Delhi District Court
M/S Svm Networks Inc vs M/S Food Freshly Afc India Pvt. Ltd on 31 July, 2025
In the Court of Shri Ashutosh Kumar, District Judge (Commercial
Court)-01, Tis Hazari Courts, West District, Delhi
Cs (COMM)/ 737/2022
CNR No.DLWT01-008927-2022
M/s SVM Networks Inc.
Through Its Partner Sh. Yogesh Kumar
Regd. Office At:
4B/64, First Floor, Old Rajinder Nagar,
New Delhi
.......Plaintiff.
Versus
M/S Food Freshly AFC India Pvt. Ltd.
At: AH-203, Amrapali Village,
Nyay Khand 2, Indirapuram,
Ghaziabad.
Also At:
DSM-55, DLF Commercial Towers,
Shivaji Marg, Moti Nagar,
New Delhi-110015
.... Defendant
Date of Institution : 12-09-2022
Date of hearing of arguments : 29-07-2025
Date of decision : 31-07-2025
Plaintiff's counsel - Ms Aditi Aggarwal
Defendant's Counsel - Sh Amardeep Maini
JUDGMENT
1. Initially a suit for possession, recovery of Rs. 39,92,916/- qua arrears of rent, damages, maintenance and electricity charges Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 1 alongwith pendente lite interest @ 12% per annum, was filed by the plaintiff against the defendants. However, since an application was filed on behalf of the plaintiff stating that possession of the suit property was handed over by the defendant to the plaintiff and therefore relief no. (a) of the prayer clause of the plaint had become redundant and accordingly, there was no longer any need to decide the present suit for the purpose of possession and hence no issue qua the same was framed.
2. The suit was initially filed against the present defendant and its Director Kamal Kant Kothari. However, as per order dated 12- 09-2023 of Ld. predecessor, the said Director of the defendant M/.s Food Freshly AFC India Pvt Ltd, who was arrayed as defendant no. 2 was deleted from the array of parties on the ground that there was no personal allegation against him and accordingly an amended memo parties was directed to be filed by the defendant deleting defendant no. 2 Kamal Kant Kothari from the array of the parties, which was filed by the defendant on 10- 10-2023.
3. Briefly, stated the plaintiff, which is a partnership firm, having its office at 4B/64, First Floor, Old Rajinder Nagar, New Delhi, is the absolute owner of property bearing no. DSM-55, DLF Commercial Towers, Shivaji Marg, Moti Nagar, New Delhi-110015, having an area of about 1235 sq. ft. approx. (hereinafter referred to as the suit property), has filed the present Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 2 suit through one of its partners, namely, Yogesh Kumar, who has been duly authorized to initiate or defend any legal action vide resolution dated 16.03.2022 and is also well versed with the facts of the case, which are in his personal knowledge.
4. It is claimed by the plaintiff that Kamal Kant Kothari, who is one of the Directors of defendant M/s. Food Freshly AFC India Pvt Ltd., which is a company registered under the Companies Act, 2013, having its registered office at AH-203, Amrapali village, Nyay Khand 2, Indirapuram, Ghaziabad, Uttar Pradesh 201014, had approached the plaintiff to take the Ground Floor of the aforesaid suit property on lease/rent, for the purpose of running a commercial activity i.e. office/retail purpose and assured that all the terms of the lease deed would be fulfilled and rent would be paid timely whereupon the plaintiff agreed to give the suit property on lease to the defendant and accordingly the terms of the lease deed were reduced in writing vide registered lease deed dated 29.01.2020.
5. It is further the case of the plaintiff that suit property was let out to the defendants for a period of 36 months as per the terms of the lease deed and the tenancy period commenced from 15.01.2020 to 14.01.2023 on initial monthly rental of Rs. 74,000/- excluding GST (18%) and maintenance charges @ Rs. 20/- per sq. ft. approx. payable to DLF Utilities Ltc., which was to be paid on or before 21st Day of Each English Calendar Month in advance and Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 3 subsequently the rent was to be increased in the following manner:
15.01.2020 to Rs. 74,000/- + GST + Maintenance Charges 14.01.2021 15.01.2021 to Rs. 79,180/- + GST + Maintenance Charges 14.01.2022 15.01.2022 to Rs. 84,723/- + GST + Maintenance Charges 14.01.2023
6. It is further claimed that the the suit property was handed-over to the defendant after it paid the interest free security deposit of Rs. 2,20,000/- to the plaintiff. It was also agreed between the parties that the rent would be paid by the defendant without any delay and in case of failure in payment of rent for two consecutive months, the plaintiff would become entitled to terminate the tenancy qua the suit property and security deposit would be forfeited as per clause 1 (2) of the lease deed, which is reproduced as under:
'Clause 1(2): That the Lessee shall pay Rs. 2,20,000/- (Rs. Two Lacs Twenty Thousand Only) through RTGS/NEFT as Interest Free Security Deposit which shall be refunded only upon handing over of the physical, peaceful and vacant possession of the premises by the Lessee to the Lessor but subject to the necessary deductions/adjustments towards arrears if any kind that the Monthly Rent along with goods and services tax shall be paid through cheques favouring the above said M/S SVM Networks Inc. The cheques of rent amount would be honoured positively by the lessee. In case if any cheque of payment of Rent/Lease Money Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 4 Rejects OR not paid two times continuously, Then the lessee have to vacate the premises in the following month and the security amount shall be forfeited.'
7. It is the claim of the plaintiff that the defendant paid the rent only for a couple of months and thereafter stopped paying the same and as and when the plaintiff approached the defendant qua payment thereof, it made lame excuses and promised that the same shall be paid at the earliest. It is further averred by the plaintiff that the defendant also did not pay the maintenance charges, which were required to be paid over and above the said rent amount. It is also claimed that the defendant was also in arrears of electricity consumption charges.
8. Plaintiff has further claimed that plaintiff requested the defendant to pay the arrears of maintenance & electricity charges and provide no dues certificate from the maintenance agency. However, the said charges were not paid by the defendant and plaintiff apprehends that the concerned authority may disconnect the electricity supply on account of non-payment of electricity consumption charges. It is claimed that the electricity & maintenance facilities were being provided & managed by Shivaji Marg Condominium Association and as per the last invoice, the defendants was in arrears of Rs. 1,94,998/- towards maintenance and Rs. 10,525/- towards electricity, till the filing of the suit.
9. It is further the case of the plaintiff that the defendant also Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 5 restricted the plaintiff's entry into the suit property for inspection in order to prevent any structural change / alterations / any damage to the property despite the term of the lease deed, which clearly mentioned that the plaintiff shall be permitted to inspect the suit property at a reasonable time as and when necessary.
10.Plaintiff has claimed that the defendant has flouted the terms of the lease deed and did not pay the rent since 15.03.2020 and therefore the tenancy stood terminated from the said date. Plaintiff also served legal notice dated 21.01.2022 upon the defendant thereby terminating the tenancy of the defendant qua the suit property and called upon it to vacate and handover the peaceful possession of the suit property within a period of 15 days as per clause 3(6) of the lease deed but despite being duly served with the said legal notice, the defendant neither replied nor complied with the same in as much as that till date, the arrears of rental alongwith maintenance charge & electricity charges and GST @ 18% have not been paid by the defendant.
11.It is further claim of the plaintiff that since the suit property was given for commercial purposes, the plaintiff had filed for a pre- litigation mediation as per the requirement of the Law, which was filed on 02.03.2022 and notice was issued to the defendants for 28.03.2022.
12.It is also claimed by the plaintiff that since the defendant had flouted the terms of the lease deed and therefore the security Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 6 amount of Rs. 2,20,000/- stood forfeited and the plaintiff is now entitled for the amounts mentioned below:
A. Arrears of Rent from 15.03.2020 to Rs. 8,73,200/-
14.01.2021 @ Rs. 74,000 per month (Total Rs. 7,40,000/- + 1,33,200/- towards GST @18% per annum) B. Arrears of Rent from 15.01.2021 to Rs. 11,21,188/-
14.01.2022 @ Rs. 79,180/- per month (Total Rs. 9,50,160/- + 1,71,028/- towards GST @18% per annum) C Arrears of Rent from 15.01.2022 to Rs. 7,59,118/-
14.09.2022 @ Rs. 84,723/- per month (Total Rs. 6,77,784/- + 81,334 with GST @18% per annum) D. Damages from 06.02.2022 till date of filing Rs. 9,20,686/-
of the suit i.e. 14.09.2022 @ Rs. 1,25,000/-
per month (Rs. 4,166/- per day) i.e. 221 days E. Arrears of Maintenance till September, 2022 Rs. 3,04,160/- F. Arrears of Electricity till reading taken for Rs. 14,564/-
the month of May, 2022
Total: Rs. 39,92,916/-
13.Apart from the suit amount, the plaintiff has also claimed interest @ 12% p.a. on the said amount from the date of filing of the present suit till actual realization alongwith damages @ Rs. 4,166/- per day from the date of filing of the suit.
14.Summons of the suit were sent to the defendant and appearance was duly made on its behalf on 25-01-2023.
15.In its written statement, defendant in preliminary objections, inter-
Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 7alia, claimed that the suit of the plaintiff is liable to be dismissed as plaintiff has withheld vital documents in order to gain advantage over defendant, which is a fraud and fraud avoids all judicial acts due to non-disclosure of relevant documents. In this context, the defendant has placed reliance on the judgment of the Hon'ble Court in S.P. Chengalvaraya Naidu (Dead) By L.Rs. Vs Jagannath (Dead) By L.Rs. And Others and claimed that it is the duty of every litigant to come to the court with true case and to prove it with true evidence. It is further claimed by the defendant that plaintiff has suppressed material documents i.e. statement of account maintained by it regarding receiving of amounts from the defendants and also claimed that it had also suppressed material facts from this court. Defendant has claimed that it had paid an amount of Rs. 79,920/- on 2.02.2019, Rs. 79,920/- on 15.02.2020, Rs. 79,920/- on 30.07.2020, Rs 57,239/- on 2.09.2020. Rs. 39,294/- on 21.10.2020, Rs. 39,294/- on 21.10.2020 and Rs. 57,239/- on 02.01.2021. It is further claimed by the defendant that it had also spent an amount of Rs. 20,000/- on 17.12.2019 for construction and interiors, Rs. 1,00,000/- on 20.12.2019, Rs. 98,000/- on 14.01.2020 and Rs. 99,000/- on 21.01.2020. Defendant has further stated that the plaintiff also suppressed the fact that the defendant had also paid an amount of Rs 1,00,000/- on 04.11.2020, towards DLF maintenance through HDFC Bank. Defendant has further claimed that the plaintiff had also Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 8 suppressed the fact that the defendant had conveyed to the plaintiff that defendant was not in a position to continue the tenancy since there was no business due to Covid 19, whereupon it was mutually agreed that the rate of rent would be 50 percent of the agreed rent w.e.f. 15.03.2020 to 14.10.2020 and the plaintiff has also suppressed the fact that the plaintiff had sent tax invoices bearing nos. 14, 15, 16 & 17 showing therein the rate of rent as 37,000/- plus GST per month for 15.04.2020 to 14.05.2020.
16.It is further claimed by the defendant that plaintiff has intentionally suppressed that defendant no. 1 had terminated the lease agreement dated 19.01.2020 (correct date of lease agreement is 29-01-2020) and informed the plaintiff about the same by sending an e-mail dated 14.12.2020 (shiv2_delhi@yahoo) to one Yogesh, who has filled the present suit on behalf of the plaintiff, vide which it was informed that FFG Companies Group was completely bound by the current crucial COVID situation to take outstanding and unavoidable decisions for entire branches of FFG Companies, wherein it was clearly mentioned that they were bound to terminate the lease deed agreement dated 29.01.2020 qua the office space at DSM-55, DLF Commercial Tower, Shivaji Marg, Moti Nagar, New Delhi-15, which was admitted by the plaintiff and the parties to the lease agreement also acted upon the same. Defendant has further claimed that the plaintiff didn't issue tax invoice after the receipt of the said email and also didn't raise Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 9 any objection qua the termination of the lease deed. Defendant has also stated that the keys of the premises were taken by the plaintiff from defendant no. 2 after the receipt of the above said email. Defendant has claimed that plaintiff is not entitled to receive any amount towards rent after 14-12-2020 and also not entitled to receive any maintenance or other charges after the said date. Defendant has claimed that there was no business activity by the defendant during the Covid period and it was in loss throughout.
17.On merits, while admitting the landlord & tenant relationship between the parties, qua which the registered lease deed dated 29.01.2020 was executed, the defendant has given a general denial to the averments in the plaint and has also specifically denied that the amount of Rs. 2,20,000/- paid under the head of interest free security deposit was to be forfeited and further that an amount of Rs. 4166/- per day was to be paid by the defendant as damages to the plaintiff. Defendant has specifically denied its liability qua arrears of rental, electricity and maintenance charges or any amount as claimed by the plaintiff. The defendant has also denied service of any legal notice as claimed by the plaintiff in para 11 of the plaint. Defendant has prayed for dismissing the suit with special cost.
18.From the pleadings of the parties, following issues were framed on 12-09-2023:
1. Whether the plaintiff is entitled to arrears of rent and Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 10 maintenance charges of Rs. 39,92,916/- from the defendant as alleged? OPP
2. Relief.
19.To prove its case plaintiff examined four witnesses viz. Yogesh Kumar, partner of the plaintiff company as PW-1, Sarita, Senior Assistant, Registrar of Firms & Socieity, Office of District Magistrate (South East), Govt of NCT of Delhi (Revenue Department) Lajpat Nagar IV, New Delhi as PW-2, Jai Bhagwal, Property Manager, DLF Tower, Shivaji Mark Condominium Association as PW-3 and Sh Avinash Kaur, Operation Head, Kotak Mahindra Bank, Old Rajinder Nagar Branch as PW-4 and closed its evidence on 22-10-2024. On the other hand, defendant examined Kamal Kant Kothari, one of its Director as DW-1 and closed its evidence on 23-12-2024.
20.Vide his affidavit of evidence Ex. PW-1/A, PW-1 has deposed on the lines of plaint and exhibited the following documents:
1. Copy of GST Certificate of the plaintiff -Ex. PW-1/A
2. Original Resolution dated 16-03-2022 -Ex. PW-1/B
3. Copy of Registration Certificate of the Partnership Firm - Ex. PW-1/C (OS&R)
4. Printout copy of the Master Data / Record of the company from the website of MCA - Ex. PW-1/D
5. Copy of Lease Deed dated 29-01-2020 - Ex. PW-1/E (OS&R)
6. Office copy of Legal notice dated 21-01-2022 with original postal receipts - Ex. PW-1/F
7. Maintenance invoice of suit property - Ex. PW-1/G
8. Electricity Invoice of suit property - Ex. PW-1/H Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 11
9. Non Starter Report - Ex. PW-1/I
21.PW-1 was cross-examined on behalf of the defendant.
22.PW-2 Sarita, Senior Assistant, Registrar of Firms & Society, Office of District Magistrate (South East), Govt of NCT of Delhi (Revenue Department) Lajpat Nagar IV, New Delhi, was a summoned witness, who had brought the summoned record i.e. registration of the partnership firm M/s. SVM Networks Inc. and copy of the same was exhibited as Ex. PW-2/1 (Colly.) (running into 17 pages) (OS&R)
23.PW-3 Jai Bhagwan, Property Manager, DLF Tower, Shivaji Marg Condominium Association at 15 Shivaji Magar, Najafgarh Road, New Delhi-110015, was also a summoned witness, who had brought the summoned record qua maintenance & electricity charges of the property bearing no. DSM055, DLF Tower, Shivaji Marg, Moti Nagar, Delhi-110015 and exhibited the same as Ex. PW3/1 (colly) (running into 50 pages). He further proved two cheques and copy of intimation/authorization of raising of invoices of CAM in favour of Food Freshly AFCI Pvt. Ltd. (defendant herein) along with supporting documents as Mark A (Colly) (two cheques) and Mark B (colly) (running into 11 pages) respectively. Certificate u/s 65B of Indian Evidence Act qua the computerized documents was exhibited as Ex. PW3/2.
24.PW-4 Ms. Avinash Kaur, Operation Head. Kotak Mahindra Bank, Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 12 Old Rajinder Nagar Branch, Delhi-110060 was also a summoned witness, who has the summoned record i.e. statement of account bearing no. 4711174135 in the name of SVM Network Inc. (plaintiff herein) for the period from 01.10.2022 to 31.10.2022, which was exhibited as Ex. PW4/A (running into 02 pages).
25.Vide his affidavit of evidence Ex. DW-1/A, DW-1 Kamal Kant Kothari has deposed on the lines of the written statement and exhibited the following documents:
i) Certified copy of Board Resolution Ex. DW1/1
ii) Copy of statement of account of the defendant of HDFC Bank Ex. DW1/2 (running into 04 pages).
iii) Copy of statement of account of the defendant of IDFC First Bank Ex. DW1/3 (running into 11 pages)
iv) Copy of tax invoices - Ex. PW1/DX1 to Ex. PW1/DX8.
v) Printout of email dated 14.12.2020 Ex. DW1/5
vi) Certificate u/s 65B of Indian Evidence Act issued by me in respect of the computerized documents, is Ex. DW1/6.
vii) Summary of payment Ex. DW1/7
26.Pre-litigation mediation was held before West District Legal Services Authority but due to non settlement, non starter report dated 02-05-2022 was issued and the same is Ex.PW-1/I.
27.I have heard final arguments on behalf of the parties, perused their brief written submissions have also perused the judicial file.
28.My issue-wise findings are as under:
ISSUE No. 1"1. Whether the plaintiff is entitled to arrears of rent and Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 13 maintenance charges of Rs. 39,92,916/- from the defendant as alleged? OPP"
29.The onus to prove this issue was on the plaintiff.
30.PW-1 has deposed on the lines of plaint and has proved the copy of plaintiff's GST Certificate Ex. PW-1/A and copy of plaintiff's registration certificate Ex. PW-1/C (OS&R) wherein Yogesh Kumar and Tapender Bhadana have been mentioned as partners of plaintiff's firm M/s. SVM Networks INC. PW-1 has further proved the printout copy of the Master Data / Record of the company downloaded from the website of MCA Ex. PW-1/D, mentioning the names of Directors of defendant company M/s. Food Freshly AFC India Pvt Ltd. as (1) Benjamin Amit Singh (2) Kamal Kant Kothari and (3) Sukhdev Singh.
31.During his testimony, PW-1 has further proved the original resolution dated 16-03-2022 Ex. PW-1/B, executed in his favour by the plaintiff firm vide which he has been authorized to file a civil suit/ commercial civil suit, prosecute, appear, contest and do all other acts, deeds/things and to make statement on oath, to engage counsel, to sign and verify the pleadings, to swear the affidavit, to make compromise and all other acts which are necessary for legal proceedings of the case against the defendant and Kamal Kant Kothari for recovery of rent, damages, unpaid maintenance, unpaid electricity etc. in respect of suit property.
32.PW-1 has also proved the copy of the Lease Deed dated 29-01- Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 14 2020 Ex. PW-1/E (OS&R) executed between the parties, which was signed by Yogesh Kumar, being one of the partners of the plaintiff's firm and Kamal Kant Kothari, being one of the Directors of defendant no.1 company.
33.Clarifications were sought by this Court from the Ld Counsel for the plaintiff qua overlapping / mismatch of the period mentioned in clause 1 of the lease deed Ex.PW-1/E (OS&R) where apparently the period of rent payable appears to be overlapping to each other, to which Ld Counsel for the plaintiff had stated that the same is a typographical error. She has submitted that the period mentioned in the lease deed Ex.PW-1/E (OS & R), i.e, Period Rent 15.01.2020 to ₹74,000 + GST + Mainte-
14.11.2021 nance charges 15.01.2021 to ₹79,180 + GST + Mainte-
14.11.2022 nance charges 15.01.2022 to ₹84,723 + GST + Mainte-
14.01.2023 nance charges may be read as follows :
15.01.2020 to Rs. 74,000/- + GST + Maintenance Charges 14.01.2021 15.01.2021 to Rs. 79,180/- + GST + Maintenance Charges 14.01.2022 15.01.2022 to Rs. 84,723/- + GST + Maintenance Charges 14.01.2023 Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 15
34.In view of the fact that the defendant in its written statement has nowhere denied the execution of lease deed Ex. PW-1/E (OS&R) and contents of the plaint wherein the aforesaid corrected period of lease is mentioned and accordingly, the lease deed dated 29-01- 2020 Ex. PW-1/E (OS&R) stands proved on record and the period thereof shall be read correctly as mentioned in the plaint.
35.The principal controversy between the parties is as to when the possession of the suit property was handed over by the defendant to the plaintiff.
36.As per the case of the plaintiff the possession of the suit property was handed over to it by the defendant on 25-09-2022.
37.Per contra, the claim of the defendant is that it had handed over the possession of the suit property to the plaintiff on 15-12-2020 and cleared all the dues of the plaintiff and therefore defendant is not liable to pay any amount whatsoever to the plaintiff.
38.Defendant has claimed in its written statement and DW-1 has also deposed in his evidence affidavit that email dated 14-12-2020 Ex. DW-1/5, was sent by the defendant (Sukhdev Singh) to the plaintiff (Yogesh), which fact was admitted by the PW-1 in his cross-examination dated 28-05-2024.However, from the same, it can merely be inferred that the defendant wanted to terminate the tenancy and hand over the physical possession of the suit property Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 16 to the plaintiff but it cannot be inferred that the actual physical possession of the suit property was handed over to the plaintiff by the defendant on the said date.
39.Furthermore admittedly there is no written document qua the receiving of possession or acknowledgment of possession on behalf of the plaintiff or any corroborative evidence qua the said claim of the defendant.
40.Also, during the course of argument Ld Counsel for the plaintiff stated that one of the Directors of defendant Kamal Kothari had appeared before DSLSA during pre-litigation mediation on 21.04.2022 and had requested for some time but failed to mention that the possession was already handed over. The same indicates that even at that time, the possession of the suit property was with the defendants.
41.PW1 has further proved office copy of the legal notice dated 21-01-2022 with original postal receipts Ex. PW-1/F (colly.), which was initially denied by the defendant in his written statement and affidavit of admission and denial of documents filed by the plaintiff. However, DW-1 in his cross-examination dated 02-12-2024 has admitted having received the legal notice of demand dated 21-01-2022 and further that no reply was sent to the same by the defendant. Thus from the above, and the fact that the defendant had not replied to the aforesaid legal notice dated 21- 01-2022, part of Ex. PW-1/F(Colly) , wherein the plaintiff had Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 17 sought for possession of the suit property , adverse inference can be drawn against the defendant that defendant was in possession of the suit property at that time.
42. The plaintiff had moved an application dated 06-10-2022 before this court on 06-12-2022 informing the Court that the possession of the suit property was handed over to it by the defendant on 25- 09-2022.
43.Furthermore, PW-3, from the Shivaji Marg Condominium Association, has proved on record that the invoices, Ex.3/1 (Colly.) were raised in the name of Defendant No. 1 until September 2022, much beyond the period when the defendant claimed to have handed over the possession to the plaintiff, which suggests defendant's continued occupancy of the subject property till September,2022.
44.Additionally, it is an admitted case of the defendant that it had made a payment of Rs. 57,239/- on 02-01-2021 to the plaintiff via cheque no. 000010, which is duly reflected by the bank statement proved on record at running page no.39, Ex.DW-1/3 (Colly). Hence, it is beyond comprehension as to why the defendant would have made the said payment after purported vacation of the suit property by him on 15-12-2000 (as per claim of the defendant). This preposition further negates the claim of the defendant that the possession of the suit property was handed over by it to the plaintiff on 15-12-2020 and the said payment made by the Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 18 defendant post-alleged handover, indicates continued liability.
45.Accordingly, from the above discussion, defendant's claim of handing over possession of the suit property to the plaintiff on 15- 12-2020 cannot be believed and hence in such circumstances and also since no contrary evidence has been proved on record by the defendant, the date of handover of possession of the suit property by the defendant to the plaintiff shall be deemed to be on 25-09- 2022 as claimed by the plaintiff.
46.Defendant has claimed that it has spent an amount of Rs.20,000/-
on 17-12-2019, Rs. 1,00,000/- on 20-12-2019, Rs.98,000/- on 14- 01-2020 and Rs. 99,000/- on 21-01-2020 qua construction and interior works. In this regard, clause-3 (7) of the lease deed, Ex.PW1/E (OS&R) is import and is reproduced as under :
"(7) That the Lessee shall not make any structural changes, additions or alterations in the leased premises, without obtaining prior written permission from the Lessor. Any structural addition without obtaining prior written permission from the Lessor shall renter the present lease terminable by the Lessors"
47. In view of clause-3(7) of the lease deed, any structural changes or additions in the leased premises required the prior written permission of the lessor. The defendant has merely made a bald claim regarding the expenditure on construction and interior works but has failed to produce any written consent from the plaintiff permitting such works. Furthermore, the defendant has Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 19 not proved the bills etc. for the said construction and interior work. Therefore, no benefit or relief can be granted to the defendant with respect to this claim.
48.As regards the forfeiture of security amount paid by the defendant to the plaintiff, although as per clause 1 (2) of the registered lease deed Ex. PW-1/E, it was agreed between the parties that in case the rent is not paid by the defendant for two consecutive months, the security deposit of Rs. 2,20,000/- shall stand forfeited in favour of the plaintiff. However the said clause appears to be unfair and it can be inferred that the same was signed by the defendant in view of the superior position of the plaintiff as landlord. Hence, the amount of Rs. 2,20,000/- deposited as security by the defendant, needs to be first adjusted while calculating the total outstanding amount due against the defendant.
49.As regards maintenance and electricity Charges, the Plaintiff relies on invoices from the maintenance agency (Ex. PW3/1) and electricity bills, showing dues of Rs. 3,04,160/- (towards maintenance charges) as on September,2022 and Rs. 14,564/- (towards electricity charges) as on May, 2022. The Defendant has disputed these invoices, alleging fabrication, but except for baldly claiming so, defendant has not adduced any evidence to support this claim. The continued issuance of invoices in the Defendant's name, coupled with their failure to notify the maintenance agency Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 20 of vacating the premises, suggests its liability for these charges until September 2022 and is accordingly held.
50.During the course of arguments, learned counsel for the defendant drew my attention to the cross-examination of PW-3 dated 02.09.2024, wherein PW-3 admitted that there was no consumption of electricity in the property in question after December 2020. On this basis, it was contended that in the absence of electricity consumption, the raising of electricity bills is questionable. However, the said electricity charges appears to be the rental charges in view of the nominal amounts of bills raised and are not the actual electricity consumption charges.
51.Hence in view of the above discussion it is held that defendant is liable to pay Rs. 3,04,160/- towards maintenance charges and Rs. 14,564/- towards electricity charges to the plaintiff totaling to an amount of Rs.3,18,724/- .
52.The defendant has proved on record that it had paid total amount of Rs. 3,52,906/- in addition to the amount of Rs. 2,20,000/- deposited as security on different dates, which amounts are duly reflected in the statement account Ex. DW-1/3, which payments are also admitted by the plaintiff. Hence this amount also needs to be adjusted from the total outstanding amount.
53.Plaintiff has claimed total amount of Rs. 27,53,506/- qua arrears of rental (viz. from 15.03.2020 to 14.01.2021 @ Rs. 74,000/- per month, from 15.01.2021 to 14.01.2022 @ Rs. 79,180/- p.m. and Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 21 from 15.01.2022 to 14.09.2022 @ Rs. 84,723/- p.m. alongwith GST @18% p.a.).
54.However, PW-1 in his cross-examination dated 19-03-2024 had admitted that the rental was reduced to half for certain period due to covid outbreak, which portion of his cross-examination is relevant and reproduced as under:-
"Q. Did you ever reduce the rental of the subject property leased to the defendant?
Ans. Since after the two monthly rental cheques of the defendant got bounced, the defendant had requested me to reduce the rental to half for six months from about 15-04-2020 to 14 th October / November, 2020, due to his financial difficulty, which was agreed to by me on the ground that thereafter after expiry of six month rental period, rental will be the same as originally agreed between the parties.
It is wrong to suggest that it was not agreed between the parties that after aforesaid six months period, the rental was to be the same as was originally agreed between the parties."
55.Accordingly in view of the above and also in view that the defendant has proved on record invoices issued by the plaintiff for the period between 15-04-2020 to 14-10-2020 at the reduced rate which is also admitted by the PW-1 during his cross examination dated 29-04-2024 which are Ex.PW-1/DX3 to PW-1/DX-8, it is proved that the plaintiff had agreed to reduce the rent to half for six months w.e.f. 15-04-2020 to 14-10-2020, due to defendant's financial difficulty and now the plaintiff cannot be allowed to Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 22 resile from the same and accordingly, the rent for the said period w.e.f. 15-04-2020 to 14-10-2020 shall be calculated @ 37,000/- per month + G.S.T .
56.Plaintiff has claimed damages to the tune of Rs. 9,20,686/- w.e.f.
06.02.2022 till the date of filing of the suit (14.09.2022) i.e. @ Rs. 1,25,000/- p.m. (i.e.@ Rs. 4,166/- per day) for 221 days. However, as per clause 3 (12) of the lease deed Ex. PW-1/E (OS&R) the damages agreed between the parties were Rs. 3000/- per day in addition to the agreed monthly rent.
57.In this context, reliance is placed upon a judgment of the Hon'ble High Court of Delhi in M/s. Kusum Enterprises & Ors Vs Vimal Kochhar & Anr (2013 SCC Online Del 5127), para 13 of which is reproduced as under:
"The Division Bench of this Court in National Radio and Electronic Company Ltd. V. Motion Pictures Association 122 (2005) DLT 629 has held that in the absence of proof of rate of mesne profits, mesne profits at a rate higher than the rate of rent by taking judicial notice of increase in rent cannot be given".
58.Accordingly, in view of the above and also in view of the aforesaid judgment, I hold that the plaintiff is entitled to mesne profit / damages at the agreed rate of monthly rentals from 06-02- 2022 till the date of handing over of possession i.e. 25-09-2022 and not beyond that.
59.Thus, the defendant is liable to make the following payments to Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 23 the plaintiff :-
Calculation Table Monthly Base Rent GST @18% Period Months Total (₹) Rent (₹) (₹) (₹) 15-01-2020 to 74,000 3 2,22,000 39,960 2,61, 14-04-2020 15-04-2020 to 14-10-202060 37,000 6 2,22,000 39,960 2,61,960 15-10-2021 to 79,180 3 2,37,540 42,757.20 2,80,297.20 14-01-2022 22 to 24-
15-01-2 09-2022 8.33 7,05,762.59 1,27,037.27 8,32,799.86 84,723 Total Rent 16,37,017.06 Outstanding
- Maintenance 3,04,160 Charges
- Electricity 14,564 Charges Gross Outstanding ₹19,55,741.06 Amount Less: Payments Made irect Payment
-3,52,906 s SecurityDeposit -2,20,000 Net Amount ₹13,82,835.06 Payable RELIEF Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 24
60.Accordingly, in view of the discussion above and my findings on issue no. 1, wherein I had held that the possession of the suit property was handed over to the plaintiff by the defendant on 25-09-2022, the plaintiff is held entitled to arrears of rental and mesne profit/damages at the rate of agreed rental alongwith electricity and maintenance charges totaling to Rs. 13,82,835.06.
61. Plaintiff has also claimed interest @ 12% per annum on the said outstanding amount. Considering the totality of facts and circumstances, I am of the considered opinion that the interest claimed by the plaintiff appears to be excessive and is not justifiable and hence prayer to grant the said interest rate is declined.
62.In the case of Cimmco Limited Versus Pramod Krishna Agrawal, 2019 SCC OnLine Del 7289, of Hon'ble High Court of Delhi, it has been held as follows;
"3........... Hon'ble Supreme Court has now mandated that lower rates of interest be granted and therefore the pre-suit and also the pendente lite and future interest is liable to be reduced by this Court. Reliance is placed upon the judgments in the cases of Rajendra Construction Co. v. Maharashtra Housing & Area Development Authority, (2005) 6 SCC 678, McDermott International Inc.v Burn Standard Co. Ltd., (2006) 11 SCC 181,Rajasthan State Road Transport Corporation v. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd v. G. Harischandra, (2007) 2 SCC 720 & State of Rajasthan v. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC)."Civ DJ No. 737/2022 SVM Networks Inc. Vs M/s. Food Freshly AFC India Pvt Ltd. Page No. 25
63.In the given facts and circumstances, in view of the aforesaid judgment and keeping in view the prevalent rate of interest, the plaintiff is entitled to simple interest @ 9% per annum on the outstanding amount of Rs. 13,82,835.06 from date of filing of suit i.e, 12-09-2022 till realization along with the costs of the suit.
Decree sheet be drawn accordingly.
File be consigned to record room. Digitally signed
by ASHUTOSH
ASHUTOSH KUMAR
KUMAR Date:
2025.07.31
16:39:50 +0530
Announced in open (Ashutosh Kumar)
Court on 31-07-2025 District Judge (Commercial Court)-01
West, Tis Hazari Courts, Delhi
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