The main legal point established in the judgment is the liability of the defendant to hand over possession and pay outstanding dues due to default in payment as per the sub-license agreement.

JUDGMENT :

1. This is a suit filed by the plaintiff, Parsvnath Developers Ltd. which is a company incorporated under the provisions of the Companies Act, 1956, against the sole defendant, Vikram Khosla for recovery of monies and possession, with the following prayers:

“(a) Pass a decree of directing the defendant, their agents, heirs, representatives and successors to vacate the suit premises i.e the portion of the Parsvnath Metro Mall, admeasuring approximately 10,200 Sq.ft Super Area (Covered area being 8,500 sq. ft. i.e. efficiency of approximately 83.3%) comprising of 10 (ten) Shops/Outlets and 3 (three) kiosks on the First Floor situated at Parsvnath Mall, Games Village Metro Station on Indraprastha- New Ashok Nagar Corridor, New Delhi, and to handover the vacant possession of the same to the Plaintiff;

(b) Pass a Decree of Recovery in favour of the Plaintiff and against the Defendant, their agents, heirs, representatives and successors, for an amount of Rs. 2,42,47,498/- (Rupees Two Crores Forty Two Lakhs Forty Seven Thousand Four Hundred and Ninety Eight Only) along with interest @24% p.a. pendent-lite and future till realisation, payable by the Defendant to the Plaintiff in respect of outstanding dues towards the Sub License Fees, Electricity Charges, Service Tax, Mesne Profit and delay interest; and

(c) Any other order(s) that this Hon'ble Court may deem fit and proper.”

2. When this case came up for hearing for the first time on November 07, 2019 summons were issued to the defendant through all modes. On the second date of hearing, it was recorded that the service report was refused by one Pradeep, after which fresh summons were issued again. On the next date of hearing on March 02, 2020, the service report came back with the comments ‘refusal by wife of defendant’. Thereafter the matter was placed before Court by the learned Joint Registrar. This Court vide order dated March 13, 2020 proceeded ex-parte against the defendant, in view of deemed service. The question which arises is whether the plaintiff should be directed to lead ex-parte evidence. The Plaint having been verified and is also supported with affidavit / Statement of Truth on behalf of the plaintiff, and the defendant having been proceeded ex-parte no purpose would be served if the plaintiff was directed to lead ex-parte evidence. A Coordinate bench of this Court in the case of Satya Infrastructure Ltd. and Ors. v. Satya Infra and Estates Pvt. Ltd., 2013 (54) PTC 419 (Del), has held as under:

“4. I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-in chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction.”

3. I have heard the counsel for the plaintiff in respect of the reliefs prayed. The case of the plaintiff in the plaint is the following:

i. The plaintiff Co. entered into a Concession Agreement dated September 09, 2007 with the Delhi Metro Rail Corporation Limited (‘DMRC’ for short) whereby DMRC gave to the plaintiff a specified area at Games Village Metro Station on Indraprastha – New Ashok Nagar Corridor, New Delhi on a licence basis for a period of 30 years expiring on September 19, 2037 (Concession period) for development into a shopping mall/ complex by the name of ‘The Parsvnath Mall’, which the plaintiff was entitled to sub-license.

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