JUDGMENT
S.N. Kapoor, J.
(1) The plaintiff/applicant Company has filed suit for possession and damages against the defendants. According to the plaintiff, Arun Thapar impersonating himself as Satish Thapar of M/s. Thapar Agro Mills Ltd. approached the plaintiff for using rooms No. 101, 102 and 103 of Saraswati Lodge at the rate of Rs. 40.00 per day per room. Acting on that representation, the aforesaid three rooms given at the lodging fee of Rs. 40.00 per day per room for a period of 750 days commencing from 4th January 1986 for temporary residence of Arun Thapar. Arun Thapar paid a sum of Rs. l,2000.00 by means of a bank draft being lodging charges for a period of 100 days. Arun thapar even signed the lodge register and receipt book as Satish Thapar. The defendant had broken open a room No.104 and a kitchen and it was noticed on 21st September, 1986. On 18th September 1986, a suit was filed by M/s. Agro Mills Ltd. claiming to be the tenant in the lodging house. The area is residential and the premises could not be let out for commercial purposes being prohibited by law. Dda has threatened to prosecute the plaintiff and has served the notice. The possession and occupation of the demised premise by defendant Company is wholly illegal, unauthorised and untenable. The defendant is liable to p?y damages at the rate of Rs. 15.00 per sq. ft. in respect of an area of 1700 sq. ft. The plaintiff thus claims a sum of Rs. 7,50,000.00 as damages from 4th January, 1986 to 4th July, 1988. Apart from possession of rooms No.101-104, kitchen and front lawn and the rear courtyard alongwith Rs. 7,50,000.00 as damages, the plaintiff Company also seeks mandatory injunction restraining the defendants from using the premises for any purpose other than the residential purpose.
(2) In that connection Ia 4277/97 has been moved seeking directions to the defendant No.1 who claims to be tenants in the suit property, (a) to furnish security for the amount of damages claimed in the suit, (b) to hand over the suit property to the plaintiff in perfect condition and further direction to pay to the local authority their arrears of electricity and water charges up-to-date. This claim is being made in addition to their own case on the strength of report of Local Commissioner to the effect that defendants have caused extensive damages to the suit property. The defendant/Company has totally become commercially insolvent and bankrupt. The defendant No. 1 invited deposits from public and after collecting millions of rupees of public money, this Company has vanished from the scene. Insolvency of the defendant No. 1 Company is evident from the fact that numerous winding up petitions are pending such as:
(I)CP No. 193 of 1995 – M/s. Garware Capital Marketing Limited v. M/s. Thapar Agro Mills Limited- Debt amount Rs. 50,00,000.00 (Rupees fifty lakhs) along with interest.
(2)CP No.217 of 1995 – M/s. Comecon Overseas Private Limited v. Thapar Agro Mills Limited-Debt amount Rs. 50,00,000.00 (Rupees fifty lakhs) alongwith interest.
(3)CP No. 239 of 1995 – M/s. Talavi Bulk Chemical Limited v. M/s. Thapar Agro Mills Limited-Debt amount Rs.25,00,000.00 (Rupees twenty five thousand) along with interest.
(4)CP No. 155 of 1955- M/s. Ingil Company Limited v. M/s. Thapar Agro Mills Limited-Debt amount Rs.26,38,699.00 (Rupees twenty six lakhs thirty eight thousand six hundred ninety nine) along with interest.
(5)CP No. 167 of 1995 – Allahabad Bank v. M/s. Thapar Agro Mills Limited – Debt amount Rs. 13,79,920.00 (Rupees thirteen lakhs seventy nine thousand nine hundred twenty) alongwith interest.
(6)CP No. 150 of 1996 – M/s. Vipro Finance Private Limited v. M/s. Thapar Agro Mills Limited – Debt amount Rs. l,58,80,700.00 (Rupees one crore fifty eight lakhs eighty thousand seven hundred) alongwith interest.
(7)CP No.76of 1997- Tata Finance Limited v. M/s. Thapar Agro Mills Limited-Debt amount Rs. 50,00,000.00 (Rupees fifty lakhs) along with interest.
(8)CP 218 of 1994-M/s. Lata Steel Agencies v. M/s. Thapar Agro Mills Limited – Debt amount Rs. 04,39,330.00 (Rupees four lakhs thirty nine thousand three hundred thirty) alongwith interest.
(9)CP No. 81 of 1996 M/s. Gujrat Steel Financial Services Limited v. M/s. Thapar Agro Mills Limited – Debt amount Rs. 50,00,000.00 (Rupees fifty lakhs) alongwith interest.
(3) The electricity and water charges have not been paid by the defendant. Following cheques issued by defendant No. 1 Company for payment of electricity bills have been dishonoured.
(1)For a sum ofRs.6,149.00 (Rupees six thousand one hundred forty nine); (2) Rs. 2,37,517.00 (Rupees two lakh thirty seven thousand five hundred seventeen); (3) Rs. 99,185.00 (Rupees ninety thousand one hundred eighty five); (4) Rs. 5,353.00 (Rupees five thousand three hundred fifty three)
(4) Despite the fact that time was granted to the defendants to file reply, it does not appear that any reply has been filed.
(5) The case of the defendants is that defendant No. 1 is the tenant and jurisdiction of this Court is barred under Section 58 of the Delhi Rent Control Act. Being tenant, the defendant No.1 has filed petition for fixation of standard rent and the suit is liable to be stayed.
(6) Thus, it is apparent that while the defendant No. 1 claims to be tenant while according to the plaintiff the defendant does not have any status above that of a lodger in respect of three rooms and that of a trespasser in respect of room No. 104 and kitchen.
(7) I have heard both the parties and have gone through the record. Seeing the prosecution of the defendants, by Dda for misusing the premises. It is also apparent that defendant had already been restrained from misusing the premises vide order dated 31st March, 1994. From the report of the Local Commissioner, it appears that the property is extensively damaged. It is admitted that the electricity bills have not been paid and legal proceedings are going on against defendant separately. It has not been alleged that any wrong information has been furnished about the winding up cases against defendant No. 1 referred to above. Seeing the prayer for winding up of the companies by the creditors, it is also admitted that the defendants were facing some sort of financial crunch. The cheques issued by the defendants had bounced to clear the electricity bills etc. It is further notable that while plaintiff No. 1 claims to be the tenant, other plaintiffs claim to be occupants. The defendant No. 3 had not virtually come forward to the rescue of the defendants by making the payment.
(8) Seeing all the above factors, the apprehension of the plaintiff is justified that they may not get even a single paisa as damages for use and occupation,
(9) It is also contended that supposing for the sake of argument, it is accepted that on account of financial crunch, defendant is not in a position to pay, defendant No. 2 who is enjoying the property, must pay the amount, or vacate the premises.
(10) In so far as the question of jurisdiction is concerned, at this stage in the absence of any rent receipt or any other document it is not possible to accept that three rooms in a lodge would have been let out on rent. It is for the defendant to show that defendant No. 1 is a tenant Company. Besides, at least in respect of room No. 104 and the kitchen which was allegedly forcibly occupied. Thus a Civil Court would certainly have jurisdiction to decide the nature of relationship of owner and a lodger, landlord and tenant, number of rooms given on rate of rent, extent of area given on rent, and the amount of arrears of rent/rates to be recovered from the defendants. It may further be mentioned that if the rate of rent was Rs. 3,600.00 per month as alleged by the defendants, then the premises were not covered under Delhi Rent Control Act. By just filing a petition for fixing standard rent, the defendants cannot escape from making payment of the agreed rent at least apparent from the advance payment made by the defendant No.2. Besides according to the defendants rate of rent was Rs. 3600.00 per month. This is no reason that they should withhold the amount of arrears at the rate of Rs. 3600.00 per month, in absence of fixation of interest. It is quite arguable question whether Section 3 of the Drc Act excludes even lodging houses from the purview of the Act, if monthly rate exceeds Rs. 3600.00 for Section 3 while referring to “premises” does not refer to “hotel or lodging house”. If it is so the eviction of a lodger may be possible only under Chapter V of the Drc Act, against a lodger. But trespasser, not being a lodger can be evicted by a Civil Court. The defendants may or may not be found to be trespassers as alleged, after recording evidence. It has also been disputed that upto 14th October, 1996, a sum of Rs. 4,33,680.00 was payable and even the alleged agreed rent had not been paid since October, 1986 at the rate of Rs. 3,600.00 per month. A sum of Rs. 4,68,000.00 has already become due even at that rate. In so far as other claims are concerned I do not feel that it would be proper to go into those claims at this stage.
(11) In the afore-mentioned circumstances, it is apparent that it is just, reasonable, and necessary to stop abuse of the powers of the Court to issue the directions to all the three defendants liable to furnish Bank guarantee for a sum of Rs. 4,68,000.00 within three weeks and they shall continue to pay or deposit in Court Rs. 3,600.00 per month by 20th of every subsequent month starting from September, 1997. This order is being passed without prejudice to the rights of the parties.
(12) Ia 4277/97 is allowed accordingly. List the matter for further directions and disposal of pending IA.S on 18th November, 1997.