A tenant cannot avoid payment obligations under a lease due to financial distress unless a clear force majeure clause exists, and prior conduct may preclude claims of non-liability.

JUDGMENT

1. A petition under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the Act") has been filed by the petitioner seeking interim measures for directing the respondent to secure the outstanding rents.

2. The facts in brief are that the petitioner is the owner of the building bearing Industrial Plot No.445, Phase-V, Udyog Vihar, Gurugram, Haryana and has leased out ground to fourth floor vide Lease Deed dated 28th September, 2017 and the liability to pay rent was to commence from 15th November, 2017. There was a lock-in period of three years. Subsequently Addendum Lease Deed was executed on 07th December, 2017 under which, the rent commencement date was extended till 10th January, 2018. Simultaneously, the possession of the Lease Deed was handed over to the respondent. The monthly rent of the premises was:

(i) Rs.32,10,000/- for the first three years w.e.f 15th November, 2017,

(ii) Rs.36,91,500/- for the second three-year term w.e.f 15th November, 2020;

(iii) Rs.42,45,225/- for the third-three year term w.e.f 15th November, 2023; and

(iv) Rs.48,42,009/- for the fourth-three year term w.e.f 15th November, 2026.

3. The petitioner has claimed that the complete payment of rent has not been received from April, 2020 till March, 2021 and again from January, 2022 to May, 2022, despite the premises having been further sub-leased by the respondent. The amount due under the Lease Deed till May, 2022 is Rs.3,45,63,515/- along with interest of Rs.58,18,234/- calculated @ 12% per annum.

4. The petitioner has further stated that the front portion of the fifth floor was also leased out to the respondent vide Lease Deed dated 22nd May, 2019 at a monthly rent of Rs.4,60,000/- for the first two years w.e.f 01st June, 2019, Rs.5,06,000/- for the second two year w.e.f 01st June, 2021, Rs.5,56,600/- for the fifth year w.e.f 01st June, 2023. The respondent, however, has failed to make any payment towards the rent since the date of taking possession on 22nd May, 2019. A total sum of Rs.6,50,36,268/- is due and payable till May, 2022 towards rent along with interest @ 12% per annum, which the respondent has failed to pay despite continuous follow up.

5. The petitioner has sent two Legal Notices dated 16th February, 2022 pertaining to non-payment of rent in respect of the two Lease Deeds. The respondent has replied vide letter dated 12th May, 2022 and has given its own concocted version of the terms of the Lease Deeds and has claimed that the petitioner owes them sums of money towards maintenance charges in respect of the fifth floor Lease Deed. No payments have been made by the respondent towards rent for the tenanted premises on the fifth floor on the pretext that the petitioner had failed to procure the Occupancy Certificate (OC) within the prescribed timeline in accordance with recital B in the Lease Deed which provided that the OC was to be obtained within thirty days plus a grace period of fifteen days from the date of execution of the Lease Agreement. It is asserted that the respondent has not only been in possession of the suit premises irrespective of the OC Certificate but has even sub-leased the same which amounts to waiver of the performance of Recital B by conduct by the respondent. Reliance has been placed on M/s Motilal Padampat Sugar Mills Co. (P.) Ltd. vs. State Of Uttar Pradesh And Ors., 1979 SCR (2) 641 and Kalpraj Dharamshi and Ors. vs. Kotak Investment Advisors Ltd. and Ors., (2021) 10 SCC 401.

6. It is claimed that the respondent had occupied the fifth floor despite being aware that the OC had