ROOP KUMAR Vs. MOHAN THEDANI

JUDGEMENT

(1.) This Regular First Appeal is filed by the appellant, who was defendant in the suit, against judgment and decree dated 19/12/1996 passed by the learned Additional District Judge, Delhi in Suit No.256/91 filed by the respondents (plaintiffs in that suit) thereby decreeing the said suit in favour of the plaintiffs and against the defendant/appellant. The impugned decree runs as follows:

(2.) Respondent No.1 Sh. Mohan Thedani is a tenant in respect of premises No.15A/16 (Shop No.1), Ajmal Khan Road, New Delhi at a monthly rent of Rs.2,000.00. The said shop was registered under the Delhi Shops and Establishment Act as M/s Esquire with respondent No.1 as his sole proprietor. This name was changed to M/s Purshottam's subsequently. Respondent No.2 who is father of respondent No.1, was General Power of Attorney holder of the respondent No.1. Respondent No.2 acting on behalf of the respondent No.1 entered into Agreement dated 15/05/1975 with the appellant on the terms and conditions mentioned in the said Agreement. No nomenclature is assigned to this Agreement. This Agreement discloses that the appellant is the proprietor of M/s Roop Tailors and Drapers which had been functioning from A-7, Prahlad Market, Deshbandu Gupta Road, Delhi. He was anxious to shift his business on main Ajmal Khan Road, New Delhi in the premises of respondent No.1. For this purpose Agreement in question was entered into and the terms and conditions mentioned in this Agreement are described as 'agency terms and conditions'. As per this Agreement, respondent No.1 was to provide his shop where the stitched garments and materials were to be kept for display and calls. Measurements, cuttings and fittings were to be done in the premises. Appellant was to cut/fit and get the garments tailored and look after the tailoring workshop at Prahlad market and was to supply the materials (suiting, shirting etc.) for sale. He was also to provide for all kind of stationary and packing materials etc. and was responsible for keeping the staff and paying salaries to them. Respondent No.1 was to receive, by way of commission, 12 per cent on tailoring and 3 per cent on sale of materials of all kind. This commission was to be paid by 10th of every month. The appellant was supposed to keep true accounts of dealing in tailoring and cloth materials etc. with copies of such accounts, as per proforma, statements monthly to the respondent No.1. The Agreement further specifically mentions vide para 3 thereof, that the respondent No.1 was the legal tenant of the premises and rent was to be paid by the respondent No.1 to the landlord. In para 9 it-was again clarified that the respondent No.1 is the full and legal tenant of the premises of the concerned business and shall remain full tenant of rights of possession of the premises and appellant had nothing to with the tenancy/possession. This Agreement was for a period of five years and renewable for a further period of five years with mutual consent on fresh terms as may be agreed upon at that time.

(3.) It is the case of the respondents that the Agreement was duly acted upon by the parties in the letter and spirit. Possession of the premises remained with the respondents and at no time it was vested with the appellant. However, for efficient discharge of his duties towards his customers, the appellant brought his tailors in the said shop. The appellant rendered true and faithful accounts up to 30/06/1976 and made the payment thereof by means of cheques and otherwise. Thereafter although he rendered accounts up to 30/03/1978 but did not pay the commission as per the said accounts and pleaded financial hardship. After 30/03/1978 appellant neither rendered accounts nor made any payment. Respondents served legal notice dated 24/01/1979 upon the appellant calling upon him to clear the commission due and render the accounts. No reply was given by the appellant. After the expiry of the Agreement, the appellant was asked to discontinue the business and vacate the premises in question but he criminally trespassed into the same and continued to occupy the same against the wishes and consent of the respondents. Proceedings under Section 145 of The Code of Criminal Procedure, 1973 were initiated by the respondents. On the other hand, appellant also filed a suit for injunction. In the said suit statement was given by the respondents that they would not dispossess the appellant except in accordance with law. In these circumstances respondents filed suit No. 145/ 80 claiming various reliefs including possession, rendition of accounts and payment in accordance thereof till 14/05/1980 and damages for wrongful user and occupation of the premises w.e.f. 15/05/1980. In the plaint filed by the respondents, the Agreement was described as 'agency-cum-deed of licence'.