CORAMTHE HONOURABLE MR v. Asfa Offset Printers Private LimitedNo.16/32

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26.8.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHO.S.A.No.257 of 2009and M.P.No.1 of 2009HCL Technologies Ltd.,No.30, Ethiraj Salai,Chennai – 600 105.. Appellant/PlaintiffVs.Asfa Offset Printers Private LimitedNo.16/32, ABM Avenue,Boat Club Road,R.A.Puram,Chennai – 600 028... Respondent/DefendantThe appeal has been preferred under Order XXXVI Rule 9 of O.S.Rules against the order dated 14.8.2009 passed by the learned SingleJudge in Application No. 254 of 2009 in C.S.No.253 of 2009 on thefile of this Court.For Appellant : Mr.R.Krishnamoorthy, Senior Counsel for Mr.P.B.RamanujamFor Respondent : Mr.P.S.Raman, Senior Counsel for Ms.Pushpa MenonJUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges the order passed by the learned singleJudge of this Court made in O.A.No.254 of 2009 in C.S.No.253 of2009, a suit for permanent injunction.2. Pending the suit, the respondent/plaintiff filed twoapplications, one for interim injunction restraining the respondentsfrom using the two basements, first and second floors amounting to10,320 sq.ft. which was earmarked as car park as described in theschedule thereunder for any purpose other than for car parking andthe other application for appointment of Advocate Commissioner toinspect the property and file a report.In support of theapplications, affidavits were filed and on appearance the https://hcservices.ecourts.gov.in/hcservices/ appellant/respondent filed the counter affidavit. The learned singleJudge, on scrutiny of the materials available and after hearing thesubmissions made, granted interim injunction s asked for, pending thesuit. Apart from that, the learned single Judge granted interimmandatory injunction for removal of permanent/semi permanentstructure which were found in the two basements and the first andsecond floors and restore it as a car parking forthwith, while thelearned single Judge dismissed the application for appointment ofCommissioner for inspection. Aggrieved over the same, this appeal hasbeen brought forth by the defendant/respondent.3. The case of the plaintiff before the trial Court was thatthe plaintiff company promoted and acquired the property at No.30,Ethiraj Salai, formerly known as Commander-in-Chief Road, Egmore,admeasuring 50,000 sq.ft., the building consisting of 11 floorsincluding ground floor and 2 basements. A lease agreement wasentered into between the plaintiff and the defendant on 9.2.2003. Thebasements and a portion of the first and second floor are earmarkedfor usage as car parking as per the approved plan. The defendantentered into lease agreement with the owner of the building and asper the agreement, the rent was not for the basement. No additionalcharges were also levied for the car parking from the defendant bythe erstwhile owners of the property. The lease deed was prescribedfor 49,570 sq.ft. and different rates were fixed for differentperiods and the rent was for the commercial area. The property waspurchased by the plaintiff company on 23.12.2004 by acquiring 100%of the equity shares of the Company and thereafter, he has become theowner of the property. The plaintiff had taken loan in HDFC. Aletter was addressed to the defendant to atone the lease in favourof the new owner. Since the plaintiff had taken loan from HDFC andbound themselves to pay the future lease rental towards the loanamount, the defendant was directed to pay rental directly to HDFC asper the loan agreement. This was agreed by the defendant by letterdated 11.1.2005. The said agreement was for a period of six years andit comes to end on 31.1.2009. It came to the notice that thebasement, first and second floors were to be used only for carparking but no rent was charged by erstwhile owner and it was alsonoticed permanent semi structure were also put in the basement areaand also in the first and second floors and the defendant was usingthe same for the purpose other than car parking. It is also used bythe defendant as canteen and training rooms in the car parking areaand two car lifts which were provided were put to disuse. Under suchcircumstances, a communication was addressed on 22.1.2007 callingupon them to discontinue the usage of two basements, first and secondfloors of the building which was not done so. Since the demands madeand thereafter, the reminders made were not met by the defendant,there arose necessity for filing a suit for the relief therein.Pending the suit, there arose a necessity for restraining thedefendants from further using the property unlawfully. Hence, anapplication was filed for interim injunction and also for appointmentof Advocate Commissioner to make inspection of the property and filea report. https://hcservices.ecourts.gov.in/hcservices/

4. The application was resisted by the defendant stating thatthere was an agreement which was entered into between the partieswith the original owner in which the plaintiff was an affirmingparty. The agreement dated 9.2.3003 would clearly indicate that itdid not prohibit the use of the basements or the first and secondfloors for the training centre and canteen. It has been used fornearly six years that too, from 2004 onwards, from the time ofpurchase by the plaintiff. No objections were raised at any point oftime. It was only an attempt made by the plaintiff to enhance therent which did not fructify. Apart from that, the fair rent petitionwas also filed in R.C.O.P.No.208 of 2009. Under such circumstances,the applications had been brought forth vexatiously and both theapplications have got to be dismissed.5. The learned single Judge after hearing both sides and lookinginto the materials available, passed an order granting interiminjunction and also interim mandatory injunction as referred to aboveand dismissed the application for appointment of AdvocateCommissioner.6. Advancing the arguments on behalf of the appellant,Mr.R.Krishnamoorthy, the learned senior counsel would submit that itis true that the defendant was the tenant under the erstwhile ownerand there was an agreement which was entered into on 9.2.2003. Aspecific clause in the schedule of property would clearly indicatethe basements, first and second floors. Under such circumstances, theproperty in question was a part and parcel of the property which wasleased out. Addedfurther learned counsel, in the instant case, therent was also fixed therefor and it referred that the rent was fixedfor the property found in the schedule. Apart from this, from thetime of agreement from 2003 and also from 2004, when theplaintiff/respondent got possession of the property for a periodnearly 5 years, these structures put up by the defendant wereactually in usage and it is also used for the purpose of running acanteen and training centre. Under such circumstances, it is too latefor the respondent/plaintiff to come forward with such a complaint.It was only an attempt by the plaintiff to raise the rent which hecould not do so. Under such circumstances, the interim injunction wasnot called for. Added further learned counsel, when the suit wasfiled only for permanent injunction, it is a matter of surprise tonote that the learned single Judge has granted interim mandatoryinjunction. Hence, the order of the learned single Judge has got tobe set aside.7. The Court heard Mr.P.S.Raman, the learned senior counselappearing for the respondent who putforth the same contention whichwere raised before the trial Court and took the Court to Clause No.2of the agreement to which both the defendant and the plaintiff wereparties and he also pointed out that the first and second floor andthe basements were excluded. Under such circumstances, the plaintiffwas unlawfully using the property which is outside the leaseagreement. Hence, the order of the learned single Judge has got to besustained. https://hcservices.ecourts.gov.in/hcservices/

8. The Court paid its anxious consideration on the submissionsmade on either side.9. It is not on controversy that as on date theappellant/defendant is a tenant under the landlord/respondent. Whenthe property was under the erstwhile owner, the tenancy commenced.An agreement was entered into between the parties on 9.2.2003 wherethe present plaintiff was an affirming party and he has also signedin the agreement. 10. In the terms and conditions found in the agreement dated9.2.2003 entered into between the parties, Clause No.2 reads asfollows:"The rental for the DEMISED PREMISES has been computedon the basis of a super built-up area of 49570 sq.ft.consisting of the ground, Mezzanine and 3rd to 10th floors(excluding the two basements and the 1st ad 2nd floors)."This part is relied upon by the respondent/owner while the learnedcounsel for the appellant took the Court to the schedule of theproperty found in page 11 of the agreement which reads as follows:" Commercial multi storeyed building known asDELPHI consisting of two basements, ground, Mezzanineand 10 floors and all that piece and parcel of landadmeasuring 7 Grounds and 17 sq.ft. Comprised inR.S.No.1632/4 in Block No.52, Egmore Division, boundedon the : NORTH BY :Ethiraj salai formerly known as Commander-in-ChiefRoad in block No.51 SOUTH BY: R.S.No.1632/30 EAST BY : Strip of land sold to Aban Constructions Pvt.Ltd WEST BY : R.S.No.1632/30"11. The learned counsel for the appellant also took the Court toClause No.4 which reads as follows: " The LESSEE shall use the DEMISED PREMISES thepurpose of their normal and usual business under thename of HCL E-SERVE TECHNOLOGIES LTD and its sisterconcerns or its subsidiaries but the LESSEE shall besolely liable to pay the rental and shall maintain thepremises in a clean, tidy, neat, good and tenantablecondition, wind and water tight in all seasons byattending to reasonable wear and tear." https://hcservices.ecourts.gov.in/hcservices/ Pointing to the above paragraph, the learned counsel for theappellant would submit that while the schedule of property wouldcover basements area and also the first and second floors and it wasalso for the use by the tenant for his normal and usual business, itwould be quite clear that what is meant for own use which is thesubject matter of litigation was actually leased out. Added furtherlearned counsel, there is nothing to indicate that it is beyond thenormal use of the business of the appellant. Added further learnedcounsel, when the property was purchased by the respondent thepresent plaintiff was also a party to the agreement entered intobetween the erstwhile owner and the present appellant/defendant on9.2.2003 and subsequently, from 2004 onwards the present plaintiff isall along the witness and it is well within the knowledge of theplaintiff that the property has been used for the purpose of normaluse and they cannot have any objection. Therefore, the circumstancesdo not warrant for any interim injunction and the interim injunctiongranted has got to be vacated.12. The Court is of the considered opinion that it is true inthe agreement dated 9.2.2003, the present plaintiff was also a party,hence, it would bind the plaintiff but at the same time, Clause No.2which speaks of the rent would clearly speaks of the calculation forthe premises, excluding the basements and also the first and secondfloors. It is true, it is found that the tenant premises should beused for the normal business purpose and it would mean that theproperty which was actually been demised must be used for normal use.It is true that in the schedule of the property the entire propertyis found and it is pertinent to point out that there is not onlyexclusion of few area made but there is also a specific measurementof the property for which the rent was calculated and it was shown asonly 49570 sq.ft. It would indicate the fact as per the leaseagreement the appellant can use the property only to an extent of49570, the basement area and the first and second floors is outside49570 sq.ft. Under such circumstances, the contentions putforth bythe learned counsel for the appellant that the schedule of propertycovers the entire property and therefore, he can use it for normalbusiness cannot be countenanced.13. As regards the other contention of the learned counsel thatfor the past 5 years the appellant/defendant has been using the samefor the said purpose, as now complained of by the plaintiff, itcannot now be permitted. It is a fit case where unlawful act of theappellant, in breach of agreement, must be restrained. Under suchcircumstances the trial Court is perfectly correct in granting theinterim injunction as prayed for and the same has to be sustained.14. In so far as the second part of the order is concernedi.e., granting interim mandatory injunction, the Court is able to seesufficient force in the contention putforth by the learned seniorcounsel. It was case where the plaintiff sought for permanentinjunction simplicitor. There was not even the relief of mandatoryinjunction asked for. It is well settled principle of law thatinterim mandatory injunction should be granted by a Court when extra https://hcservices.ecourts.gov.in/hcservices/ ordinary circumstances prevail. When such a relief was not asked forin the main relief in the suit, no question of granting interimmandatory injunction would arise. Under such circumstances, that partof granting interim mandatory injunction has got to be vacated,accordingly, vacated. 15. Therefore, the first part of relief granting interiminjunction by the learned single Judge is sustained. The second partyof the relief granting interim mandatory injunction is set aside.Accordingly, the appeal is disposed of. No costs. Consequently,M.P.No.1 of 2009 is closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarvsiToThe Sub Assistant Registrar,Original Side, High Court,Madras.+1 cc to Mr.Pushpa Menon, Advocate, SR.No.42361+1 cc to Mr.P.B.Ramanujam, Advocate, SR.No.41674 OSA.No.257 of 2009MRD {CO}TP/7.9.2009.