the demised premises had not been brought back to the original condition in which the same were let out, the partitions and false ceiling had not been removed, the wiring was damaged and exposed and the floor required repairs. It was further found that the electricity connection had been disconnected by DESU who had sealed the meter. The plaintiff wrote letter dated 1st April, 1991 in regard to this event emphasizing that the defendant would be liable to pay the monthly rent till vacant possess
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