TaxTMI 
TaxTMI 
2017 (9) TMI 1945
X X X X Extracts X X X X
X X X X Extracts X X X X
....he respondent is granted liberty to pay the said amount in five equal monthly installments on 7th day of every calendar month, subject to furnishing of an undertaking that the respondent shall pay the amount every month positively and in case of any default, the entire balance amount shall be paid along with interest at the rate of 18% per annum. The first installment shall be paid on 7th October, 2016 and remaining on 7th of every succeeding month. He shall also give an undertaking to pay the actual electricity and water charges against the bill to the petitioner within one month from the date of payment of fifth installment. The petitioner would provide the copies of the bills to the respondent within two weeks from today. In failure to comply the above referred directions and in the absence of undertaking or in failure to pay first installment, the petitioner would be entitled to recover the entire amount by way of filing of the execution petition." 2. The dispute between the parties arose out of the Lease Deed dated 27.03.2014 executed between them. In terms of the Lease Deed (hereinafter referred as 'Lease Deed'), the appellant had taken on lease basement, ground floo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... lease through legal notice dated 16.09.2015. It was the case of the respondent that in terms of Clause 6 (e) of the Lease Deed, as the appellant had failed to hand over the vacant possession of the premises inspite of termination of the lease, the respondent was further entitled to claim a sum of Rs. 2 lacs per day as liquidated damages. The respondent, therefore, claimed the following reliefs in the petition under Section 9 of the Act: "a) Direct to respondent to pay the outstanding rents of the amount of Rs. 2,30,44,960/- along with interest; b) In alternative direct the respondents to secure the outstanding amount of Rs. 2,30,44,960/- along with interest by furnishing appropriate security; c) To direct the respondent to vacate the premises forthwith; d) To restrain respondent from alienating or creating any third party rights or interest in the premises leased to the respondent by the petitioner; e) to pass direction for the attachment of respondent account no. 1220763000510 HDFC Bank, M-3, Outer Circle, Super Bazar, Connaught Place, New Delhi. f) pass any other or further order as deem fit and in the interest of justice. " 4. The appellant in its reply and even be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1,30,44,960/-. We quote paragraph 12 from the appeal FAO (OS) 307/2016, which reads: "12. That in the said petition the Hon'ble Single Judge vide its Judgment dated 29/04/2016 was pleased to pass directions, directing the Appellant to pay a sum of Rs. 13,04,490/- (though the amount should have been Rs. 1,30,44,960/-) towards rent as per lease deed from November, 2015 till 30th April, 2016 within two weeks of the said judgment alongwith an undertaking to be filed by way of affidavit within the same period of time that the Appellant would continue to pay the agreed rent regularly without any failure. It was further directed that in case of failure to comply the said direction, the Respondent (Appellant herein) shall handover the vacant possession of the leased premises to the Petitioner (Respondent herein) after the expiry of two weeks. 8. Learned Single Judge had also directed the appellant to continue to pay the agreement rent regularly without any failure. 9. As for the claim of the respondent for damages @ Rs. 2 lacs per day and also the claim of the appellant with regard to the amount spent by it, Learned Single Judge directed that the same would be raised before the Ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hough it is correct that Arbitral Tribunal shall not be bound by the CPC i.e. Code of Civil Procedure, 1908, as held by the Supreme Court in Arvind Construction Company Pvt. Ltd. v. Kalinga Mining Corporation & Ors., 2007(6) SCC 798, general rules that govern and guide the Court while considering grant of an interim injunction are attracted even while dealing with an application under Section 9 of the Act. 16. In Ajay Singh (supra) it has been held that Section 9 grants wide power to the Court in fashioning an appropriate interim order. Thus, it is correct that in exercise of such power, the Court should be guided by known principles, equally, the Court should not find itself unduly bound by the text of Section 9 of the Act rather it is to follow the underlying principles. 17. Order XV-A of CPC, applicable to Delhi, provides that in any suit of a owner/lessor for eviction of an unauthorized occupant/lessee or for the recovery of rent and future mesne profit from him, the Court may direct the defendant to deposit such amount on account of arrears, upto date of the order and thereafter continue to deposit in each succeeding month the rent claimed in the suit. Similarly, Order XXXIX....
X X X X Extracts X X X X
X X X X Extracts X X X X
....us an admission by the appellant of the liability for rent at least of office unit B-1. The appellant, if had been a defendant in a suit, could have thus been directed by an interim order in the suit to make such payment to the respondent. Order XV-A added to the CPC as applicable to Delhi and which was added, as held by us in judgment dated 15th May, 2014 in FAO(OS) 597/2013 titled Raghubir Rai Vs. Prem Lata, to empower the Court to direct payment during the pendency of the suit at a rate other than admitted rate also, empowers the Civil Court to direct payment which is apparently wrongfully disputed. The denial by the appellant of the entire rent as agreed, on the ground of having determined the tenancy of one of the two office units taken on rent, is clearly vexatious, as in law the appellant as a tenant could not determine tenancy of part of the premises taken on rent. It is not the case of the appellant that it was entitled to do so as part of terms of its tenancy. In that view of the matter, the appellant could under Order XV-A of the CPC have been directed to pay the rent of the entire premises notwithstanding having given notice of termination of tenancy of part thereof We ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction at the threshold are attracted even while dealing with an application under Section 9 of the Act. There is also the principle that when a power is conferred under a special statute and it is conferred on an ordinary court of the land, without laying down any special condition for exercise of that power, the general rules of procedure of that court would apply. The Act does not prima facie purport to keep out the provisions of the Specific Relief Act from consideration. No doubt, a view that exercise of power under Section 9 of the Act is not controlled by the Specific Relief Act has been taken by the Madhya Pradesh High Court. The power under Section 9 of the Act is not controlled by Order XVIII Rule 5 of the Code of Civil Procedure is a view taken by the High Court of Bombay. But, how far these decisions are correct, requires to be considered in an appropriate case. Suffice it to say that on the basis of the submissions made in this case, we are not inclined to answer that question finally. But, we may indicate that we are prima facie inclined to the view that exercise of power under Section 9 of the Act must be based on well recognized principles governing the grant of inte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bed. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle." 27. It was observed later, in the same judgment that: "The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term 'mandatory' to describe the injunction, the same question of substance will determine whether the case is 'normal' and therefore within the guideline or 'exceptional' and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a 'high degree of assurance' about the plaintiffs chances of establishing his right, there cannot be any rational basis for withholding the injunction." 22. In view of the above, we do no agree with the submission of Learned Senior Counsel for the appellant that under Section 9 of the Act,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng the payments as follows: a. Rent for Said Premises-INR 18,00,000/- (Rupees eighteen lacs only) per month payable on or before the 15th day of each Calendar month to the LESSOR in advance ("Monthly Rent") . 4.5 Except in case of termination of this Lease, monthly rent payable under this Lease Deed will be increased by 15% calculated on the last paid rent by the LESSEE for the previous month after every period of 3 (three) calendar years ("Escalation") . The provisions of escalation shall become effective from 1st April, 2017 and thereafter from 1st April, 2020 of the Lease period. Other than as provided in this Clause, there shall be no further escalation. For the removal of doubts, the rent payable will be as follows: 1st April, 2014 to 31st March, 2017 Rs. 18,00,000 1st April, 2017 to 31st March, 2020 Rs. 20,70,000 1st April, 2020 to 31st March 2023 Rs. 23,80,500" 25. A bare reading of the above clauses, in our prima facie opinion, would show that Rs. 54 lacs was the advance monthly rent for three months and was to be adjusted over the period of next 9 months of the lease period. The lease was to commence from 01.04.2014. Clause 4.5 clearly states that rent payable f....