Melange & Ors v. Ywca of India

RAJIV SAHAI ENDLAW, J. APRIL 26, 2016

'pp' (corrected & released on 16th June, 2016)

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 26th April, 2016 + MELANGE & ORS ..... Appellants Through: Mr. Aadarsh B. Dial, Sr. Adv. with Mr. Kunal Anand, Adv. Versus YWCA OF INDIA ..... Respondent Through: Mr. Rohit Gandhi, Adv. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and money decree (of Rs.12,51,144/- with interest at 10% per annum from institution of the suit till realisation) dated 19th July, 2013 of the Court of the Additional District Judge (ADJ)-12 (Central), Delhi in CS No.167/2011 filed by the respondent/plaintiff under Order 37 of the CPC, consequent to dismissal of the application filed by the three appellants i.e. appellant no.1 and Mr. Gagan Bhandari and Mr. Gaurav Obrien Gardner being the partners of the appellant no.1 for leave to defend. 2. The appeal came up first before this Court on 28th October, 2013 when the counsel for the respondent/plaintiff being on caveat appeared and accepted notice and the trial court record was requisitioned and subject to the appellants depositing the entire decretal amount i.e. with interest till the date of deposit in this Court execution was stayed. The appellants however deposited only Rs.3 lacs in this Court and applied for furnishing security for the balance decretal amount and which was allowed vide order dated 22nd July, 2014. Security in the form of original title deeds of immovable property was furnished and which was accepted. The parties were referred to mediation but which remained unsuccessful. Vide order dated 17th November, 2015 the deposited amount of Rs.3 lacs was ordered to be released in favour of the respondent/plaintiff subject to the respondent/plaintiff furnishing undertaking for restitution thereof in the event of the appeal succeeding. The respondent/plaintiff is reported to have withdrawn the same. Though the appeal has not been formally admitted as yet but considering the fact that in the event of being allowed the suit will have to be remanded, the counsels have been heard finally and the trial court record perused. 3. The respondent/plaintiff instituted the suit from which this appeal arises pleading that (i) the respondent/plaintiff has an international guest house at Sansad Marg, New Delhi with dining hall where services of boarding and lodging are provided to members and guests; (ii) that the appellant/defendant no.1 of which the appellants/defendants no.2&3 are partners had approached the respondent/plaintiffs in early 2008 offering to provide dining services in the said guest house and a Licence Agreement dated 31st March, 2008 was entered into whereunder respondent/plaintiff made available to appellants/defendants for a period of three years an area of 1851.97 sq. ft. for dining hall, kitchen and store and front garden measuring 1755 sq. ft. in its aforesaid guest house for the purpose of providing dining services in the name and style of 'The Royal Court' and the appellants/defendants agreed to pay a licence fee of Rs.1,50,000/- per month to the respondent/plaintiff w.e.f. 1st June, 2008 beside electricity and water charges as per actual consumption; a supplementary agreement dated 19th April, 2008 was entered into between the parties whereunder the appellants/defendants deposited an amount of Rs.4,50,000/- with the respondent/plaintiff by way of security; (iii) on request of the appellants/defendants the time for commencement of payment of licence fee was extended to 1st July, 2008; (iv) that the appellants/defendants despite commencing dining services did not make payment of licence fee and of electricity and water charges and approached the respondent/plaintiff for reduction in licence fee and a fresh Licence Agreement dated 1st January, 2009 to come into effect w.e.f. 1st April, 2009 was entered into whereunder the licence fee was reduced to Rs.1,00,000/- per month; (v) appellants/defendants still defaulted and on t