Mini Pushkarna, J.

[1] I.A. No. 15947/2019 (Application on behalf of plaintiffs under Order VIII Rule 10 read with Section 151 CPC for handing over peaceful, vacant and physical possession) in CS(OS) 226/2019

I.A. No. 3965/2022 (Application on behalf of the plaintiffs under Order 39 Rule 10 CPC read with Section 94 and 151 of CPC seeking direction against the defendant to deposit the arrears of licence fee, pendente-lite and future till final adjudication of the present suit) in CS(OS) 226/2019

1. I.A. No. 15947/2019 is an application filed on behalf of plaintiffs under Order 8 Rule 10 read with Section 151 of Civil Procedure Code, 1908 (CPC) for handing over peaceful, vacant and physical possession of the premises in question.

[2] I.A. No. 3965/2022 is an application under Order 39 Rule 10 CPC wherein the plaintiffs have sought directions against the defendant to deposit the arrears of licence fee, pendente-lite and future, till final adjudication of the present suit.

[3] The present suit has been filed on behalf of the plaintiffs for possession, recovery of arrears of licence fees and mesne profits/damages and permanent and mandatory injunction. It is the case on behalf of the plaintiffs in the suit that they are the true and lawful owners of land admeasuring 12 bighas and 16 biswas in khata khatauni number 49/421, bearing mustatil no. 14, killa no. 26 (5-4), mustatil no. 16, killa no. 26 (3-4) and mustatil no. 17, killa no. 26(4- 8), with boundary wall, tubewell, electric connection and built up structure standing thereon, situated in the Revenue estate of Village Kapasera, Tehsil Vasant Vihar, New Delhi.

[4] The suit property is jointly owned by the plaintiffs.

[5] The relevant facts as stated in the plaint are that in the year 2017, by way of registered licence deed, the plaintiffs had licensed the suit property land to the defendant for banquet hall/party lawn purposes. A registered licence deed dated 29.08.2017 was duly executed between the parties. The suit property was licensed to the defendant for a period of 9 years with effect from 01.11.2017 till 31.10.2026.

[6] It was agreed between the plaintiffs and defendant that there shall be 15% escalation after expiry of every 3 years of the licence period as per Clause B of the License Fee Agreement dated 29.08.2017. In terms of the said clause, licence fees of the suit property was initially set at a sum of Rs. 13,34,000/- per month with effect from the month of November, 2017, which was to be paid on or before 7th day of each English calendar month during the licence period.

[7] It was also agreed that besides the licence fees, the defendant shall also be liable to pay GST or any statutory taxes of whatsoever nature to the plaintiffs. As such, in terms of the licence deed, an amount of Rs. 14,40,720/- was to be paid every month by the defendant after deducting TDS towards the payment of licence fees equally in favour of both the plaintiffs i.e. Rs. 7,20,360/- to each plaintiff.

[8] As per Clause 26 of the licence deed, it was agreed between the plaintiffs and the defendant that the defendant shall handover 12 post dated cheques every year, towards the licence fee for the next 12 months during the term of the licence. In terms of the said clause, the defendant issued 24 cheques in favour of each of the plaintiffs in the month of November, 2017 i.e. 12 cheques in favour of plaintiff no. 1 and 12 cheques in favour of plaintiff no. 2.

[9] The defendant had assured the plaintiffs and further undertook that the said cheques will be duly honoured by the drawee bank on presentation. It is the case on behalf of the plaintiffs that since May, 2018, the cheques issued by the defendant in discharge of their monthly liability have been dishonoured with the remarks funds insufficient . As such, since the month of May, 2018, the defendant has failed to pay the said licence fee payable in respect of the suit property. Thus, it is submitted on behalf of the plaintiffs that the defendant is in breach of the terms of the licence deed. The defendant has also not deposited the amount of tax deducted at source with the Income Tax Authorities, which was deduced by the defendant from the licence fee of the suit property for the financial year 2018-19, amounting to Rs. 6,00,300/- for each plaintiff, amounting to Rs. 12,00,600/-.

[10] It is the case of the plaintiffs that when the plaintiffs contacted the defendant, the Directors and other senior officials of the defendant assured the plaintiffs that payments shall be made. Since no payments were made by the defendant, cases were filed by the plaintiffs against the defendant for dishonour of cheques under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).

[11] It is also submitted on behalf of the plaintiffs that it has come to their knowledge that the defendant has also raised certain illegal and unauthorized construction in the property in question without obtaining any sanction and/or approval from the sanctioning authorities. The plaintiffs have never authorized the defendant for raising any illegal and unauthorized construction and as such the defendant has made considerable damage to the property in question.

[12] Thus, it is submitted that in view of the conduct of the defendant, the plaintiffs informed the defendant that in case the defendant failed to deposit the TDS and clear the arrears of outstanding rent, the plaintiffs shall be constrained to terminate the license deed. Despite number of personal requests made by the plaintiffs to the defendant to pay the arrears of rent w.e.f. May, 2018 as well as outstanding electricity and water charges, the defendant has not paid the same. Thus, the plaintiffs through their advocate sent a legal notice dated 12.11.2018 thereby calling upon the defendant to pay the license fee, electricity and maintenance dues and handover the possession of the suit property within 15 days of receipt of the legal notice. In spite of receiving the said legal notice dated 12.11.2018, the defendant did not vacate the suit property and did not pay the amount as demanded.

[13] It is submitted that the defendant has not paid the license fees and is illegally occupying the suit property despite the fact that license deed was terminated by the plaintiffs on 12.11.2018 due to nonpayment of monthly license fees. No renewal of the said lease agreement has been effected by the plaintiffs and the plaintiffs are not willing to renew the license deed. Thus, the present suit has been filed claiming the relief of ejectment and possession thereby directing the defendant to vacate the suit property and to handover the possession of the suit property.

[14] The prayers as made in the present suit are reproduced as below:

a) Pass a decree of possession by way of ejectment in favour of the Plaintiff(s) and against the defendant thereby directing the defendant to vacate the suit property and to handover the possession of the suit property being property land measuring 12 Bighas and 16 Biswas, in Khata Khatauni No. 49/421, bearing Mustatil No. 14, Killa No. 26 (5-4), Mustatil no. 16, Killa no. 26 (3-4) and Mustatil no. 17, Killa no. 26 (4-8), with boundary wall, tube well, electric connection and built up super-structure standing thereon, with all trees, shrubs, standing crops and all other installation therein, situated in the revenue estate of Village Kapashera, Tehsil VasantVihar, New Delhi (which is clearly shown in red colour in the site plan attached),to the Plaintiff(s);

b) Pass a decree of a sum of Rs. 1,29,66,480/- (Rupees One Crore Twenty Nine Lacs Sixty Six Thousand Four Hundred Eighty only) in favour of the Plaintiff(s) and against the Defendant being arrears of License Fee in respect of the suit property thereby directing the Defendant to pay a sum of Rs. 1,29,66,480/- (Rupees One Crore Twenty Nine Lacs Sixty Six Thousand Four Hundred Eighty only) to the Plaintiff(s);

c) Pass a decree of a sum of Rs. 12,00,600/- (Rupees Twelve Lakhs and Six Hundred Only) along with interest in favour of the Plaintiff(s) and against the Defendant being arrears of TDS deducted by the Defendant from the monthly license fee of the suit property and not deposited with the Income Tax Authorities, thereby directing the Defendant to pay a sum of Rs. 12,00,600/- along with interest to the Plaintiff(s);

d) Pay/clear all dues in case there are any arrears/dues that the Defendant is liable to pay to the concerned Authority for water and electricity charges, till the date of realization in respect of the suit property.

e) Award damages/mesne profits amounting to Rs. 13,34,000/- per month (Rupees Thirteen Lacs Thirty Four Thousand Only) in favour of the Plaintiff(s) and against the defendant from the date of filing of the present suit till the possession of the suit property is handed over by the defendant to the Plaintiff(s);

f) Award future and pendente-lite interest at a rate of 18% per annum on the aforesaid amounts prayed for. in clause (b) to (e) of the prayer

g) Pass a Decree of Mandatory Injunction in favour of the Plaintiff(s) and against the Defendant thereby directing the Defendant to pay and clear all the dues of electricity and water charges and also to get a No Dues Certificate from the concerned electricity and water department with respect to the electricity and water charges, with respect to the suit property and to handover the No Dues Certificate/ receipts thereof to the Plaintiff(s);

h) Pass a Decree of Perpetual/ Permanent Injunction in favour of the Plaintiff(s) and against the defendant thereby restraining the Defendant from creating any third party interest and from parting with possession of the suit property being land measuring 12 Bighas and 16 Biswas, in Khata Khatauni No. 49/421, bearing Mustatil No. 14, Killa No. 26 (5-4), Mustatil no. 16, Killa no. 26 (3-4) and Mustatil no. 17, Killa no. 26 (4-8), with boundary wall, tube well, electric connection and built up superstructure standing thereon, with all trees, shrubs, standing crops and all other installation therein, situated in the revenue estate of Village Kapashera, Tehsil VasantVihar, New Delhi to any other person except the Plaintiff(s);

i) Award the costs of the present suit in favour of the Plaintiff(s) and against the Defendant.

[15] The defendant herein did not file the written statement. Thus, by order dated 30.10.2019, this Court closed the right of the defendant to file written statement. The matter was thereafter put before the Joint Registrar for recording of evidence.

[16] Subsequently, I.A. No. 15947/2019 came to be filed on behalf of the plaintiffs under Order VIII Rule 10 CPC on the ground that since the defendant s right to file written statement in the present suit has been closed, therefore, under Order VIII Rule10 CPC, this Court has prerogative to pass an order in relation to the suit as it thinks fit. By way of the present application, the plaintiffs have prayed for passing an interim order/judgment and decree in their favour and against the defendant in respect of prayer A made by the plaintiffs. Thus, it has been prayed that the defendant be directed to vacate the suit property and to handover the possession of the suit property.

[17] It is contended on behalf of the plaintiffs that they are the true and lawful owners of the suit property and after termination of the license, the defendant is illegally occupying the same. The failure on the part of the defendant to vacate the suit property even after determination of the license is resulting in unjust enrichment and undeserved/unlawful gain by the defendant. Thus, it is prayed that the present application be allowed and defendant be directed to handover the possession of the suit property to the plaintiffs.

[18] On the other hand, on behalf of the defendant, it is submitted that the defendant has filed suit bearing No. CS(OS) 607/2021, wherein it has prayed for a decree in its favour for declaration that the defendant herein be declared as permanent licensee qua the suit property. It is submitted that the defendant has incurred huge expenses and works of permanent character have been executed on the land in question which was barren land, giving right to the defendant herein of getting irrevocable license.

[19] It is the case of the defendant that acting upon the license, it has made huge investments of about Rs.15 crores in the licensed premises/suit property and has set up huge infrastructure for the purpose of carrying on the business of banquet halls/party lawns. The work carried out by the defendant herein is permanent in nature and includes entire concrete structure, all floor marbles, offices, etc. on different floors, lift installation, air conditioning halls along with kitchen, kitchen equipments, their installation along with maintenance etc.

[20] It is submitted that though the defendant herein was making payments to the plaintiff, they initiated frivolous proceedings under Section 138 of the NI Act against the defendant. However, the said proceedings have been disposed of as the defendant made complete payments against the due amounts and a settlement was arrived at between the parties. The suit filed on behalf of the plaintiffs is a false and frivolous suit and is only a pressure building mechanism against the defendant.

[21] The defendant has relied upon Section 60(b) of The Indian Easement Act, 1882 to contend that the license deed cannot be revoked/terminated when the defendant/licensee has executed a work of permanent character and incurred expenses in the execution of the same.

[22] Having heard the parties, I first proceed to dispose of I.A. No. 15947/2019.

[23] As regards provision under Order VIII Rule 10 CPC, the same stipulates the procedure when party fails to present written statement. Order VIII Rule 10 CPC reads as under:

10. Procedure when party fails to present written statement called for by Court. - Where any party from whom a written statement is required under rule 1 or 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.

[24] A judgment and decree under Order VIII Rule 10 CPC would be passed by a court only if there is no fact that needs to be proved by the plaintiffs, assuming that the facts as set out in the plaint have been admitted owing to non-filing of the written statement. It is only when the court is fully satisfied that there is no fact which needs to be proved on account of deemed admission that the court will pass a judgment against the defendant on the basis of non-filing of written statement. Thus, Supreme Court in the case of C.N. Ramappa Gowda Vs. C.C. Chandregowda (dead) by LRs and Another,2012 SCCOnLineSC 365 has held as follows:

25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect [Ed.: It would seem that it is the purpose of the procedure contemplated under Order 8 Rule 10 CPC upon non-filing of the written statement to expedite the trial and not penalise the defendant.] of nonfiling of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non-filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint.

26. It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial.

[25] Courts have laid down time and again that relief under Order VIII Rule 10 CPC is discretionary and court has to be more cautious while exercising such power in cases where in the defendant has failed to file written statement. The provisions of Order VIII Rule 10 CPC give discretion to the court not to pronounce judgment against the defendant and pass such order as it thinks fit.

[26] In the case of Shantilal Gulabchand Mutha Vs. Tata Engineering and Locomotive Company Limited and Another,2013 SCCOnLineSC 240, Supreme Court has held as follows:

8. In Bogidhola Tea & Trading Co. Ltd. v. Hira Lal Somani, 2007 14 SCC 606 : AIR 2008 SC 911] this Court while reiterating a similar view observed that a decree under Order 8 Rule 10 CPC should not be passed unless the averments made in the plaint are established. In the facts and circumstances of a case, the court must decide the issue of limitation also, if so, involved. (See also Ramesh Chand Ardawatiya v. Anil Panjwani, 2003 7 SCC 350 : AIR 2003 SC 2508] .)

9. In view of the above, it appears to be a settled legal proposition that the relief under Order 8 Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by the defendant, and the court must give reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understand what were the facts and circumstances on the basis of which the court must proceed, and under what reasoning the suit has been decreed.

[27] Coming to the facts of the present case, it is clearly discernible that no judgment can be passed in favour of the plaintiffs. The defendant herein has filed a suit, which is in the nature of a cross suit bearing No. CS (OS) 607/2021, wherein the defendant herein is claiming itself to be declared as a permanent licensee qua the suit property. In its suit, the defendant herein is praying that the plaintiffs herein be restrained from interfering in the peaceful possession of the defendant of the suit property. Therefore, this Court cannot accord its satisfaction as regards the facts pleaded by the plaintiff herein in the plaint.

[28] The suit, CS(OS) 607/2021 as filed by the defendant herein is pending adjudication before this Court and the various issues as raised by the defendant herein in its suit claiming to hold an irrevocable license in terms of Section 60(b) of The Indian Easement Act, 1882 would have to be decided. This Court would have to determine the conflicting and opposing rights claimed by the plaintiffs and the defendant herein and adjudicate upon their rival claims.

[29] Holding that a court should not proceed to pass judgment blindly merely because written statement has not been filed by the defendant, Supreme Court in the case of Balraj Taneja and Another Vs. Sunil Madan and Another,1999 SCCOnLineSC 860 has held as follows:

29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression the court may, in its discretion, require any such fact to be proved used in sub-rule (2) of Rule 5 of Order 8, or the expression may make such order in relation to the suit as it thinks fit used in Rule 10 of Order 8.

[30] Considering the facts of the present case and the law with regard to pronouncement of judgment under Order VIII Rule 10 CPC, I.A. No. 15947/2019 filed by the plaintiffs is found to be without any merits and is accordingly dismissed.

[31] As regards I.A. No. 3965/2022, the said application has been filed on behalf of the plaintiffs under Order XXXIX Rule 10 CPC seeking directions against the defendant to deposit the arrears of license fee in this Court or to pay to the plaintiffs entire arrears of license fee along with future damages/mesne profits @ Rs.16,56,828/- (Rupees Sixteen Lakh Fifty Six Thousand Eight Hundred Twenty Eight) per month till adjudication of the present suit. Thus, it has been prayed as follows:

a. Direct the defendant to either deposit in this Hon ble Court or to pay to the plaintiffs. the entire arrears of License fee as mentioned in para 7 of the present application, along-with future damages/mesne profits@ Rs. 16.56,828/- (Rupees Sixteen Lakhs Fifty Six Thousand Eight Hundred and Twenty Eight Only) per month till adjudication of the present suit

b. Till the time the amount mentioned in the para (a) of the present application is not paid by the defendant, the defendant and its directors be directed to furnish a security to produce any property belonging to them and place the same at the disposal of this Hon 'ble Court;

c. Appoint a Court receiver to take control over the of bank accounts, assets and other financial aspects of the Defendant in order to enforce performance of the abovestated duty cast upon the Defendant under the License Deed dated 29.08.2017 and all profits accruing from the suit property be appropriated towards arrears of License Fee;

[32] It is submitted on behalf of the plaintiffs that since the subsistence of the licence deed dated 29.08.2017 till the present date, the defendant has been enjoying the peaceful and physical possession of the licenced premises. However, since May, 2018, the cheques issued by the defendant in discharge of their monthly liability have been dishonoured. Besides, the defendant has also failed to deposit the TDS which was deducted by the defendant from the licence fees for the financial year 2018-2019. It is however, admitted that in some of the cases under Section 138 of the NI Act filed by the plaintiffs against the defendant, the defendant has made the payment to get those cases compounded from the Court.

[33] It is submitted that due to recurring defaults of the defendant with respect to monthly licence fees, a huge sum is due and outstanding in favour of the plaintiffs. The defendant is continuing to occupy the suit property despite the fact that the licence deed in favour of the defendant was determined by the plaintiffs due to non-payment of monthly licence fees. It is the case of the plaintiffs that as on February, 2022, an aggregate amount of Rs. 6,80,50,008/- has accrued in favour of the plaintiffs.

[34] It is the case of the plaintiffs that considering the entire circumstances and events, it would be just and equitable that the defendant is directed to either deposit in this Court or to pay to the plaintiffs, the entire arrears of licence fees, along with future damages/mesne profits @ Rs. 16,56, 828/- per month.

[35] The defendant has strongly opposed the present application. It is submitted that bare reading of provisions of Order 39 Rule 10 CPC shows that it is only in a case of admission that an order under this provision can be made. In the present case, there is no admission, rather there is a cross suit pending before this Court being CS 607/2021. It is contended that the present application suffers from suppression of material facts. All the amounts against the cheques qua which petitions under Section 138 of N.I. Act were pending, have been paid to the satisfaction of the plaintiff.

[36] Further, the plaintiffs have failed to clear their part of the obligations. Without fulfilling their obligations, the plaintiffs cannot seek to get an order of payment from this Court. Thus, it is submitted that the change of land use from agricultural to commercial; permission from Municipal authorities to run commercial banquet and taking steps to get the seal of the Municipal authorities removed, are all instances where the plaintiffs have failed to discharge their obligations under the licence deed.

[37] It is further submitted that during the Covid-19 period, the property in question was taken over by the Government to make hospital therein. Thus, the defendant cannot be asked to pay licence fees for the said period. It is further submitted that the parties met at the office of the lawyers of the plaintiffs and made cash payments of Rs. 65,00,000/- to the plaintiffs. This fact is mentioned in the suit filed by the defendant herein i.e. CS(OS) No. 607/2021.

[38] I have heard learned counsels for the parties.

[39] Provision of Order 39 Rule 10 CPC is applicable where a party to a suit admits that he holds the money as a trustee for the other party. Perusal of the facts of the present case manifest that a licence was entered between the parties for the premises in question. By virtue of the registered licence deed dated 31.08.2017, the defendants were given possession of the premises in question for the purposes of running a banquet hall/party lawn for a period of 9 years. The terms of the registered Licence Deed have not been denied by any of the party, rather the defendant also relies upon the said registered Licence Deed in order to claim its rights.

[40] Clause 2 of the licence deed between the parties provides that the licensee in consideration of the use of the licensed premises, shall pay to the licensors, a licence fees of Rs. 13,34,000/- per month on or before the 7th day of the each English calendar month during the licence period. The same is subject to 15% escalation after expiry of every three years. The licence fees was payable with effect from 01.11.2017 in terms of the licence deed.

[41] The defendant has filed a cross suit, CS (OS) No. 607/2021 wherein the defendant is claiming its right as a permanent licensee qua the suit property. The ownership of the plaintiffs to the suit property has not been denied. The defendant in the suit filed by it has put up a claim that it has made huge investments in the licensed premises and has set up huge infrastructure for the purpose of carrying on the business of banquet hall/party lawn. It is claimed that the work carried out by the defendant herein is permanent in nature.

[42] Perusal of the pleadings and the documents show that the plaintiffs have handed over land measuring 12 bighas and 16 biswas situated at Village Kapashera, Tehsil Vasant Vihar, New Delhi to the defendant herein for the purposes of running banquet hall/party lawn. The liability to pay licence fees on behalf of the defendant has been denied on the grounds that the premises in question had been sealed by the Municipal Corporation. Payment of licence fees has also been denied on the ground that during the Covid-19 pandemic, the premises in question were being used as hospital for Covid patients. It is also the case of the defendant that the amounts against the cheques paid towards licence fees, have since been paid to the satisfaction of the plaintiff.

[43] During the course of hearing, order dated 19.11.2019 passed by the Court of Ld. MM-03/South/Saket has been relied upon by the defendant to submit that the offence of dishonour of cheque under Section 138 N.I. Act has been compounded. The said order dated 19.11.2019 is reproduced as below:-

“CT cases 15629/2018, 15946/18, 520/19 & 16337/18
AASHISH KHANNA Vs. M/S ROSHINI HOTELS PRIVATE LIMITED/0 ()
19.11.2019
The undersigned is also looking after the work as 1st Link MM of the court of Ms. Mayuri Singh, Ld. MM, South District, Saket, New Delhi
Present:	Ms. Monika Shahi, counsel for the complainant.
	Counsel for the accused.
It is submitted by counsel for the complainant that she has instructions from the complainant to compound the offence with the accused as the accused has already made the payment towards the cheque in question to the complainant. She seeks permission of the court to compound the offence.
Statement of counsel for the complainant is recorded in this regard.
Statement of Ms. Monika Shahi, Advocate, Enrollment No. D-4038/2015. Counsel for complainant. At Bar
I am the counsel for complainant company in the present case. My vakalatnama on behalf of complainant is already on record. I have instructions from the complainant to compound the offence under Section 138 NI Act with the accused on behalf of the complainant as the accused has already made the payment towards the cheque in question to the complainant. I may be allowed to compound the offence and the present complaint case may be disposed off as settled. I shall remain bound by my aforesaid statement.
RO & AC
VINIK JAIN
MM-03/South/19.11.2019
In view of the aforesaid statement of counsel for the complainant, the present complaint is disposed off as settled. Offence stands compounded. Accused is hereby acquitted.
File be consigned to record room after due compliance.
VINIK JAIN
MM (NI Act-03)
South/Saket/19.11.2019”

[44] Thus, it is clear that though the defendant has not denied the licence deed between the parties, it is denying the payment to the plaintiffs on the basis of certain factors when the premises could not be used owing to sealing, use of the premises as hospital during the Covid-19 lockdown, etc. There is also averment of having paid Rs. 65,00,000/- in cash to the plaintiffs. Hence, payment of licence fees is being denied by the defendant on one or the other ground. However, there is no denial of either the licence deed or the terms of the licence deed. Rather, the defendant itself is relying upon the licence deed in order to claim its right as a permanent licensee.

[45] In view of the aforesaid, for the periods when the defendant was unable to use the premises as per averments made on behalf of defendants, no order can be passed under Order 39 Rule 10 CPC. The same would be subject matter of trial between the parties. Similarly, the amount of Rs. 65,00,000/- as claimed to have been paid by the defendant in cash to the plaintiffs, would be subject matter of trial between the parties. Therefore, for the aforesaid period as well as for the aforesaid amount, as alleged to have already been paid on behalf of the defendant, no order can be passed by this Court.

[46] However, it is to be noted that the defendant has not denied that it is in possession and use of the premises pursuant to licence deed between the parties. The ownership of the plaintiffs has also not been denied and is not under dispute. Thus, the defendant cannot be allowed to be in possession and use of the premises owned by the plaintiffs without payment of licence fees.

[47] Even if the defendant was to succeed in its suit and be declared as a permanent licensee, even then the defendant would be liable to make payments towards the licence fees to the plaintiffs. Merely because claim of the defendant is pending with respect to its claim for declaration as a permanent licensee of the premises in question, would not be a ground to deny the payment of licence fees to the plaintiffs under the registered licence deed between the parties.

[48] Therefore, the defendant would be liable to make payment towards licence fees for the period after the lockdown and when the premises were not subject to sealing by the Municipal Corporation. Therefore, after adjusting the amount of Rs. 65,00,000/- as alleged to have been paid in cash and also after adjusting the amounts for the various periods as already paid by the defendant, it is held that the defendant is liable to make payment towards licence fees in terms of the licence deed to the plaintiffs.

[49] The other objections raised by the respondent for non-payment of licence fees viz. plaintiffs having failed to fulfil their obligations also does not hold any water. Clauses 11, 12 and 25 of the Licence Deed clearly stipulate that the Licensee shall comply with all the laws, bye-laws, statutes, rules and regulations. Further, it is the sole responsibility of the licensee to obtain all the requisite licences/ permission from the concerned authorities for the purposes of the Banquet Hall. Clauses 11, 12 and 25 of the Licence Deed dated 29.08.2017 read as follows:

11) That the LICENSEE shall comply with all the laws, bye-laws, enactments, statutes, rules and regulations and acts of M.C.D./ D.D.A./ Revenue and other concerned authorities, for the time being in force and shall keep and LICENSORS indemnified for the same.

12) That the LICENSEE shall observe all rules, regulations, laws and conditions etc. relating to the use of the Licensed Premises. In case of non-performance or nonobservance of any such rules, regulations, laws or conditions, then the entire liability in this behalf shall be incurred and discharged by the LICENSEE and further more, the LICENSEE undertakes to keep the LICENSORS harmless., saved land indemnified against all claims and demand whatsoever resulting therefrom.

......

25) That it shall be the sole liability and responsibility of the LICENSEE to obtain all the requisite licences/permission from the concerned authorities, Police Department, M.C.D. or other concerned authorities for the purposes of the Banquet Hall from the Licensed premises at its own cost and expenses and get the same renewed from time to time by paying appropriate charges to the concerned authorities and undertakes to keep the LICENSORS fully indemnified in all respects whatsoever.

[50] In view thereof, the defendant is directed to exclude the period when the premises were being used as hospital during the Covid-19 period and the period of lockdown, as well as the period when the premises in question had been sealed by the Municipal Corporation and adjust the amounts already paid and alleged to have been paid by the defendant to the plaintiffs. The defendant is directed to make payment of arrears of licence fees to the plaintiffs after excluding the aforesaid period and after adjusting the aforesaid amounts in terms of registered licence deed. The defendant is further directed to continue to make payments towards licence fees per month in terms of the licence deed during the pendency of the present suit.

[51] As regards the other amounts as claimed by the plaintiffs and denied by the defendant, no order is being made as the same would be subject matter of trial in the present suit as well as the suit filed on behalf of the defendant herein against the plaintiffs.

[52] The defendant is directed to file in a tabular form, details of the calculation towards the amounts payable to the plaintiffs, after adjusting the aforesaid period and amounts already paid by it, within a period of two weeks.

[53] The plaintiffs are granted liberty to file their objections to the calculation of the defendant which issue shall be decided at the time of final adjudication of the suits filed by the parties.

[54] The defendant is directed to make the aforesaid payments as per its calculation towards arrears of licence fees within a period of eight weeks from today.

[55] Cm APPL. 3965/2022 is disposed of accordingly.

CS(OS) 226/2019 & CS(OS) 607/2021

[56] List before the roster bench on 06.03.2023