Tenant Not Vacating - Advise Please !!

Sorry, - Item "C"of PRESENT SITUATION "should read "Lessee ants another 90 daysto vacate....  

If you believe the tenant that he will vacate the premises as promised in 90 days it is better to wait instead of going into litigation which is going to take much more time. If don't then issue a notice of termination of lease .Although termination of lease on expiry is automatic but as measure of caution give notice of 15 days as per the TP Act. You are entitled to damages at market value of rent of similar property after termination of lease. Unfortunately you can not evict him forcibly and have recourse to process of law only.

Thank you Mr. Harbhajan for taking the time to reply to my Query.

I am confused re Damages - I'd have thought the Landlord is entitled to the Quantified Damages as mentioned in the Lease Deed, whatever they are. Else what is the purpose of putting ithem in the Lease Deed ?

If the Landlord's entitlement is only upto the Market Value of Rent of similar property, then to all effect the Lease has no penalty clause and the Tenant can stay till evicted via Court Procedure while paying the Monthly Rent, which anyway he is paying !

Appreciate much your clarifications. Also look forward to inputs from others so as to understand the situation better.

Thanks again to all for their efforts !

Hardeep

The quantum of damages payale on breach of conract are controlled by law. first thing is that any damages so stipulated do not become payable automatically and they are to be adjudicated. Secondly it is to be seen that the damages stipulated are some what real  what a person in breach would suffer. or the sum mentioned is unreal by way of penalty. if it is by way of penalty then Courts would hesitate to award the sum so metioned and can award any sum less than that.   

Market value of rent at the time of release of lease would definitely be higher with the time. One of the reason of dispute between the landlord and tenant is that when tenant is asked to vacate, he can not find similar accommodation in the same rent, if he could then he would not be bothering to take rounds of court. For the landlord too if he gets competitive rent he would like the existing tenanat to continue rather risking an unverified tenant.

Thank you for responses. Mr. SKJ and Mr. Harbhajan.

My question is what is then the sanctity of the Contract ( Registered with the Sub Registrar Delhi )  if the terms clearly agreed upon between parties are not enforceable by law ?  If any term is not acceptable, the party is free to not enter into the contract. If it still does, then it is intending perhaps even at that time to commit fraud and surely the  courts would / should take cognisance of that ?

Is there any Case Law reference of this - specifically that the Quantified Damages Clause was ignored by the Court and the reasons thereof ? If so, I'd appreciate v. much the references Many thanks in advance !

In this case the tenant doesn't want to vacate, it seems, for the simple reason that he is using Residential Premises for Commercial purposes. Else he could v. well go to a Commercial place, pay the higher rents usualy prevalent there and get a long term lease made , as is normally done.

Of course no one wants to go to litigation. but how to try to settle - what would be the correct and proper mechanism to ensure quick vacation by the tenant , even if the Landlord is prepared to forego the damages as specified ? How would the Court arrive at an estimate of Reasonable Damages in such a case ?

Appreciate all inputs.

hardeep

Hi SKJ

Thank you for the comments. Please clarify :

a) I think you mean the Specific Liquidated Damages Clause, not the full agreement. Else of course the Tenant is a trespasser ( as he is , already,after the expiry of the Lease Deed on 4th May 2011 , per my understanding ). Am I right  ?

b) The entire city can not be handed over since that is not in the Landlord's posession to begin with. IMHO, such a stance will only belittle and trivialise the issue - which is - is a Contract  entered by Free Will of all parties valid or not in all the aspects clearly agreed upon without any compulsion on anyone ?

b) Case law Reference ?

What I see on the net so far is that Liquidated Damages define the upper limit, The Courts consider that , as well as other factors before award. In fact in one case the Liquidated Damages clause has been held valid . Pl see :

https://legalservicesindia.com/article/article/ongc-v-saw-pipes-584-1.html

but it has also been said therein the Courts will have the final say.

This has already come in for severe criticism and I quote  from the above link only :

" Mr Fali. S. Nariman, one of the greatest lawyers of our generation, remarks on the judgments as having ‘virtually set at naught the entire Arbitration and Concillation Act of 1996….To have introduced by judicial innovation – a fresh ground of challenge and placed it under the head of public policy was first contrary to the established doctrine of precedent. The division of 3 judge bench binding on a bench of 2 judges. It was also contrary to the plain intent of the 1996 the new need of finality in alternative method of dispute resolution without court interference.

If courts continue to hold that ( they have - put in by HS to clarify ) the last words on facts and on law not withstanding consensual agreements  to refer matters necessarily involving facts and law to adjudication by arbitration the 1996 Act might as well be scrapped. The division bench of 2 judges of the court has altered the entire road map of arbitration law and put the clock back to where we started under the old 1940 Act.”

Just for information / interest to all on this thread.

All inputs welcome -As Mr. Fali himself points out this is a fundamental issue of the entire Contracts Act.

Hardeep