Delhi District Court
M/S Modi Infosol Pvt. Ltd vs M/S Architect Vistasp And Associate And ... on 16 October, 2024
IN THE COURT OF Ms. NEELAM SINGH
DISTRICT JUDGE (COMM-02),
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS (COMM) 561/22
M/s Modi Infosol Pvt Ltd.
Through its Authorized Representative
Having office at:
D-168, 2nd Floor, Okhla Industrial Area
Phase-I, New Delhi-110020 ..... Plaintiff
Versus
1. M/s Architect Vistasp & Associates
(Through its Proprietor)
2. Mr. Vistasp Minoo Bhagwagar (Proprietor)
M/s Architect Vistasp & Associates
Both having office at:
B-38, Second Floor, Okhla Industrial Area,
Phase-I, New Delhi-110020 .....Defendants
Date of Institution: 02.06.2022
Arguments concluded on : 26.09.2024
Date of Judgment: 16.10.2024
JUDGMENT
1. By this judgment, I shall decide the present suit filed by M/s Modi Infosol Pvt Ltd (hereinafter referred as plaintiff) seeking relief of recovery of Rs. 1,89,95,368/- (Rupees One Crore Eighty Nine Lakhs Ninety Five Thousand Three Hundred and Sixty Eight Only) on M/s Architect Vistasp & Associates (hereinafter referred as defendant).
The crux of facts stated in brief is noted below:
CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 1 of 21Case of the plaintiff;
2. (a) That the plaintiff is the owner of the built up property bearing no. B-38, Okhla Industrial Area, Phase-I, New Delhi- 110020 consisting of basement, ground, first and second floor. That the plaintiff operates its offices from first floor of the above mentioned property and the defendant is running its office from the second floor of the property in question (hereinafter referred to suit property).
(b) That defendant no.2 is the sole proprietor of defendant no.1 and the defendant no.2 is responsible for management of its day to day affairs and defendants are indulged in the business of Architecture, Interior Designing & Construction Consultancy having office at the above mentioned address.
(c) That in the month of January, 2019, the defendants approached the plaintiff for lease of second floor portion of the suit property and after settling all the terms and conditions, the plaintiff agreed to hand over the second floor portion on lease to the defendants. In this regard a Lease Deed dated 16.01.2019 was executed between the parties of the suit and the same Lease Deed was registered on 29.03.2019 vide registration no. 2368.
(d) That in the lease deed it was settled between the parties that the monthly rent for the property is fixed @ Rs. 1,25,000/- p.m. for the first year with 5% increase in the monthly rent every year and the period of lease has commenced from 1st March, 2019 to 29th February, 2024.
(e) It is the case of the plaintiff that premises in question was rented out only for second floor without roof right but under the CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 2 of 21 garb of renovation, defendants constructed staircase from second floor in such a manner that access to terrace can only be from second floor and there was no independent entrance to terrace as existed earlier to leasing of premises.
It is the case of the plaintiff that since inception of the tenancy defendants neither cared for their obligations under the lease agreement nor as a neighbour. It is submitted that defendants, in most negligent manner left the taps at terrace open during the holidays in the office of the defendant due to which there was water logging problem and false ceiling in plaintiff's office and bathroom was damaged.
(f) It is further submitted that these illegal acts and deeds of the defendant no.2 did not even stop at this and the demised premises had a lift shaft boundary wall at Second floor which has been illegally demolished by defendants after occupation of the demised premises and an illegal room for their illegal usage has been built. It is submitted that the demolition of lift boundary wall and construction of room in place has structurally altered the leased premises without the knowledge or consent of the plaintiff and in violation of express terms of lease agreement.
(g) That the plaintiff has requested the defendants several times to pay their proportionate share of security charges for the common guard for the building but the same have been avoided with one pretext or other. The dues towards the security charges w.e.f. March, 2019 to August, 2021 remains unpaid and defendant is liable to pay the same.
(h) It is further submitted that without obtaining the CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 3 of 21 permission/consent from the plaintiff, the defendants allegedly got re-waterproofing done by themselves worth Rs.5,60,500/- (Rupees Five Lakhs Sixty Thousand Five Hundred Only) and accordingly, in an illegal and unreasonable manner defendants started deducting the alleged amount of Rs.5,60,500/- from the agreed rent payable to plaintiff which is in complete defiance of terms of the lease agreement signed between the parties. It is submitted that such a deliberate and willful act of Defendants not paying complete rent kept the rent in arrears for more than four months from August, 2019 to November, 2020 without any reason and deducted Rs.82,592/- per month for the above said period, thus defendants are in arrears of Rs.3,30,000/- without any prior approval of the plaintiff.
(i) That plaintiff company requested/demanded agreed monthly rent from defendants for the month of August, 2019 to November, 2019 which is due in advance on 10th of every month however, defendant no.2 unilaterally deducted from rent payable alleged re-water proofing expenses at his whims and fancies and when plaintiff demanded full rent, defendant no.2 illegally deposited unilaterally partial rent @ of Rs.64908/- (Aug, 2019 to Nov, 2019), in plaintiff's bank account.
(j) Thereafter, plaintiff served a legal notice dated 07.09.2019, which was sent on 11.09.2019 to the defendants through registered post and speed post and demanding defendants to (1) Restore illegally constructed room over the lift shaft boundary wall space to its original structure (2) Rs.10,000/- damage per day for delay payment of rent beyond 10th of month (3) Pay the CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 4 of 21 balance rent of Rs.82,592/- with interest @ 18% p.a. from the due date till realization (4) Pay damages incurred Rs.30,000/- due to falling of fall ceiling caused to water logging on terrace (5) Pay the proportionate security charges amounting to Rs.1,02,000/- for the period of January, 2019 to August, 2019 with immediate effect but this was deliberately not done despite several requests and legal notice sent with the said demand. Since the defendants failed to make any such aforesaid payment and hence, the present suit.
Case of the defendant;
3. Written Statement has been filed wherein the defendant has denied the case of the plaintiff by submitting that defendant has no liability towards the plaintiff, rather, it is the plaintiff who has to make the payment of Rs. 2,60,000/- alongwith damages to the defendant which defendant has incurred for re-waterproofing of the demised premises.
4. Replication has been filed on behalf of the plaintiff, where he has reiterated the submissions made in the plaint and has denied the submissions made in the Written Statement of the defendants.
5. Upon completion of the pleadings, the following issues were framed on 31.10.2022:
1. Whether the plaintiff is entitled for recovery of arrears of rent of Rs. 3,30,368/- alognwith interest as prayed for? OPP
2.Whether the plaintiff is entitled for damages/mesne CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 5 of 21 profits, if so, at what rate and what amount? OPP
3. Whether the plaintiff is entitled for decree of Rs.
30,000/- as damages due to false ceiling in the bathroom of the suit property?
4. Whether the plaintiff is entitled for security charges for the period from January 2019 to January 2021 as prayed for?
5. Whether the plaintiff is entitled for common cleaning charges of Rs. 1,60,000/- as prayed for?
6. Whether the plaintiff has committed breach of terms and conditions of the lease deed dated 16.01.2019? OPD
7. Relief.
Evidence of PW-1
6. (a) The matter then was kept for evidence. In order to prove the case plaintiff has examined Director of plaintiff company Sh. Shyam Sundar Modi as PW-1, who has tendered his evidence by way of affidavit Ex. PW1/A. He also relied upon following documents:
1) Company Registration Certificate is Ex.PW1/1.
2) GST Certificate is Ex.PW1/2 (colly).
3) Copy of Board Resolution is Ex.PW1/3 (OSR)(P1).
4) Copy of Lease Deed dated 16.01.2019 is Ex.PW1/4 (OSR).
5) Original photographs regarding proof of damage is Ex.PW1/5 (Colly).
6) Copy of email dated 11.07.2019 is Ex.PW1/6A.CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 6 of 21
7) Copy of email dated 13.07.2019 is Ex.PW1/6B.
8) Original photographs of the illegal construction is Ex.PW1/7.
9) Legal notice dated 07.09.2019 along with postal receipts dated 11.09.2019 are Ex.PW1/8 and Ex.PW1/8A (OSR) respectively.
10) Reply to legal notice dated 25.09.2019 is Ex.PW1/9.
11) Legal notice dated 01.10.2019 is Ex.PW1/10 along with postal receipts is Mark A.
12) Reply of legal notice dated 16.10.2019 is Ex.PW1/11.
13) Certified copy of pre-litigation mediation report is Ex.PW1/12.
14 ) Copy of sale deed dated 23.08.2021 is Mark B. 15 ) Certificate u/s 65B of Indian Evidence Act is Ex.PW1/13.
(b) He was cross examined by Ld. Counsel for defendant. The relevant portion of his cross examination is reproduced herein under:
"I am B.com passed. It is correct that I have not filed board resolution dated 14.01.2019 authorizing Sh. Shyam Modi to sign the lease deed Ex.PW1/4.
Que 1. I put it to you, did you raise any invoices for claiming cleaning expenses for January 2019 to August 2021, what do you want to say?
Ans. Yes, we have raised invoices for claiming cleaning charges for the period March 2019 to August 2021.
I do not remember when first invoice was raised. It is incorrect to suggest that the payment of invoice for above-mentioned period for cleaning expenses were refused by the defendant on account of being not applicable. It is correct that there was no agreement between plaintiff and defendant for payment of the cleaning expense by the defendant.
It is correct that there was no agreement for the payment of security charges between the plaintiff and defendant. (Vol.) There was an oral understanding between the parties for payment of security charges. It is wrong to suggest that there was no oral agreement between the CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 7 of 21 parties for the payment of security charges to the plaintiff. It is correct that a bare shell floor was handed over to the defendant no.1 on lease and the complete interior work was carried out by the defendant at his own expenses. It is wrong to suggest that defendant had informed that he has to invest 1.25 Crores in the interiors of the leased premises. I my knowledge the water proofing of the leased premises was carried out only once and the same was got done by my through a vendor suggested by the defendant in the year 2019. I do not remember the name of the vendor. I do not remember the expense of the same. I do not know if there was a water seepage in the building after the water proofing got done. I do not know if the water proofing of the leased premises got done by the defendant by Geeta Enterprises later. It is wrong to suggest that I had offered to adjust 25% of the water proofing expenses carried out subsequent to the water proofing got done by me on 24.12.2019. It is incorrect to suggest that the defendant had shared a 10-year guarantee against water seepage from the vendor Geeta Enterprise and the invoice as well as quotation. I do not remember if the defendant had ever given any reminders for repair of water seepage in the leased premises. The defendant had never informed me about the loses due to water seepage in the leased premises along with photographs. I cannot tell at this stage as to what amount of actual rent was due on 01.10.2021 from the defendant. I can check and tell the same. It is correct that the defendant has deducted Rs.82,592/- for 4 months between August 2019 - November 2019 from the rent. Vol. We had received short amount of Rs.82,592/- during this period. There was no outstanding in the rent other than the amount deducted between August- November 2019. I do not remember if the defendant had offered to handover 35 advanced cheques towards rent for the period from 01.04.2019 - 28.02.2022. The leased premises to was sold some other party in August 2021. We had informed the defendant about the sale of the leased premises. It is wrong to suggest that the plaintiff had not informed the defendant about the sale of the leased premises. I had informed the defendant about the sale of the leased premises personally, telephonically and may be through email. It is wrong to suggest that defendant was never informed about the sale of the leased premises. It is wrong to suggest that there is no amount due upon the defendant. It is wrong to suggest that it is in fact the defendant owes Rs.2,60,000/- from the plaintiff. It is wrong to suggest that there were no damages. It is wrong to suggest that the present suit has been instituted to extort money from the defendant. It CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 8 of 21 is wrong to suggest that no amount is recoverable against security, maintenance or any other expenses from the defendant".
7. (a) Thereafter, matter was kept for defence evidence. In order to prove the case defendant has examined three witnesses. He has examined Sh. Vistasp Minoo Bhagwagar as DW-1 who has tendered his evidence by way of affidavit Ex.DW1/A and also relied upon the photograph Ex.DW1/1 (colly) and certificate under section 65B Indian Evidence Act Ex.DW1/2. He was cross examined by Ld. Counsel for plaintiff. The relevant portion of his cross examination is reproduced herein under:
"The document Ex.DW1/A is my affidavit bearing my signatures at point A and B. I know the contents of the said affidavit. The document Ex.PW1/4 is the lease agreement which was executed between me and plaintiff. I have signed the said documents after going through the contents of the same. It is wrong to suggest that on 02.08.2019, my employee left the roof tap open due to which there was water logging in the bathroom. It is correct that the access to the roof was through the lease premises. It is correct that the access to the roof was not available when the leased premises was locked and nobody could access the roof in my absence. (Vol. It was as given by the plaintiff on lease). We have not broken any lift shaft in order to create a store room out there. Whatever we have done is done with joint consent of the landlord and it is openable in nature. I have not taken any written consent from the landlord. It is wrong to suggest that I have structurally damaged the suit property. It is correct that I had received notice and various emails from the plaintiff which are already Ex.PW1/6A and Ex.PW1/8. It is wrong to suggest that we have violated the lease agreement specifically clause 12 of the lease agreement. I am not aware whether the security charges of Rs. 12,750/- per month w.e.f. March 2019 till August 2021 has been paid or not. It can be explained only by my office team. I have received emails and notices in this regard and we have made minor adjustments with the landlord. We have provided the contractor for internal work in the building. Landlord has not made any payment to the contractor for the internal work done in the building. It is correct that the internal work in the building was done under my supervision.CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 9 of 21
It is correct that we had asked the landlord to carry out the waterproofing work again in the premises after sometime. Waterproofing of the building was an external job and not an internal job. It is wrong to suggest that waterproofing has been done by my contractor under my supervision. (Vol. Landlord has got the waterproofing done and not by us). We have written emails to the landlord that waterproofing has not been done properly in the building and there are leakages in the building. Thereafter, we have done the waterproofing with the knowledge of the landlord. I have not placed on record any such email/communication showing knowledge of the landlord, however, I have these emails with me and I can produce before the court. It is wrong to suggest that while getting the work of waterproofing done, I have not taken any consent from the landlord. I have paid roughly Rs. 5,80,000/- on the repair work done and I have placed all these bills before the landlord and I have only asked for 50% of the abovesaid bill being a good tenant. I have sent the bills and emails of the abovesaid work to the landlord for its payment, however, I had not placed on record any such emails/bills. I have made all the payments regarding the rent and only deducted four installments of the abovesaid amount to the tune of 50% i.e. Rs. 2,90,000/- in four installments. I have not taken any permission from any government authority for getting the repair work done in the rented premises. I have not filed any claimed petition before any court for the amount of Rs. 2,90,000/-. It is wrong to suggest that I have arbitrary deducted the amount of Rs. 2,90,000/- from the rent amount. It is correct that in the clause no.3 of the document Ex.PW1/4 it is mentioned that lessor has to pay Rs. 10,000/- per day if the rent of any particular month is delayed by 10 th of any successive month. It is wrong to suggest that we have not made the payment of rent for the period of August 2019 to November 2019. I have not placed on record any receipt showing the complete payment to the landlord. It is correct that the document Ex.PW1/A i.e. legal notice was received by me. It is correct that in the legal notice, the landlord demanded damages of Rs. 10,000/- per day for delay in payment of rent. I have not made any payment after receipt of legal notice qua this clause in the legal notice. The contents of lease deed (clause 25) Ex.PW1/4 are matter of record. The legal notice Ex.PW1/10 dated 01.10.2019 is part of record. It is correct that after receiving the said legal notice I have not vacated the lease premises within 15 days. The contents of lease deed (clause 21) Ex.PW1/4 are matter of record. The penalty clause in the lease deed CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 10 of 21 is also a matter of record. It is wrong to suggest that I was illegally occupying the premises in question from the date of legal notice till the sale of the property on 23.08.2021. It is wrong to suggest that we have liability of Rs. 1,89,95,368/-".
(b) Defendant has examined Sh. Perwaiz Kamal as DW-2 who has tendered his evidence by way of affidavit Ex.DW2/A and relied upon Copy of emails Ex.DW2/1 (colly) and Certificate under section 65B Indian Evidence Act Ex.DW2/2. He was cross examined by Ld. Counsel for plaintiff. The relevant portion of his cross examination is reproduced herein under:
I do not have any authority letter or any resolution from the defendant company to depose in the present matter today. I am aware about the contents of my affidavit. It is correct that we have received the reply of one or two emails sent by us. I do not remember whether the plaintiff gave his consent for re-waterproofing upon the suit property in any reply of the emails. (Vol. Verbally in our communications the plaintiff had allowed the same). It is correct that I have not mentioned this verbal communication in my affidavit. I am working as a Director (project) with the defendant company since 2018-19 and before that I was working as a Project Manager. It is correct that the lease agreement Ex.PW1/4 was executed between the plaintiff and defendant in my presence. It is wrong to suggest that the person who carried out the waterproofing work initially for the plaintiff in the leased premises was known to the defendant company. It is wrong to suggest that the plaintiff company had got the waterproofing work done on the leased premises as per the suggested contractor of defendant company. (Vol. The waterproofing work was not completed). At this stage, witness has been shown the affidavit. It is correct that I have not specifically mentioned in my affidavit in chief that the waterproofing work was not complete. (Vol. I have mentioned in para 2 in my affidavit that I have written several emails to the plaintiff regarding the waterproofing problem). I do not remember if the plaintiff company has permitted the defendant company to carry out the waterproofing work itself. I cannot say that any recovery suit regarding recovery of amount of re- waterproofing has been filed by the defendant against the plaintiff. I have been directed by the company to depose before the Hon'ble Court today in the present matter. It is correct that I have not sought CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 11 of 21 any amount in my email as it is not my job and it is the job of finance department. It is wrong to suggest that I am deposing falsely.
(c) Defendant has examined Sh. Naveen Karwal as DW-3 who has tendered his evidence by way of affidavit Ex.DW3/A and relied upon following documents:
1. Copy of invoices regarding security charges is Mark-A.
2. Copy of e-mail offering post dated cheques alongwith annexures and photocopy of the cheques is Ex. DW3/1 (Colly).
(Objected to the mode of proof. Objection recorded. To be taken up at the time of final adjudication)
3. Copy of invoice is Ex. DW3/2 (OSR).
4. Copy of performance guarantee certificate is Ex. DW3/3 (OSR).
5. Copy of e-mails exchanged between plaintiff and defendant company is Ex. DW3/4 (Colly.).
6. Copy of e-mail dated 24.12.2019 is Ex. DW3/5.
7. Photographs before and after the work carried out in the premises is Ex. DW3/6.
8. Certificate u/s 65-B of Indian Evidence Act is Ex. DW3/7.
He was cross examined by Ld. Counsel for plaintiff. The relevant portion of his cross examination is reproduced herein under:
"I am aware about the contents of my evidence affidavit. The document Ex. DW3/A was prepared in the office of defendant's counsel. I have signed the same in the office of defendant's counsel. I have not brought any authority letter from the defendant company to depose before this Court. I am working with the defendant company for the last about 16 years. After consulting the proprietor, I have refused for not making the payment of common security charges. I have not filed any consent letter or conversation regarding the refusal CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 12 of 21 of payment of common security charges as mentioned in my document Mark-A. It is correct that I am fully authorized to take the decision on behalf of defendant company. I do not remember the exact monthly rent of the premises leased by the plaintiff to the defendant. It is correct that the monthly rent was Rs. 1,47,500/- including GST. It is correct that the defendant company not paid the full amount of Rs. 1,47,500/- (Between 07.07.2019 to 07.12.2019). (Vol. We had made deductions from the rent on account of water proofing expenses. I cannot tell the exact amount of deduction, the same is mentioned in my e-mail sent to the plaintiff ). It is correct that the defendant company rendered the rent at the rate of Rs. 64,908/- for the period August 2019 to November, 2019 after deducting the water proofing charges. It is wrong to suggest that the water proofing was done for the second time as per the wishes of company/ defendant. (Vol. We had informed the plaintiff several times through e-mails, phone calls and meetings). At this stage, witness is shown the Court file to point out if there are any mails pertaining to permission of water proofing work for the second time. It is correct that no such e-mail is there on record. I have not filed any minutes of meeting, MOU or resolution regarding the meetings held for re-water proofing. I have not filed any e-mail on record which shows that we have taken the consent for water proofing for the second time. (Vol. The plaintiff had agreed to bear 25% after the work was completed by the defendant on its own.) It is correct that the employee of the defendants used to share the common passage/ stairs of the suit premises. It is correct that the defendant did not pay the charges regarding common cleaning and security. (Vol. As per registered lease deed, no such charges are mentioned in the document Ex. PW1/4). It is correct that neither the defendant served any legal notice regarding the charges of re-water proofing nor filed any suit for recovery against the plaintiff for claiming re-water proofing amount or damages. However, we had sent e-mails and photograph of the damage caused and videos to the plaintiff. It is correct that Ex. DW3/6 (Colly.) does not show any damage. It is correct that the defendant did not accept the offer of the plaintiff i.e. 25% amount accepted to be payable by the plaintiff for re-water proofing work. It is correct that I have not filed any reply to the e-mail of the plaintiff in my affidavit. It is correct that the agreed rent has not been paid by the defendant. (Vol. We have paid the rent after deducting the charge for water proofing treatment on monthly basis.) I do not know whether any legal notice was sent by the plaintiff to the defendant CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 13 of 21 regarding demand of deficit rent. I cannot tell whether the defendant made the payment of entire rent to the plaintiff after receiving the legal notice. (Vol. I am not aware whether any notice has been received by the defendant or not.) It is not in my knowledge that plaintiff has sent a letter to the defendant company for termination of lease deed. I am also not aware if after sending the termination notice, plaintiff has terminated the lease of the defendant. It is wrong to suggest that I am deposing falsely".
Thereafter, matter was fixed for final arguments.
8. Final arguments heard. Record perused carefully. I have gone through the testimony of the plaintiff's witness and on the basis of documents, pleadings and testimony of witnesses, my issue wise findings are as follows:
Issue No.1: Whether the plaintiff is entitled for recovery of arrears of rent of Rs. 3,30,368/- alongwith interest as prayed for? OPP
9. The Onus to prove the said issue was upon the plaintiff. It is the case of the plaintiff that defendant has executed a lease deed for second floor of the property bearing No. B-38, Okhla Industrial Area, Phase-I, New Delhi-110020 vide lease deed dated 16.01.2019 Ex.PW1/4. As per this lease deed, the defendant has a liability to pay the rent for an amount of Rs. 1,25,000/- per month excluding GST and the rent is to be paid in advance by 7th day of each English Calendar month. It has also been agreed upon between both the parties that the rent shall be escalated @ 5% every year on the last paid monthly rent. This lease deed has been executed on 16.01.2019 and the total lease period was 5 years commencing from 1st March 2019 to 29th February 2019. As per clause 11 of the lease deed, the defendant had deposited with the CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 14 of 21 plaintiff an interest free security of Rs. 3,75,000/- and it was agreed upon between both the parties that this interest free security amount of Rs. 3,75,000/- shall be refunded to the lessee only at the time of giving peaceful vacant possession of the premises to the plaintiff by the defendant after deducting the outstanding dues or any wear and tear/damages to the property. However, it was made clear in clause 11 (b) that the security deposit will not be adjusted in the rent and it would only be refundable.
It is further the case of the plaintiff that defendant started defaulting in payment and a legal notice dated 01.10.2019 clearly stating that defendants are in arrears of rent for two consecutive months and they have been called upon to clear the arrears of rent in full or failing which they have been called upon to vacate the premises as the defendants are in breach of clause 25 of the lease agreement dated 16.03.2019. Plaintiff has examined Sh. Shyam Sunder Modi in support of his case and he has been cross examined at length by Ld. Counsel for defendant. It has come in the cross examination of plaintiff that defendant has deducted Rs. 82,592/- for four months between August 2019 to November 2019 from the rent. PW-1 has also admitted that there was no outstanding in the rent other then the amount (Rs. 82,592/-) deducted between August 2019 to November 2019. It is also an admitted case that during the lease period in question the lease premises has been sold by the plaintiff to some other party.
Defendant has also examined his witness in support of its case. DW-1 has categorically admitted in his cross examination CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 15 of 21 that defendant has deducted four installments of the amount to the tune of 50% i.e. Rs. 2,90,000/-. The witness has admitted that defendant has not filed any claim petition before any court for the amount of Rs. 2,90,000/-. From the above discussion, it is clear that defendant has defaulted in the rent and accordingly, in these circumstances, the plaintiff is entitled for the recovery of arrears of rent to the tune of Rs. 2,90,000/-. Hence, this issue is decided in this manner in favour of plaintiff and against the defendant.
Issue No.2: Whether the plaintiff is entitled for damages/mesne profits, if so, at what rate and what amount? OPP
10. The Onus to prove the said issue was upon the plaintiff. The case of both the parties hinges around the fact that the lease deed was executed between them for the second floor and defendant has spent a considerable amount for the fittings and furnishing of the leased premises but thereafter, one issue pertaining to the seepage of the roof has occurred and both the parties have taken their different stands. It is the case of the plaintiff that since the entire second floor was in the care, control and possession of the defendant and the employees of the defendant had failed to turn off the water taps on the second floor for the entire night and also plaintiff was not having any access to enter the premises, so, it caused a huge water logging resulting into the seepage and also the damage of the portion of the plaintiff at the first floor.
On the other hand, it is the case of the defendant that after the lease agreement was executed for second floor, there occurred seepage in the premises and plaintiff assured to get the CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 16 of 21 waterproofing of the roof top done and accordingly, defendant helped in naming one person to the plaintiff for conducting this work of waterproofing and the said waterproofing was done. It is further the case of the defendant that after sometime again the problem of seepage started and defendant was left with no other option but to call the person for further repair and waterproofing and has spent a considerable amount which the plaintiff is liable to pay.
In support of their case, both the parties have led evidence. Documents have been placed on record and the witnesses have been examined. During cross examination of DW-1, he has denied the suggestion that on 02.08.2019, his employees left the roof tap open due to which there was water logging in the bathroom. Though he has admitted the fact that the access to the roof top was not available to any other person except the defendant. The witness has also admitted that they have told the plaintiff to carry out the waterproofing work again as the initial work of the waterproofing was not effective and there were leakages in the building. The witness has submitted that he has written emails to the plaintiff for conducting the waterproofing and thereafter, they did the waterproofing and spent an amount of Rs. 5,80,000/- on such work.
It is the case of the plaintiff that for the alleged re- waterproofing defendants have deducted 50% of the amount which comes out to Rs. 2,90,000/- from the rent as the plaintiff has not paid the said amount. It is an admitted fact that no case for recovery of any amount has been filed by the defendant. Plaintiff CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 17 of 21 has claimed the damages @ Rs. 10,000/- per day w.e.f. 10.08.2019 to 01.10.2019 for an amount of Rs. 6,20,000/- for the period of 62 days i.e. 62x10,000/- which comes to Rs. 6,20,000/-.
I have gone through the lease agreement Ex.PW1/4 and as per clause (3) which is reproduced herein under:
Clause 3: That the lessor will have to pay the damages of Rs. 10,000/- per day if the rent of any particular month is delayed by 10th day of its successive month.
Needless to say that the lease deed has been admitted by both the parties, rather, have been executed and both the parties are signatory to these documents. Accordingly, as per this document, I am of this considered opinion that the plaintiff is entitled for damages to the tune of Rs. 6,20,000/-. Hence, this issue is also decided in favour of plaintiff and against the defendant.
Issue No.3: Whether the plaintiff is entitled for decree of Rs. 30,000/- as damages due to false ceiling in the bathroom of the suit property?
11. Vide prayer clause (d) plaintiff has claimed a decree of Rs. 30,000/- as damages for the false ceiling in bathroom of plaintiff's company office. It was on the plaintiff to prove that due to negligence on the part of the defendant, there was water logging on the roof of the second floor causing damages to the bathroom of the plaintiff but no substantial evidence has been produced by the plaintiff in order to substantiate his assertion and in the absence of any cogent evidence produced by the plaintiff, this CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 18 of 21 issue is decided against the plaintiff.
Issue No.4: Whether the plaintiff is entitled for security charges for the period from January 2019 to January 2021 as prayed for?
12. It is the case of the defendant that the lease is to be commenced between the parties strictly on the basis of lease agreement Ex.PW1/4. I have gone through this document in detail and nowhere there is provision for security charges in the lease deed. It has also been admitted by the witness of the plaintiff in the cross examination that there was an oral agreement only. PW- 1 has admitted that there was no agreement for the payment of the security charges between the plaintiff and the defendant and it was only an oral understanding between the parties for the payment of security charges. No substantial evidence has been led by the plaintiff pertaining to the payment of security charges by the defendant and in the absence of any cogent evidence produced by the plaintiff, this issue is decided against the plaintiff.
Issue No. 5: Whether the plaintiff is entitled for common cleaning charges of Rs. 1,60,000/- as prayed for?
13. With regard to abovesaid issue also no substantial evidence has been led by the plaintiff and in the absence of the same, this issue is also decided against the plaintiff.
Issue No.6: Whether the plaintiff has committed breach of terms and conditions of the lease deed dated 16.01.2019? OPD CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 19 of 21
14. The Onus to prove the said issue was upon the defendant. No evidence has been led on behalf of defendant that plaintiff has breached the terms and conditions of the lease deed dated 16.01.2019. It is also admitted fact that defendant has not issued any communication in any form to the plaintiff mentioning the breach of terms and conditions of the lease deed at the hands of the plaintiff. It is also admitted fact that defendant has also not filed any suit for recovery of any sort of damages against the plaintiff. Though the defendant has brought a case before this court that he has got the work of waterproofing and has also paid an amount of Rs. 5,60,000/- for such work and for which plaintiff is entitled to pay half of the amount. But there is no such agreement in the lease deed and also there is no such communication on record and if there would have been the case it was prudent on the part of the defendant to file a case for recovery of such amount much less the counter claim or set off in their WS which has not been filed. In these circumstances, this issue is decided against the defendant.
Relief.
15. As regards the rate of interest claimed by the Plaintiff is concerned, I am of the considered opinion that as per the Judgment of Hon'ble Supreme Court in Central Bank of India Vs. Ravindra AIR 2001, Supreme Court 3095, the grant of pendente- lite and future interest is a subject matter of the discretion of the Court and not to be governed by the agreement between the parties. Accordingly in exercise of the discretionary power of this CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 20 of 21 Court, I have granted pendente-lite and future interest @ 6% p.a. to the plaintiff because Section 34 of CPC, 1908 as well as the provisions of the Interest Act, 1978, contemplate grant of interest at the rate of 6% per annum and because in the past decade, the nationalized banks have also granted interest at the rate of 5-6% per annum, on terms deposits.
16. As a net result of the aforesaid, the suit of the Plaintiff is decreed for an amount of Rs. 3,30,368/- + Rs. 6,20,000/- along with the interest pendente-lite and future interest @ 6% p.a. till its realization. The Suit of the plaintiff is decreed accordingly.
17. Decree sheet be drawn by the Reader of this Court and file be consigned to Record Room after due compliance.
Digitally signed by NEELAM NEELAM SINGH Announced & dictated SINGH Date: 2024.10.16 16:56:57 +0530 in the open Court on this 16th day of October, 2024 (NEELAM SINGH) District Judge (Commercial Court-02) South-East, Saket Courts, ND 16.10.2024 CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 21 of 21 CS (COMM)-561/2022
M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr.
16.10.2024 Present: Sh. Ankit Gupta, Ld. Counsel for plaintiff.
Sh. Jatin Kumar, Ld. Counsel for defendant.
Vide separate judgment announced in the open court, the suit of the plaintiff is decreed.
File be consigned to record room after due
NEELAM Digitally signed by
compliance. SINGH
NEELAM SINGH
Date: 2024.10.16
16:57:07 +0530
(NEELAM SINGH)
District Judge
(Commercial Court-02)
South-East, Saket Courts, ND
16.10.2024 jm
CS (COMM)-561/2022 M/s Modi Infosol Pvt Ltd. Vs. M/s Architect Vistasp & Associates & Anr. Page 22 of 21