RFA(COMM) No.12/2024

Page 1 of 8

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA(COMM) 12/2024, CM Nos.2961-2963/2024

M/S GURPRAKASH ENTERPRISE & ORS. ..... Appellants

Through:

Mr.Gurvinder Singh, Advocate.

versus

KAILASH SEWANI & ANR. ..... Respondents

Through:

None.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

HON’BLE MR. JUSTICE RAVINDER DUDEJA

VIBHU BAKHRU, J.

1.

The appellants have filed the present appeal impugning the judgment

dated 21.08.2023 (hereafter ‘the impugned judgment’) passed by the

learned Commercial Court in CS (Comm.) No. 123/2023 captioned Kailash

Sewani v. M/s Gurprakash Enterprise & Ors. By the impugned judgment,

respondent no.1’s application under Order XII Rule 6 of the Code of Civil

Procedure, 1908 (hereafter ‘CPC’) was allowed. And, the suit filed by

respondent no.1 was decreed.

2.

The aforementioned suit was filed by respondent no.1, inter alia,

seeking possession of the property bearing no.D-35, Shop No. 4, Central

Market, Lajpat Nagar-II, New Delhi-110024 (hereafter ‘the demised

property’), and recovery of arrears of rent, mesne profits and damages from

the appellants and respondent no.2.

3.

Respondent no.1 is the owner of the demised premises and had

executed a Lease Deed dated 12.08.2021 (hereafter ‘the Lease Deed’) in

Digitally Signed

By:DUSHYANT

RAWAL

Signing Date:24.01.2024

Signature Not Verified

RFA(COMM) No.12/2024

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favour of appellant no.1 in respect of the demised property for a period of

six years commencing from 01.08.2021. In terms of the Lease Deed, the rent

for the suit property was fixed at ₹1,50,000/- per month excluding electricity

and water charges. The Lease Deed also provided for an annual increase of

5% in the monthly rent.

4.

Appellant no.1 is a partnership firm and was arrayed as defendant

no.1 in the suit. Appellant nos.2 and 3 are constituent partners of appellant

no.1 firm and were arrayed as defendant nos.2 and 4 in the suit. Respondent

no.2 claims that he was a partner in appellant no.1 firm but has since

resigned. He was arrayed as defendant no.3 in the said suit.

5.

Respondent no.1 (hereafter also referred as ‘the plaintiff’) had

claimed that the defendants (the appellants and respondent no.2) had failed

to pay the rent for the demised premises. Respondent no.1 claimed that the

cheques issued for payment of rent for the months of July, August and

September, 2022 were dishonored with the noting to the effect that the

payment had been stopped by the drawer (defendant no.1/appellant no.1).

6.

Respondent no.1 claimed that it had approached the appellants and

respondent no.2 on several occasions. However, the appellants had failed

and neglected to honour their commitments. In the aforesaid backdrop,

respondent no.1 issued a legal notice dated 26.09.2022 terminating the Lease

deed of the demised premises. Respondent no.1 demanded possession of the

demised premises as well as sought damages, penalty and mesne profit in

terms of the Lease Deed. Respondent no.1 further claimed that the

appellants and respondent no.2 had deducted tax at source (TDS) – as the

Digitally Signed

By:DUSHYANT

RAWAL

Signing Date:24.01.2024

Signature Not Verified

RFA(COMM) No.12/2024

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cheques issued for payment of rent for the months of July, August, and

September, 2022 were for amount of rent less TDS – however, the

appellants and respondent no.2 had failed to deposit the same with the

Income Tax Authorities.

7.

In the aforesaid backdrop, respondent no.1 sought a decree for

possession of the demised premises as well as recovery of arears of rent at

the rate of ₹1,50,000/- per month from July 2020 till termination of the

lease. Respondent no.1 also sought recovery of damages/mesne profit for a

sum of ₹1,50,000/- at the rate of ₹5,000/- per day in terms of the Lease

Deed. Additionally, respondent no.1 sought a decree for recovery of pe