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Ramanand &Ors. Vs. Dr. Girish Soni&Anr. - (High Court of Delhi) (21 May 2020)

Temporary non-use of premises due to the lockdown cannot be construed as rendering the lease void



The present revision petition was filed by the Appellants/Tenants (“Tenants”) challenging the order passed by the learned Senior Civil Judge-cum-Rent Controller (“RC”) granting a decree of eviction in respect of tenanted premises. The Tenants run a shoe store called ‘Baluja’ in Khan Market. The Landlord i.e., Respondent No.1 (“Landlord”) is a Dentist. The tenanted premises was given on rent for commercial purposes through a lease deed executed on 1st February, 1975 at Rs.300 per month. In 2008, the Respondents filed an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (“DRC Act”). Initially, leave to defend was granted by the RC on 31st March, 2012. However, vide the impugned order dated 18th March, 2017, a decree for eviction was passed. The Tenants filed an appeal against the impugned order which was dismissed by the Rent Control Tribunal (“RCT”) vide order dated 18th September, 2017 on the ground that the same is not maintainable. Hence, the present petition is filed challenging the eviction order.

The case is governed by the provisions of the Delhi Rent Control Act, 1958. Section 56 of the Indian Contract Act, 1872 (ICA) does not apply to tenancies. The Tenants also do not urge that the tenancy is void under Section 180 (B)(e) of the TPA. The tenants are also not ‘Lessees’ as an eviction decree has already been passed against them.

Thus, for a lessee to seek protection under Sub-section 108(B)(e) of Transfer Of Property Act, 1882 (TPA), there has to be complete destruction of the property, which is permanent in nature due to the force majeure event. Until and unless, there is a complete destruction of the property, Section 108(B)(e) of TPA cannot be invoked. In view of the above settled legal position, temporary non-use of premises due to the lockdown which was announced due to the COVID-19 outbreak cannot be construed as rendering the lease void under Section 108(B)(e) of the TPA. The tenant cannot also avoid payment of rent in view of Section 108(B)(l) of TPA. The tenanted premises are located in the prime commercial area of Khan Market for running of a shop. It is well-known that the commercial area of Khan Market is a sought-after location for business purposes.

The monthly payment of Rs.3.5 lakhs has been fixed by this Court, as a condition for grant of stay for continued use and occupation, after the decree of eviction was passed. The Tenants do not wish to vacate the property due to the lockdown but wish to continue to occupy the property. The amount being paid, when compared to the prevalent market rent in the area, is on the lower side. This is clear from a perusal of the lease deed of a neighbouring property placed on record by the Landlord. Even if the said lease deed is to be ignored and not taken on record, judicial notice can be taken of the fact that the prevalent rent in Khan Market is amongst the highest in the whole of Asia. The amount being paid by the Tenants, though substantial, is on the lower side as compared to other properties in Khan Market.

The Tenants are ‘unauthorised occupants’ of the tenanted premises as a decree of eviction has already been passed. The monthly payment of rent being made has been fixed by this Court vide the interim order dated 25th September, 2017 in view of the judgment of the Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.,. The use and occupation charges have to be determined in a manner so as to fully compensate the Landlord as if the Landlord had let out the property to a third party. The Tenants are continuing to occupy the premises and do not intend to vacate the same. In any case, the compensation ought to be reasonable and should make up for the loss caused to the Landlord due to delay in execution of the eviction decree. These factors completely tilt the balance in favour of the Landlord.

There is no contractual condition that permits non-payment or suspension of rent. There are cases where the central and state governments may have, from time to time, given protection to some classes of tenants such as migrants, labourers, students, etc. The present case is not covered by any of executive orders. The Tenants’ application for suspension of rent is thus liable to be rejected as while invoking the doctrine of suspension of rent on the basis of a force majeure event, it is clear from the submissions made that the Tenants do not intend to surrender the tenanted premises. While holding that suspension of rent is not permissible in these facts, some postponement or relaxation in the schedule of payment can be granted owing to the lockdown.

It is accordingly directed that the Tenants shall now pay the use and occupation charges for the month of March, 2020 on or before 30th May 2020 and for the months of April, 2020 and May, 2020 by 25th June, 2020. From June 2020 onwards, the payment shall be strictly as per the interim order dated 25th September 2017. Subject to these payments being made, the interim order already granted shall continue. The application is disposed of.


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