Delhi District Court
Salwan Education Trust Through Its ... vs M/S Book Care Centre Through Proprietor ... on 20 December, 2025
IN THE COURT OF SANJEEV KUMAR MALHOTRA
DISTRICT JUDGE (COMMERCIAL COURT)-08
CENTRAL: TIS HAZARI COURTS: DELHI
CS (COMM) 1229/2023
CNR No.DLCT01-012678-2023
Salwan Education Trust
Through its secretary
Mr. Paramjit Khanna
Salwan Schools Complex
PT. Girdhari Lal, Salwan Marg,
Rajendra Nagar, New Delhi-110060. ....Plaintiff
Vs
M/s Book Care Centre
Through proprietor,
Mr. Vipin Sharma
1st Floor, 162, Pocket-25,
Sector-24, Rohini, West Delhi-110085.
Office at:-
B-139, Vyapar Kendra, Sushant Lok-I,
Gurugram, Haryana. .....Defendant
Date of Institution : 11.09.2023
Date of Arguments : 20.11.2025
Date of Judgment : 20.12.2025
JUDGMENT
1. This is a commercial suit for mandatory injunction and recovery of Rs.1,74,62,500/- (Rupees One Crore Seventy Four Lac Sixty Two Thousand and Five Hundred Only) as on 31.01.2023 besides GST alongwith pendente lite and future interest, as filed by the plaintiff against the defendant.
CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 1 of 312. In brief, facts of the case as made out in the plaint are that the plaintiff is a charitable society registered under the Societies Registration Act, 1860 and has established and running recognized schools i.e. Salwan Public School, Rajendra Nagar, New Delhi and G. D. Salwan Public School, Rajendra Nagar, Delhi. It is averred that w.e.f. 01.04.2023 G.D. Salwan Public School has been merged with Salwan Public School, Rajendra Nagar, New Delhi. The plaintiff is running 8 schools in the Delhi NCR catering to about 12000 students. The defendant is proprietorship concern and Mr. Vipin Sharma is the sole proprietor of defendant.
3. It is case of the plaintiff that in the month of February, 2019, the plaintiff floated a tender to provide/sale of books and stationery items to the students of schools run by the plaintiff from the premises/outlet provided in school premises, purely on license basis. The defendant submitted a bid/offer to plaintiff and expressed his willingness to provide/sale of books and stationery items to the students of school by giving financial bid towards the license fee of Rs.31,50,000/- plus GST applicable for the academic year 2019-2020, which was accepted by the plaintiff and they also entered into a License Agreement dated 22.02.2019 for a period of one year from 01.03.2019 till 28.02.2020 at an annual license fee of Rs.31,50,000/-. It was agreed in the agreement dated 22.02.2019 that the defendant was required to pay 50 % of the license amount i.e. Rs.15,75,000/- plus GST by cheque at the time of signing CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 2 of 31 the agreement and the remaining 50 % plus GST was payable on 01st June, 2019 by way of a post dated cheque at the time of signing of agreement. It was also agreed that in case of default in payment of installment by stipulated date, a penalty of Rs.5000/- per day shall be charged upto 30 days and in the event of default in payment continuing beyond 30 days, the license shall be terminated on expiry of grace period of 30 days.
4. It is further case of the plaintiff that in terms of the agreement dated 22.02.2019, the defendant was provided premises/outlet space/room admeasuring 5.73 mtrs. x 3.45 mtrs. (19ft x 11 ft) in the premises of Salwan Public School, Rajendra Nagar on license basis only for the purpose of selling text books, other publications and articles of stationery etc. to the students. The access of the defendant to the aforesaid premises was permitted between 9 am to 3 pm and neither the defendant nor any of the employees were permitted to stay in the premises at night. It was clearly understood and agreed that the defendant neither be treated as a tenant nor shall have any right to transfer, assign, part with or share with any person any right under the said agreement. It is stated that the defendant and the employees would have only right to use the space for distributing the books & stationery items meant for the students of Salwan School only on license basis.
5. It is further case of the plaintiff that at the time of signing of agreement, the defendant had issued a post dated cheque bearing no.000714 dated 01.06.2019 for an amount CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 3 of 31 of Rs.18,58,500/- in lieu of remaining 50 % license fee plus GST for the period of 01.03.2019 till 28.02.2020 and on the instructions of defendant, plaintiff presented the said cheque for encashment with his banker i.e. Andhra Bank, Old Rajendra Nagar on 01.06.2019, but the same was dishonoured with remarks "Insufficient Funds".
6. It is averred that despite several requests of the plaintiff, no payment has been made by the defendant towards the said amount to the plaintiff. It is stated that the license agreement dated 22.02.2019 has expired on 01.03.2020 and the defendant had to remove the lock and belongings from the said premises/outlet within 30 days of default i.e. 01.06.2019, but despite repeated requests and demands, the defendant has failed to remove the lock and belongings from the said premises/outlet. Thereafter, plaintiff sent a legal notice dated 28.01.2023 to the defendant calling upon to remove the lock and their belongings from the said premises/outlet and to pay the arrears of license fee and penalty/damages amounting to Rs.1,74,62,500/- besides interest @ 24 % per annum and applicable GST within a week of receipt of notice and in response thereof, the defendant sent a false and frivolous reply dated 18.02.2023.
7. Plaintiff also filed an application for pre-litigation mediation before the DLSA, Central on 15.03.2023 and a Non-Starter Report was issued on 28.04.2023 which was received by the plaintiff on 15.05.2023. It is stated that the defendant is liable to pay the arrears of license fee and CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 4 of 31 penalty/damages amounting to Rs.1,74,62,500/-, details of which are as under :-
Sr. Particular Amount in
No. (Rs.)
1 Arrears of license fee for the period 15,75,000/-
01.03.2019 till 28.02.2020 exclusive of GST.
2 Arrears of license fee/unauthorized user 31,50,000/-
charge for the period 01.03.2020 till 28.02.2021 exclusive of GST 3 Arrears of license fee/unauthorized user 31,50,000/-
charge for the period 01.03.2021 till 28.02.2022 exclusive of GST 4 Arrears of license fee/unauthorized user 28,87,500/-
charge for the period 01.03.2022 till 30.06.2023 exclusive of GST 5 Penalty for the period 01.06.2019 till 67,00,000/-
31.01.2023 @ 5,000/- per day for 1340 days in terms of clause 10(C) of the License Agreement dated 22.02.2019 Total 1,74,62,500/-
8. Defendant contested the present suit by filing detailed written statement while taking preliminary objections that plaintiff has approached the court with unclean hands and has suppressed material facts; that the suit has been filed by the plaintiff after a lapse of more than four years from the date of alleged cause of action i.e. 01.06.2019 date of cheque returning memo; that in view of order dated 10.01.2022 passed by Hon'ble Apex Court in Re : Cognizance for extension of Limitation, Writ Petition (Civil) No.3 of 2020, the limitation of present suit has already been expired on 15.11.2022; that the License CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 5 of 31 Agreement dated 22.02.2019 is false and frivolous document.
9. It is submitted that it was agreed that the defendant will provide books and stationery items to the students of Salwan Public School, Rajendra Nagar, GD Salwan School, Salwan Junior School, Naraina Vihar, New Delhi by printing the logo of the trust and school run by the plaintiff on Notebooks and other stationery items for exclusively provided in the school premise to the students of the schools only for the period of one year i.e. from 01 st March, 2019 to 28th February, 2020. It is further submitted that as a license fee for the premises/outlet/shop, defendant had to pay total amount of Rs.31,50,000/- alongwith GST in two installments, out of which, first installment was paid in initial days and for second installment, defendant had given a cheque as security and it was agreed that the plaintiff will get the cheque encashed only after seeking approval from the defendant so that the defendant get time to maintain sufficient funds in their account in the month of December, 2019.
10. It is submitted that when the summer break commenced in the month of May, 2019 at the school, sales almost came to halt and in the second week of May, 2019, the defendant and his representatives were abruptly stopped from entering into the school premises, due to which, they were unable to open the outlet/stationery shop for conducting their business activity of selling books and stationery. It is stated that in the same week of May, 2019, CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 6 of 31 defendant received an email dated 15.05.2019 from the plaintiff on their official mail ID stating about the agreement dated 22.02.2019, which they claimed to have been executed between the plaintiff and defendant and also mentioned falsely that the defendant had promised to make payment of second installment in the first week of April, 2019 and also making false claims that they were getting complaints against the representative of the defendant. Further, the defendant many times tried to contact the plaintiff over telephone but their staff did not allow any communication and the defendant and his representative were also not allowed to enter in the premises to discuss the issue. It is stated that the plaintiff in order to extract money from the defendant, got the cheque by putting a date on it and dishonoured it without informing the defendant and also initiated criminal proceedings under Section 138 NI Act against it. The defendant since the very beginning of arising problems, wanted to remove their material from the premises of the plaintiff but the plaintiff did not allow the defendant to do so and for the said purpose, a legal notice dated 27.02.2020 was also served upon the plaintiff, but no response to the same was received.
11. On merits, the contents of plaint have been denied as wrong. It is submitted that no agreement dated 22.02.2019 was ever executed between the parties. It is further submitted that the whole stock of the defendant amounting to Rs.15,00,000/- has been destroyed and become scrap but the plaintiff has been conveniently floating new tenders and operating their stationery shop effortlessly. It is thus CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 7 of 31 submitted that suit of plaintiff may be dismissed with exemplary costs.
12. Replication to the written statement of defendant was filed on behalf of plaintiff, wherein plaintiff denied the facts as mentioned in written statement while re-affirming the averments as pleaded in the plaint.
13. From the pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 03.06.2024:-
1. Whether the suit of plaintiff is barred by limitation ? (OPD)
2. Whether the agreement relied upon by plaintiff is genuine ? (OPP)
3. Whether the plaintiff is entitled for relief of mandatory injunction in respect of outlet/premises admeasuring 5.73 mtrs. X 3.54 mtrs. located in Salwan Public School, Rajendra Nagar, New Delhi-110060, as shown in red colour in Site Plan attached with the plaint, as prayed for ? (OPP)
4. Whether the plaintiff is entitled for recovery of Rs.1,74,62,500/-, as prayed for ? (OPP)
5. Whether plaintiff is entitled for interest on Rs.1,74,62,500/-. If so, at what rate and for which period ? (OPP)
6. Whether the plaintiff is entitled to damages from 01.02.2023 with respect to suit property. If so, at what rate and for which period ? (OPP)
7. Relief.CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 8 of 31
14. In order to expedite the disposal of case, Ld. Predecessor vide order dated 03.01.2025 appointed Sh.
Vinay Kumar Gupta, Retd. District and Sessions Judge as Local Commissioner to record the evidence of parties.
15. In support of its case, plaintiff examined Mr. Paramjit Khanna, Secretary of Salwan Education Trust as PW-1, who tendered his examination in chief by way of affidavit as Ex.PW1/A. PW-1 has relied upon following documents:-
1. Copy of Resolution dated 23.09.2007 passed in his favour i.e. Ex.PW1/1.
2. Copy of License Agreement dated 22.02.2019 i.e. Ex.PW1/2.
3. Copy of Site plan i.e. Ex.P-1.
4. Copy of complaint u/s 138 of NI Act i.e. Ex.D-2.
5. Legal Demand Notice dated 28.01.2023 alongwith postal receipt, tracking report, courier report, proof of delivery and email dated 28.01.2023 i.e. Ex.PW1/3 (colly).
6. Reply dated 18.02.2023 i.e. Ex.P-2.
7. Mediation proceedings dated 01.02.2023 i.e. Ex.P-3.
8. Non-Starter Report dated 15.05.2023 i.e. Ex.PW1/5.
9. Two photographs along with certificate u/s 65 B dated 25.08.2023 i.e. Ex.PW1/6.
16. Plaintiff also examined Sh. Pipin Kumar, Ahlmad from the court of Sh. Abhay Choudhary, Ld. JMFC NI CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 9 of 31 Act-04, Central as PW-2, who proved the copy of cheque no.000714 dated 01.06.2019 for Rs.18,58,500/- drawn on HDFC Bank, Gurgaon as Ex.D-5, original cheque returning memo dated 01.06.2019 bearing no.29112 as Ex.D-6 and four original postal receipts dated 28.06.2019 as Ex.D-7.
17. Plaintiff also examined Smt. Durgesh Nadini as PW-3, who proved the entries at serial no.6831, 6832 and 6833 dated 21.05.2019 regarding notarization of documents relating to Salwan Education Trust and Book Care Centre, proprietor Mr. Vipin Sharma as Ex.PW3/1, photocopy of document notarized by her and entered at serial no.6832 as Ex.PW3/2. She deposed that the document Ex.PW2/D-1 (i.e. copy of license agreement Ex.PW1/2, which was brought by PW-2 Sh. Pipin Kumar, Ahlmad, who produced the summoned record i.e. court case file pertaining to complaint case no.8776/2019 titled as Salwan Education Trust vs. Book Care Centre and Anr.) had been notarized by her and it bears the original stamp as well as her signature on each page.
18. Plaintiff also examined Sh. Gurdev Singh, Estate In-
Charge of Salwan Education Trust as PW-4, Sh. Ashok Sharma as PW-5 and Sh. Sunil Mangal, Assistant Manager, Union Bank of India as PW-6. PW-6 has relied upon the following documents:-
1. Authorization letter dated 04.02.2025 i.e. Ex.PW6/A.
2. Statement of account of M/s Salwan Education Trust for the period from 01.05.2019 to 15.06.2019 i.e. Ex.PW6/B. CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 10 of 31
3. Certificates u/s 2A (a) and 2A (b) of the Bankers' Books Evidence Act, both dated 04.02.2025 i.e. Ex.PW6/C and Ex.PW6/D.
4. Cheque Return Memo dated 01.06.2019 i.e. Ex.D-6.
19. Defendant in its defence, examined Sh. Vipin Sharma, Proprietor of Book Care Centre as DW-1, who tendered his examination in chief by way of affidavit as Ex.DW1/A. DW-1 has relied upon following documents:-
1. Email dated 15.05.2019 sent by the plaintiff to him i.e. Ex.D-1.
2. Copy of complaint case filed by the plaintiff against him i.e. Ex.D-2.
3. Legal notice dated 27.02.2020 along with postal receipt i.e. Ex.PW1/D-1.
4. RTI with proof of service of Legal Notice dated 27.02.2020 i.e. Ex.DW1/5.
5. Tender floated issued by the plaintiff for the years 2020 to 2023 i.e. Ex.D-3.
6. Certificate under Section 63 (4) of BSA, 2023 in respect of email Ex.DW1/1 and tender Ex.D-3 i.e. Ex.DW1/B.
20. Arguments have been advanced by Mr. Irfan Ahmed, Ld. Counsel for plaintiff and by Ms. Harshita Aggarwal and Mr. Ritesh Kumar, Ld. Counsels for defendant. I have CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 11 of 31 given my thoughtful consideration to the rival submissions made by the parties and also gone through the record as well as written submissions, filed on behalf of both parties.
21. Ld. Counsel for defendant has relied upon the authorities reported as:
1. J. Yashoda vs. K. Shobha Rani, (2007) 5 SCC 730;
2. Balraje @ Trimbak vs. State of Maharastra, (2010) 6 SCC 673;
3. Sudershan Kumar Bhayana (Deceased), Thr. LRs vs. Vinod Seth (Deceased), Thr. LRs., 2023:DHC:7053-DB.
22. My issue wise findings are as under:-
Issue no.1:-
1. Whether the suit of plaintiff is barred by limitation ? (OPD)
23. Onus to prove this issue was upon the defendant. The defendant in his written statement has taken an objection that suit of the plaintiff is hopelessly barred by limitation on the plea that as per claim of the plaintiff, cheque dated 01.06.2019 was dishonoured on 19.06.2019, however, the plaintiff has claimed the amount of cheque in the present suit after a period of more than four years from the alleged cause of action. It is claimed that even the directions passed by Hon'ble Apex Court in Re: Cognizance for Extension of Limitation, Writ Petition (Civil) No.3 of 2020 are not helpful to the plaintiff for the extension of limitation.
CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 12 of 3124. The plaintiff in the present suit has prayed for following reliefs:-
(i) A decree of mandatory injunction directing the defendant to immediately remove the lock and their belongings from the outlet/premises admeasuring 5.73 mtrs. x 3.45 mtrs. as specifically shown in red colour in the site plan located in Salwan Public School, Rajinder Nagar, New Delhi-110060;
(ii) A decree for recovery of the amount of Rs.1,74,62,500/- due till 31.01.2023 besides GST towards outstanding dues/penalty/damages along with pendente lite and future interest @ 24 % per annum from the date of filing the present suit till realization in favour of the plaintiff and against the defendant for not removing the lock and their belongings from the premises/outlet located in Salwan Public School despite the tenure of license deed having expired on 01.03.2020;
(iii) A decree to continue to pay damages at the contractual rate from 01.02.2023 till the date the defendant removes the lock and their belonging from the said premises/outlet;
25. As per averments made in para no.18 of the plaint, the cause of action to file the present suit arose on 01.06.2019 when the cheque for remaining license fee become due and same was returned dishonoured with the remarks "Insufficient funds" and it further arose on the expiry of the tenure of the license agreement i.e. on CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 13 of 31 01.03.2020. It is averred that cause of action is a continuing one till the defendant removes the lock and their belonging from the outlet/premise and pay the outstanding amount i.e. arrears of license fee as well as penalty/damages for illegally not removing the lock and their belongings from the suit premises/outlet. Thus, as far as the claim of plaintiff regarding relief of mandatory injunction and for payment of unauthorized user charges, the cause of action is continuing one and therefore, same is not barred by the limitation.
26. Now the question comes to decide whether the claim of plaintiff regarding remaining license fees of Rs.15,75,000/- is within limitation or not. In this regard, as per affidavit of evidence of PW-1 i.e. Ex.PW1/A, the suit shop/outlet was given to the defendant on license for a period of one year from 01.03.2019 till 28.02.2020 at an annual license fee of Rs.31,50,000/- and as per terms and conditions of the license agreement Ex.PW1/2, the defendant was required to pay 50% of the license fee i.e. Rs.15,75,000/- plus applicable GST at the time of signing of license agreement and for remaining 50 % of the license fee plus GST, the defendant had issued a cheque no.00714 dated 01.06.2019 for Rs.18,58,500/-, which was dishonoured with the remarks "Insufficient Funds" vide cheque returning memo dated 01.06.2019.
27. PW6 Sh. Sunil Mangal, Asst. Manager, Union Bank of India deposed that as per statement of account Ex.PW6/B, a cheque no.714 of HDFC Bank for Rs.18,58,500/- was returned unpaid for the reason "Funds CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 14 of 31 Insufficient" on 03.06.2019. The cheque return memo dated 01.06.2019 is proved as Ex.D6.
28. Plaintiff has claimed arrears of license fee amounting to Rs.15,75,000/- for the period 01.03.2019 till 28.02.2020 exclusive of GST and after the aforesaid period of license, the claim of plaintiff with regard to the suit shop/outlet from the defendant is for unauthorized user charge for not removing the lock and belonging from the outlet/suit shop. As per Non-Starter Report Ex.PW1/5, the plaintiff filed an application for pre-institution mediation on 15.03.2023 and Non-Starter Report was issued on 15.05.2023. Therefore, as per Section 12A of the Commercial Courts Act, 2015, the period of two months i.e. from 15.03.2023 to 15.05.2023, for which plaintiff remained occupied in pre-instution mediation, shall not be computed for the purpose of limitation.
29. It is also relevant to note here that Hon'ble Supreme Court in Delhi Development Authority vs. Tej Pal & Ors., 2024 INSC 456 held as under and I quote:
"45. Sagufa Ahmed (supra) construed that the orders passed In Re: Cognizance for Extension of Limitation (supra) were intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. We respectfully agree with the view taken in Sagufa Ahmed (supra). Consequently, the benefit of In Re: Cognizance for Extension of Limitation (supra) can be availed by CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 15 of 31 the appellants only in a case where the period of limitation expired between 15.03.2020 and 28.02.2022."
30. The period of limitation for remaining arrears of 50% of license fee starts from the date when as per plaintiff, the period of license Ex.PW1/2 came to an end. The period of license of the suit shop/outlet as per plaintiff is from 01.03.2019 till 28.02.2020, therefore, the limitation period for claiming the amount of remaining arrears of license fee is 3 years i.e. from 28.02.2020 till 28.02.2023. The plaintiff has filed the present suit on 11.09.2023. In view of the judgment of Hon'ble Supreme Court in Delhi Development Authority vs. Tej Pal and Ors. (supra), plaintiff is not entitled for benefit of any period to extend the limitation for Covid-19 as the limitation period of the claim of the plaintiff regarding remaining arrears of license fee did not come to an end between the period i.e. from 15.03.2020 to 28.02.2022. Therefore, it is held that claim of the plaintiff regarding arrears of license fee of the suit shop/outlet for the period 01.03.2019 till 28.02.2020 i.e. Rs.15,75,000/- exclusive of GST is barred by limitation. Accordingly, this issue is partly decided in favour of the defendant.
Issue no.2:-
Whether the agreement relied upon by plaintiff is genuine ? (OPP)
31. Onus to prove this issue was upon the plaintiff. PW-1 in his affidavit of evidence Ex.PW1/A deposed that in the month of February, 2019, the plaintiff had floated a tender CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 16 of 31 to provide/sale of books and stationery items to the students of schools run by plaintiff in Rajendra Nagar Campus, New Delhi from the premises/outlet provided in the school premises purely on license basis and the defendant submitted a bid towards the license fee of Rs.31,50,000/-
plus applicable GST for academic year 2019-20 and same was accepted by the plaintiff, pursuant to which, the parties entered into a License Agreement dated 22.02.2019.
32. PW-1 has relied upon the copy of License Agreement dated 22.02.2019 as Ex.PW1/2 while deposing that the original thereof was produced by the plaintiff in a cheque bounce case, but thereafter, the said License Agreement is not traceable despite best efforts made by the plaintiff. The defendant in his affidavit of admission-denial of plaintiff's documents has denied the license agreement by claiming it a false and fabricated document.
33. It is a matter of record that the plaintiff filed an application under Section 60 of BSA, 2023 seeking permission to lead secondary evidence with respect to license agreement dated 22.02.2019 and Ld. Predecessor vide order dated 04.12.2024 directed that let the agreement be produced and proved by the plaintiff as per law with liberty to the defendant to rebut the contentions.
34. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. In order to enable a party to produce secondary evidence, it is necessary for the parties to prove existence and execution of the original document. PW-1 Sh. Paramjit Khanna has admitted in his CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 17 of 31 cross examination that he was not present at the time of execution of license deed Ex.PW1/2 and therefore, he cannot be considered as a witness to the execution of license deed.
35. PW-3 Smt. Durgesh Nandini, Notary Public, PW-4 Sh. Gurdev Singh and PW-5 Sh. Ashok Sharma are the witnesses who deposed that the license agreement Ex.PW1/2 was executed/notarized in their presence. PW-4 Sh. Gurdev Singh deposed that he was employed with M/s Salwan Education Trust as Estate In-charge upto June, 2023 and for allotting any space to anyone like canteen, book shop, tailor shop etc., agreement is executed at the trust level for such allotments and all such agreements have been signed by him as a witness as Estate In-charge during his service tenure of about 34 years in the trust and that license agreement Ex.PW1/2 bears his signature at point A. In his cross examination, PW-4 confirmed that he, Sh. Ashok Sharma, Sh. Rajesh Suri (Director Estate) and Sh. Vipin Sharma i.e. defendant herein were present at the time of execution of License Agreement.
36. PW-5 Sh. Ashok Sharma has also deposed that Ex.PW1/2 is a copy of the license agreement, which was signed by him and bears his signature at point B and that the defendant Sh. Vipin Sharma had also signed the agreement on each page and identified his signature at point C on the copy of license agreement Ex.PW1/2. PW-5 was cross examined by Ld. Counsel for defendant but even a suggestion was not given that the license agreement, copy CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 18 of 31 of which is Ex.PW1/2 is not bearing the signature of defendant at point C or that the defendant had not signed on the original of said license agreement in his presence.
37. PW-3 Smt. Durgesh Nandini, Notary Public brought the Notary Register from serial no.5021 dated 27.02.2019 till serial no.11717 dated 06.11.2019 and deposed that there are entries in the register regarding notarization of document relating to Salwan Education Trust and Book Care Centre, Proprietor Mr. Vipin Sharma and proved the entries in the Notary Register as Ex.PW3/1. PW-3 specifically deposed that before notarizing the copy of any document, she used to see the original of same to verify.
38. It is interesting to note that though the defendant has denied the execution of license agreement Ex.PW1/2 but the defendant has relied upon a legal notice dated 27.02.2020 i.e. Ex.DW1/4, which was got issued by the defendant through his counsel Sh. Arvinder Singh Chauhan, wherein it is mentioned in para no.7 that the plaintiff after entering into the license agreement has violated the terms and conditions, which fact itself shows that the defendant admits execution of the license agreement. No other license agreement or copy thereof is produced by the defendant for which he has stated in his legal notice Ex.DW1/4 that plaintiff has violated the terms and conditions. Moreover, the defendant in para no.10 of its written statement has stated that in fact plaintiff had presented the original agreement before the Hon'ble MM however, once the true facts started surfacing, the plaintiff claimed to have lost the CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 19 of 31 said agreement, which fact also corroborate that a license agreement was executed between the parties. PW-3 Smt. Durgesh Nandini, PW-4 Sh. Gurdev Singh and PW-5 Sh. Ashok Sharma have proved that Ex.PW1/2 is the copy of license agreement executed between the parties by identifying their signatures as well as of defendant on it at the time execution. In view thereof, it is held that copy of license agreement Ex.PW1/2 as relied upon by the plaintiff is proved by way of secondary evidence as a copy of genuine document. Accordingly, this issue is decided in favour of the plaintiff.
Issue no.3:-
3. Whether the plaintiff is entitled for relief of mandatory injunction in respect of outlet/premises admeasuring 5.73 mtrs. X 3.54 mtrs. located in Salwan Public School, Rajendra Nagar, New Delhi-110060, as shown in red colour in Site Plan attached with the plaint, as prayed for ? (OPP)
39. Onus to prove this issue was upon the plaintiff. Ld. Counsel for plaintiff argued that the suit shop/outlet was given to defendant on license for a period of one year i.e. from 01.03.2019 to 28.02.2020 and till date, the defendant has not removed his lock and belongings from the suit shop/outlet despite repeated requests and demands. It is submitted that even otherwise the defendant was liable to remove his lock and belongings from the suit shop/outlet within 30 days from the date of default in making payment of remaining license fee or on the expiry of the license CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 20 of 31 term. Ld. Counsel for plaintiff vehemently contended that the defendant never offered to vacate the suit shop/outlet or to return the keys of the suit shop/outlet to the plaintiff.
40. Per contra, Ld. Counsel for defendant argued that the defendant and his representatives were stopped from entering into the suit premises from the second week of May, 2019 and therefore, he was not able to open the outlet for conducting his business activities. Ld. Counsel for defendant vehemently contended that keys of the suit shop/outlet used to be with the security staff of plaintiff school and the defendant used to collect the keys from security staff to open the shop/outlet and used to hand over the same to the security staff after closing the shop. Ld. Counsel for defendant further argued that as per oral agreement, the plaintiff was supposed to allot three shops/outlet to the defendant i.e. one shop each in all three schools, out of which, two were situated in Naraina Vihar and one at Rajendra Nagar, but same were not allotted to the defendant.
41. It is admitted case of the plaintiff that the access of the defendant to the suit shop/outlet was permitted between 09 am to 03 pm and that the ingress and egress of the defendant and his employees to the suit shop/outlet situated in the school of plaintiff was permissible only within the stipulated timing as it was to be used for sale of books and stationery to the students of school. DW-1 in his affidavit of evidence has deposed that his entry was stopped into the school premises for conducting his business in the outlet/stationery shop from the second week of May, 2019 CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 21 of 31 and that since the very beginning of arising of problems between the parties, he wanted to remove his material from the suit shop but plaintiff did not allow him to do so, for which a legal notice dated 27.02.2020 i.e. Ex.DW1/4 was also served upon the plaintiff. Though the plaintiff has disputed the receiving of legal notice Ex.DW1/4, but a bare perusal of same shows that the defendant had not offered that he wanted to remove his material from the suit shop/outlet. Ex.D1 is an email written by the plaintiff to the defendant whereby the defendant was asked to come to the office to resolve all the issues and to give bank guarantee or pay the second installment. DW-1 has admitted in his cross examination that he had not responded to the email dated 15.05.2019 i.e. Ex.D1. No explanation has come on record that if the entry of defendant was stopped by the plaintiff in school premises, why he had not written any letter, email or complaint to the school or any other authority or why even after receiving the email Ex.D1 dated 15.05.2019, he did not go to the office of school to resolve the issue, if any as requested by the plaintiff through the said email Ex.D1.
42. It is a settled law that no evidence can be led by the parties beyond their pleadings. Hon'ble Supreme Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) By LRs & Ors, AIR 2008 SC 2033 held that "No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled". In an another case titled as Biraji @ Brijraji & Anr. Vs. Surya Pratap & Ors., Civil Appeal Nos.4883-4884 of 2017, Hon'ble Apex Court held that "It is fairly well CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 22 of 31 settled that in absence of pleading, any amount of evidence will not help the party". In written statement, the defendant has not taken a plea that the plaintiff was supposed to allot three shops/outlets i.e. one shop each in all three schools to the defendant or that the keys of the suit shop used to be with the security staff of plaintiff school or that the defendant used to collect the keys of the suit shop from security staff or used to hand over the same to the security staff after closing the suit shop. Even otherwise, there is no admission of PW-1 that the keys of the suit shop used to be with the security staff of the plaintiff school. Further, no prudent person would keep the key of an outlet/shop with him in which goods of other party is stored to avoid any allegation of miss-appropriation of goods. Therefore, I do not find any force in the contention of Ld. Counsel for defendant that there was no occasion for the defendant to vacate the suit shop/outlet or remove his belongings as the keys of same were with the security staff of the plaintiff school.
43. Defendant has no legal right over the suit shop/outlet after the admitted period of license i.e. after 28.02.2020.
There is no evidence on record that the defendant offered the possession or removal of his goods from the shop/outlet given to him on license or that the keys of the suit shop/outlet were with the security staff of the plaintiff school. Plaintiff has also relied upon the photographs of suit shop/outlet along with certificate under Section 65B of Indian Evidence Act as Ex.PW1/6 wherein the suit CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 23 of 31 shop/outlet is seen as lying locked. These photographs have not been disputed by Ld. Counsel for defendant when PW-1 was in witness box. In view of above, the plaintiff is entitled for decree of mandatory injunction as prayed. Accordingly, defendant is directed to remove his lock and material from the suit shop/outlet situated in Salwan Public School, Rajendra Nagar, Delhi, as shown in site plan i.e. Ex.P1, which the defendant claims now have become scrap, within one month from the date of decree after giving at least 24 hours prior notice in writing to the plaintiff, failing which, plaintiff is allowed to break open the lock of the suit shop/outlet and to take the physical possession of the suit shop/outlet. Accordingly, this issue is decided in favour of the plaintiff.
Issue no.4, 5 & 6:-
4. Whether the plaintiff is entitled for recovery of Rs.1,74,62,500/-, as prayed for ? (OPP)
5. Whether plaintiff is entitled for interest on Rs.1,74,62,500/-. If so, at what rate and for which period ? (OPP)
6. Whether the plaintiff is entitled to damages from 01.02.2023 with respect to suit property. If so, at what rate and for which period ? (OPP)
44. Issue no.4, 5 and 6 are taken up together as same relate to the claim of plaintiff regarding arrears of license fee, interest thereon and damages suffered by the plaintiff on account of not handing over the possession of suit CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 24 of 31 shop/outlet by the defendant even after expiry of license period. Onus to prove these issues was upon the plaintiff.
PW-1 in his affidavit of evidence Ex.PW1/A claims penalty/damages to the tune of Rs.1,74,62,500/- as on 31.01.2023 as per following table:-
Sr. Particular Amount in
No. (Rs.)
1 Arrears of license fee for the period 15,75,000/-
01.03.2019 till 28.02.2020 exclusive of GST 2 Arrears of license fee/unauthorized user 31,50,000/-
charge for the period 01.03.2020 till 28.02.2021 exclusive of GST 3 Arrears of license fee/unauthorized user 31,50,000/-
charge for the period 01.03.2021 till 28.02.2022 exclusive of GST 4 Arrears of license fee/unauthorized user 28,87,500/-
charge for the period 01.03.2022 till 30.06.2023 exclusive of GST 5 Penalty for the period 01.06.2019 till 67,00,000/-
31.01.2023 @ 5,000/- per day for 1340 days in terms of clause 10(C) of the License Agreement dated 22.02.2019 Total 1,74,62,500/-
45. Plaintiff has claimed penalty for the period 01.06.2019 till 31.01.2023 @ 5,000/- per day for 1340 days in terms of clause 10(C) of the License Agreement dated 22.02.2019 amounting to Rs.67,00,000/-.
46. Clause 10C of the License Agreement Ex.PW1/2 reads as under:-
".....In case of default in the payment of installment by stipulated date, a penalty of Rs.5000/- per day shall be charged up to 30 days; and in the event of the default in payment continuing beyond 30 days, without prejudice CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 25 of 31 to claim the License Fee amount, the License shall terminated on expiry of the said grace period of 30 days."
47. Thus, as per Clause 10 C of the License Agreement, the plaintiff could have claimed the penalty of Rs.5000/- per day only up to 30 days in default of payment of installment from the date of default and if the default in payment remained continued even after 30 days, the license shall be terminated. Admittedly, the default in making the payment of installment was w.e.f. 01.06.2019 when the cheque for remaining arrears i.e. 50% of the license fee was dishonoured. Therefore, plaintiff is not entitled to claim penalty for 1340 days in terms of Clause 10C of the License Agreement dated 22.02.2019 i.e. Ex.PW1/2.
48. While deciding issue no.1, I have already held that claim of the plaintiff regarding arrears of license fee for the period 01.03.2019 till 28.02.2020 to the tune of Rs.15,75,000/- is barred by limitation, therefore, plaintiff is not entitled for any arrears of license fee for the period 01.03.2019 till 28.02.2020 exclusive of GST.
49. Plaintiff has claimed arrears of license fee/unauthorized user charges for the period 01.03.2020 till 30.06.2023 total amounting to Rs.91,87,500/-. It is admitted case of the plaintiff that the suit shop/outlet was given to the defendant on license for the period of one year i.e. from 01.03.2019 till 28.02.2020 for a license fee of Rs.31,50,000/-. The license to run the suit shop/outlet came to an end on 01.03.2020 by efflux of time. Therefore, CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 26 of 31 plaintiff cannot claim arrears of license fee for the period 01.03.2020 to 28.02.2021, 01.03.2021 to 28.02.2022 and 01.03.2022 to 30.06.2023 equivalent to the license fee of Rs.31,50,000/- for the period 01.03.2019 till 28.02.2020 from the defendant. However, the plaintiff is entitled for damages for unauthorized occupation of the suit shop/outlet by the defendant for not removing his lock and belongings from the said shop/outlet.
50. Now the question comes to determine about the damages which the plaintiff is entitled for unauthorized occupation of the suit shop/outlet by the defendant for not vacating the same even after the expiry of license period i.e. 28.02.2020 and also by putting his lock and belongings therein. Plaintiff has not led any evidence regarding the damages but has claimed unauthorized user charges for the period i.e. 01.03.2020 to 28.02.2021 & 01.03.2021 to 28.02.2022 and 01.03.2022 to 30.06.2023 equivalent to the license fee of Rs.31,50,000/-, which was for the period i.e. from 01.03.2019 till 28.02.2020.
51. Hon'ble High Court of Delhi in Motor & General Finance Ltd. vs. M/s. Nirulas & Ors. 92 (2001) DLT 97, held that "when the defendants are prima facie unauthorised occupants, they cannot be allowed to remain in possession of the premises without paying any amount. The Court can take judicial notice of the location of the premises, its area, etc. for the purpose of awarding mesne profits to the landlord thereof.
52. Hon'ble High Court of Delhi in an another matter titled S. Kumar vs. G.K. Kathpalia 1991 (1) RCR 431, held CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 27 of 31 that "where the respondent landlord had not led any documentary evidence on the prevalent market rates of other premises in the vicinity, it was held by the Division Bench that keeping in mind the prime location of the suit premises, its proximity to the community centre and commercial activity, a sum of Rs.25,000/- p.m. would be a just and fair amount by way of damages/mesne profits from the date of the institution of the suit till the date of the delivery of the possession of the premises."
53. Hon'ble High Court of Delhi in an another matter titled as Suman Verma & Ors. vs Sushil Mohini Gupta & Ors., RFA 384/2013 held that:
"21................
(d) the calculation of mesne profits always involves some amount of guess work, as held by this court in International Pvt. Ltd. Vs. Saraswati Industrial Sundictes Ltd. (1992) 2 RCR 6, M.R. Sahni Vs. Doris Randhawa MANU/DE/0352/2008 and reiterated in Consep India Pvt. Ltd. supra and applicability of prevalent rents in the city and of which the Judges manning the Courts and who are born and brought up in the same city, are generally aware of.
(e) The Division Benches of this court in Vinod Khanna Vs. Bakshi Sachdev AIR 1996 Delhi 32 and S.Kumar Vs. G.K. Kathpalia 1991 (1) RCR 431, taking judicial notice, refused to interfere with the rate of mesne profits even where the landlord had not led any documentary evidence. Notice of CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 28 of 31 such increase has also been taken by the Supreme Court in Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18".
54. It is relevant to note that as per Clause 4 of the License Agreement Ex.PW1/2, the suit shop/outlet was given to the defendant on license to sell the text books, other publications and stationery items to the students of school as per the list approved by the school management and the price charged for books was not to be more than the MRP mentioned on the books. The license fee of Rs.31,50,000/- per annum was not only for providing space in the school but it was also on account of share of the profit, which the defendant could have earned by selling the books and stationery items to the students studying in that school at a price approved by the school management.
55. PW-1 Sh. Paramjit Khanna has admitted in his cross examination that a fresh tender was floated for the term year 2020 to 2023 for the same schools, pursuant to which, a license was granted to a new person but for a different premises in the campus and proved the copy of site plan of new outlet as Ex.PW1/D4 and the photograph of that outlet as Ex.PW1/D5, therefore, plaintiff school has not suffered any loss for the said period on account of sale of books, stationery items etc to the students of the school. The school of the plaintiff in which the suit shop/outlet was given on license to the defendant is situated at a prime location of Delhi i.e. Rajendra Nagar near Karol Bagh, therefore, keeping in view the space of the suit shop/outlet as well as CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 29 of 31 the area in which it is located, the court can take a judicial notice that such space of the plaintiff school could have fetch at least Rs.25,000/- per month, if same was given to any other person for running any outlet/canteen etc. Therefore, plaintiff is entitled for damages @ Rs.25,000/- per month from the defendant for not removing his lock and material from the suit shop/outlet w.e.f. 01.03.2020 till the date of decree i.e. total amounting to Rs.17,41,667/- (Rupees Seventeen Lac Forty One Thousand Six Hundred and Sixty Seven Only).
56. Plaintiff is also entitled for interest on the damages, so awarded @ 6 % per annum from the date of decree till realization. Accordingly, these issues are decided in favour of the plaintiff.
Relief:-
57. In view of my findings on aforementioned issues, a decree of mandatory injunction is passed in favour of plaintiff and against the defendant, thereby directing the defendant to remove his lock and material from the suit shop/outlet situated in Salwan Public School, Rajendra Nagar, Delhi as shown in site plan i.e. Ex.P1, which the defendant claims now have become scrap, within one month from the date of decree after giving at least 24 hours prior notice in writing to the plaintiff, failing which, plaintiff is allowed to break open the lock of the suit shop/outlet and to take the physical possession of the suit shop/outlet.
CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 30 of 3158. A decree of damages for a sum of Rs.25,000/- per month w.e.f. 01.03.2020 till the date of decree total amounting to Rs.17,41,667/- (Rupees Seventeen Lac Forty One Thousand Six Hundred and Sixty Seven Only) is also passed in favour of the plaintiff and against the defendant along with interest @ 6 % per annum on the damages, so awarded from the date of decree till realization. Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. Digitally signed by SANJEEV SANJEEV KUMAR File be consigned to Record Room. KUMAR MALHOTRA MALHOTRA Date:
2025.12.20 16:12:49 +0530 Announced in the open court on 20th December, 2025 (Sanjeev Kumar Malhotra) District Judge (Commercial Court)-08 Central, Tis Hazari Courts, Delhi CS (Comm) 1229/23 Salwan Education Trust vs. M/s Book Care Centre Page 31 of 31