Delhi District Court
Bank Of Baroda vs M/S Jagat Talkies Distributors on 19 March, 2026
IN THE COURT OF SH. MANOJ KUMAR-I: DISTRICT JUDGE
(COMMERCIAL COURT)-05, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No. DLCT01-006508-2024
CS (COMM) No. 524/2024
In the matter of:
Bank of Baroda,
Head office at:
Mandavi Baroda,
Gujarat-390006
Branch office at:
5465, Laxmi Building,
Near Clock House,
Townhall, Chandni Chowk Branch,
Delhi-110006
Through its Chief Manager,
Ms. Monika Gulia. ... Plaintiff
VERSUS
1. M/s Jagat Talkies Distributors,
1489, 2nd Floor, Chandni Chowk,
Delhi-110006
2. Mr. Vijay Narain Seth,
S/o Mr. Late Jagat Narain Seth,
Partner of M/s Jagat Talkies Distributors,
1489, 2nd Floor, Chandni Chowk,
Delhi-110006
3. Mr. Rohit Narain Seth,
CS (COMM) No. 524/2024 Page No. 1 of 37
S/o Mr. Vijay Narain Seth,
Partner of M/s Jagat Talkies Distributors,
1489, 2nd Floor, Chandni Chowk,
Delhi-110006
4. Mr. Varun Narain Seth,
S/o Mr. Vijay Narain Seth,
Partner of M/s Jagat Talkies Distributors,
1489, 2nd Floor, Chandni Chowk,
Delhi-110006
5. Mrs. Asha Seth,
LR and W/o late Virender Narain Seth
6. Mr. Vidur Seth,
LR and S/o late Virender Narain Seth
7. Mrs. Praveena Jhalani,
LR and D/o late Virender Narain Seth
8. Mrs. Anisha Anand,
LR and D/o late Virender Narain Seth
Defendants No. 2 to 8 also at:
6-A, Jantar Mantar Road,
Delhi-110001. ... Defendants
Date of Institution : 29.4.2024
Date of Reserving judgment : 06.3.2026
Date of pronouncement : 19.3.2026
For Plaintiff : Ms. Geetanjali Sharma, Advocate
For Defendants : Mr. Satish Sahai and Ms. Malaika
Farhat, Advocate for defendant
CS (COMM) No. 524/2024 Page No. 2 of 37
Nos. 1 to 4 and 6.
Defendant Nos. 5, 7 and 8 are ex
parte
JUDGMENT :
This is a suit for recovery of ₹18,77,524/- instituted by plaintiff Bank of Baroda against defendants M/s Jagat Talkies Distributors and others.
2. As per the plaintiff's version the facts are that the plaintiff bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having its head office at Mandavi, Baroda, Gujarat and branch office amongst other branches at 5465, Laxmi Building, Near Clock House, Town Hall, Chandni Chowk branch, Delhi-110006; that the plaintiff is carrying its business of banking in India; that with effect from 01.4.2019 Vijaya Bank had amalgamated with Bank of Baroda vide amalgamation scheme dated 02.01.2019, and now it is known as Bank of Baroda; that para 4(9) of the said scheme clearly states that the recovery proceedings shall not be adversely affected by the said amalgamation; that the present suit has been filed by the plaintiff through its authorized representative /constituted attorney Ms. Monika Gulia, who, at the time of the institution of the suit, was working as Chief Manager of Chandni Chowk branch of the plaintiff; and was competent to sign and verify plaints, written statements, applications, petitions, affidavits, vakalatnamas, executions, pleadings and all kinds of applications etc., and to do all CS (COMM) No. 524/2024 Page No. 3 of 37 things, acts and deeds necessary for proper conduct of legal proceedings filed on behalf the plaintiff vide General Power of Attorney dated 28.9.2022; that since 17.11.1971, the plaintiff was inducted as a tenant in property of defendants, bearing No. 1488, Ward No. 6, Chandni Chowk, Delhi-110006; that thereafter the plaintiff also became a tenant in another property of the defendants, bearing No. 1489, Chandni Chowk, Delhi-110006; that in that regard, lease deeds dated 17.11.1971, 17.01.1975, 09.7.2002 and 20.3.2012 were duly executed between the defendants and the plaintiff; that the last lease deed so executed and registered was dated 20.03.2012 in respect of both the above-said tenanted premises for a period of 15 years with effect from 18.11.2011 at the rent of ₹2,74,454/- per month for first five years, ₹3,43,074/- per month for next five years, and ₹4,28,844/- per month was the rent fixed for next remaining five years; that as such, the plaintiff had been a tenant in possession of the above said properties of the defendants, bearing No. 1488-89, Chandni Chowk, Delhi-110006 in respect of Ground Floor measuring a carpet area of 1752 sq. ft. and 1595 sq. ft. in Mezzanine Floor, thus making total carpet area of 3347 sq. ft. (hereinafter referred to as 'the suit property'); that the above said tenancy was governed by the terms and conditions of registered lease deed dated 20.3.2012, and rent was being paid by the plaintiff as per the rate applicable at that time; that with the consent and permission of defendants, the plaintiff got installed an electric connection bearing CA No. 150002700 in the suit property and whatever bills were being raised by the connection CS (COMM) No. 524/2024 Page No. 4 of 37 provider, that is, BSES Yamuna Power Ltd., were being duly paid by the plaintiff directly to the said company regularly; that for getting the said electricity connection, the plaintiff had to deposit cash security deposit of ₹52,500/- and service line cum development charges of ₹16,000/-, thus making a total sum of ₹68,500/-; that at the time of installation of electric connection, the defendants had assured the plaintiff that at the time of vacation of the suit property the above said amount of ₹68,500/- shall be reimbursed/paid by them to the plaintiff; that as per clause (2) of above said lease deed dated 20.3.2012, the plaintiff had paid a sum of ₹16,46,724/- to the defendants being six months' rent in respect of the suit property as deposit of rent to be adjusted towards the rent for the last six months' of the tenancy; that as per clause (4) of the said lease deed dated 20.3.2012 it was agreed between the defendants and the plaintiff that the plaintiff shall hand over the possession of the suit property to them on expiry of the period of lease or on the expiry of the period of the option (as mentioned in clause (2) of the lease deed) should the plaintiff bank avail, on refund of deposit of ₹16,46,724/- by the defendants to the plaintiff bank; that in due course of time, the plaintiff bank decided to vacate the suit property on 30.5.2020 and availed the liberty to vacate the suit property at any time during the period of lease as per clause (2) of the said lease deed, and the plaintiff bank duly gave six month's verbal notice in this regard to the defendants and they gracefully received and accepted the said notice without raising any objection of any kind whatsoever; that at the time of giving the said CS (COMM) No. 524/2024 Page No. 5 of 37 verbal notice the plaintiff duly informed the defendants that thence it shall be adjusting deposit of ₹16,46,724/- (six months' rent) against the last six months' rent of the tenancy period ending on 30.5.2020, in terms of clause (4) of the lease deed dated 20.3.2012; that on the matter of adjustment of the six months' rent, the defendants represented that they were passing through a severe financial crunch, and requested the plaintiff not to make the said adjustment of six months' rent at that stage and assured the plaintiff that the said deposit amount of ₹16,46,724/- shall be refunded by them to the plaintiff at the time of handing over the possession of the suit property along with above said amount of ₹68,500/- (cash security deposit of ₹52,500/- and service line cum development charges of ₹16,000/- towards electricity connection); that since the plaintiff had a long relationship with the defendants, the plaintiff agreed to their requests; that as such at the time of vacation of the property, they (the defendants) were to pay a sum of ₹17,15,224/- (₹16,46,724/- + ₹68,500/-) to the plaintiff bank; that as already intimated by way of verbal notice to the defendants, the plaintiff vacated the suit property on 30.5.2020 and handed over peaceful, vacant, physical possession of the suit property to them; that against the said handing over the possession to them, by letter dated 01.6.2020 the defendants acknowledged the taking over the vacant possession of suit property in order and confirmed that the entire rents and outgoings in respect of the tenanted premises were received by them upto date 30.5.2020, and also that there were no dues payable by the plaintiff on CS (COMM) No. 524/2024 Page No. 6 of 37 any account whatsoever; that in the said letter the defendants had pointed out that electricity dues of ₹95,440/- were still payable by the plaintiff to BSES Yamuna Power Ltd; that in order to finish off the liabilities, the plaintiff duly deposited the said pending electricity dues and the plaintiff cleared all its liabilities towards the defendants; that on the other hand the defendants assured the plaintiff that they will get the above-said electricity connection transferred in the name of their next new tenant and assured that no further electricity bill will be generated in the name of the plaintiff; that at the time of handing over the possession to the defendants the above said amount of ₹17,15,224/- became due and payable by them which they were supposed to pay on 30.5.2020 itself; that the defendants again represented and requested the plaintiff that they were already passing through the severe financial crunch and also Covid period was going on due to which they were in acute difficulty to pay the said outstanding amount immediately to the plaintiff and they promised that they will shortly pay the said outstanding amount to the plaintiff and sought a few days time for the said payment; that most reluctantly the plaintiff gave them some time; that the defendants did not stick to the representations and promises made by them and did not clear the outstanding dues despite various requests and reminders of the plaintiff; that every time the defendants have been evading the payment on the one pretext or the other and had been making promises to pay the dues of the plaintiff in next few days; that the said representations, assurances and promises never became a CS (COMM) No. 524/2024 Page No. 7 of 37 reality and the said promises proved to be false; that the plaintiff had no other choice but to keep pursuing the defendants for expediting the payment but nothing proved fruitful and despite passing a long time they did not clear their dues and became a persistent defaulter in making the payment to the plaintiff; that in the suit property vacated by the plaintiff, the defendants inducted IDFC First Bank Ltd. as a new tenant and provided them the same electric connection which was in the name of the plaintiff; that they did not get the said electric connection transferred in the name of IDFC First Bank Ltd. despite assurances given by them to the plaintiff; that as a result, a bill dated 30.7.2021 was generated by BSES Yamuna in the name of the plaintiff, amounting to ₹1,62,300/- which was delivered to the plaintiff; that the staff of the plaintiff somehow could not notice that it was not their responsibility and liability to pay the said bill and IDFC First Bank Ltd. was to pay the said bill; that under some confusion/ misunderstanding/ bona fide mistake/ inadvertently oversight, the said bill was paid by the plaintiff; that after realizing the mistake, the plaintiff informed the defendants to bear the burden of payment of the said wrongly paid bill by the plaintiff to which they agreed and promised to pay and reimburse ₹1,62,300/- to the plaintiff on this account also; that thus, total outstanding amount of defendants came to ₹18,77,524/- (₹16,46,724/- + ₹68,500/- + ₹1,62,300/-) which they promised to pay the plaintiff; that on 06.5.2023 the plaintiff sent legal notice through its counsel to the defendants under speed post; that even after receiving the same on 08.5.2023, they did not CS (COMM) No. 524/2024 Page No. 8 of 37 pay the outstanding dues of the plaintiff; that despite lot of assurances and promises made by the defendants to pay the outstanding amount of ₹18,77,524/-, they miserably failed to clear their outstanding amount and at present they have made radio silence and are with mala fide intentions withholding the monies legally due and payable to the plaintiff; that on date of filing of the suit, the defendants were liable to pay the above said amount to the plaintiff along with interest accrued thereon at the rate of 18% per annum as the said rate of interest was prevailing in the business world and was as per custom, usage and practice; that all the defendants are under legal obligation and liability to pay the legitimate dues of the plaintiff individually, jointly, severally and co-extensively with each other, including their legal heirs; that on 19.5.2023 the plaintiff had filed a civil suit for recovery, bearing No. 608/2023 titled as Bank of Baroda v. M/s Jagat Talkies & others which was listed before Sh. Rajesh Malik. ADJ, Central District, Tis Hazari Courts, Delhi; that on 07.11.2023 the defendants No. 1 to 4 had put their appearance and intimated the court that the defendant No. 5 had already expired; that despite directions of the court passed on 07.11.2023, the defendants neither provided the date of death of the defendant No. 5 nor the names and details of his LRs; that on 18.4.2024 the plaintiff from its reliable sources came to know that the defendant No. 5 had expired in October, 2018, leaving behind legal heirs: (i) Mrs. Asha Seth (wife), (ii) Mr. Vidur Seth (son), (iii) Mrs. Praveena Jhalani (daughter), (iv) Mrs. Anisha Anand (daughter); that all the above-said legal heirs of deceased CS (COMM) No. 524/2024 Page No. 9 of 37 Virender Narain Seth are liable to pay dues, debts and liabilities of the said deceased, as such, the above legal heirs have been impleaded in the present suit as the defendant No. 5 to 8; that in the above-said civil suit for recovery, bearing No. CS DJ 608/2023, the defendant No. 1 to 4 filed the written statement wherein they had raised the objection that the said civil suit for recovery was not maintainable as the same ought to have been filed in commercial court being a commercial suit; that as such, on the request of the plaintiff, on 05.02.2024 the above said civil suit for recovery was returned to the plaintiff for want of jurisdiction with the permission to file the same in competent jurisdiction in accordance with law; that the permission was also granted to use the returned court fee in the fresh suit to be filed in the competent court; that the present suit has been filed in this court as the jurisdiction to try the present matter lies with this court; that the present suit is the reproduction of the civil suit for recovery bearing No. CS DJ 608/2023; that the defendant No. 1 to 4 had informed the court on 07.11.2023 in the said suit that Sh. Virender Narain Seth, that is, the defendant No. 5 of the said suit had expired; that as such, in the present suit, in place of the said deceased Virender Narain Seth, his legal heirs have been impleaded as the defendant No. 5 to 8 with the simple consequential changes in the plaint; that the said necessary changes do not alter the nature of suit and do not introduce any fresh cause of action and also do not hamper or prejudice the interest of any of the parties to the suit; that in suit No. CJ DJ 608/2023, the plaintiff did not claim any interest accrued on ₹18,77,524/- till the date CS (COMM) No. 524/2024 Page No. 10 of 37 of filing the said suit, that is, 19.5.2023; that similarly in the present suit also the plaintiff is not claiming any interest accrued prior to 19.5.2023; that the same amount of ₹18,77,524/- along with pendente lite and future interest at the rate of 18% p.a. is being claimed in the present suit which was claimed in suit No. DJ CS 608/2023; that as such in the present suit there is no requirement of mentioning bifurcation of principal and interest in terms of Order VII Rule 2A of CPC; that all the defendants are under legal obligation and liability to pay the legitimate dues of the plaintiff individually, jointly, severally and co-extensively with each other including their legal heirs; that in order to make the compliance of section 12A of the Commercial Courts Act, 2015, without any loss of time, on 05.02.2024 itself the plaintiff approached DSLSA Mediation Authority, Central District. Tis Hazari Courts, Delhi and filed Pre-Institution Mediation application against the defendants, but the matter could not be settled and the DSLSA Mediation Authority issued Non-Starter Report dated 25.4.2024; that the present suit is filed without loss of time, immediately at the earliest opportunity, after getting the Non Starter Report. It is further stated in the plaint that due to the acts of the defendants a cause of action arose in favour of the plaintiff at different dates leading upto the institution of the present suit.
3. The suit is contested by the defendant Nos. 1, 2, 3, 4 and 6 by way of a written statement wherein preliminary objections are taken to the effect that the suit is bared by limitation and as such liable to be dismissed out rightly; that the cause of action for filing the present suit CS (COMM) No. 524/2024 Page No. 11 of 37 accrued on 30.5.2020 and the limitation for filing the suit expired on 29.5.2023 when the prescribed period of limitation of three years expired; that admittedly the plaintiff filed the suit initially on 27.5.2023 which was registered as suit No. CSDJ/608/2023 titled as Bank of Baroda v. Jagat Talkies Distributors and four others including Mr. Virender Narain Seth as defendant No. 5; that the said suit was assigned to the court of Sh. Rajesh Malik, learned ADJ-06, Central, Tis Hazari Courts Delhi; that the defendant Nos. 1 to 4 filed their written statement on 29.11.2023 in that court; that in that written statement the defendant Nos.1 to 4 took an objection by way of preliminary objection No. 1 that the suit of the plaintiff was bared by the provisions of the Commercial Courts Act, 2015, as amended up to date, as the subject matter of the suit was a commercial dispute under section 2 of the said Act, and therefore, the court did not have the jurisdiction to entertain and try the suit and the plaint was liable to be rejected; that the plaintiff was fully aware of the said objections on 30.11.2023; that the plaintiff on 05.02.2024 moved an application under Order VII Rule 10 read with section 151 C.P.C., and by order dated 05.02.2024 itself the plaint was returned to be filed as accordance with law by the court of Sh. Rajesh Malik, learned ADJ-06/ Central, Tis Hazari Courts, Delhi; that the plaintiff despite knowing that the subject matter of the suit was commercial dispute and could not be instituted in civil court and despite being made aware by the written statement of the defendant No. 4 in the previous suit negligently continued the said suit till 05.02.2024 without any rhyme and reason and CS (COMM) No. 524/2024 Page No. 12 of 37 without any valid cause and this fact also reflects that the plaintiff was not prosecuted the previous suit with due diligence; that on 05.02.2024 an application for pre-institution mediation was filed before the Central District Legal Service Authority in the room No. 287, Tis Hazari Courts, Delhi which proceedings failed on 18.4.2024; that the present suit has been filed on 27.4.2024; that even if the period during which the parties remained occupied with pre-institution mediation is not computed/ excluded, that is, 05.02.2024 to 18.4.2024 as per section 12A of the Commercial Courts Act, even then the present suit has been filed beyond the period of three years, as prescribed by law of limitation, as such liable to be dismissed; that the plaint is otherwise liable to be dismissed for want of non-compliance of the provisions of Order VII rule 6 C.P.C. as the plaintiff has not disclosed the ground upon which exemption from the law of limitation is claimed which is mandatory and obligatory and in the absence of which it will not be open to the plaintiff to seek exemption from limitation; that the plaint is liable to be rejected as it is not in according to the procedure prescribed for drafting of plaint; that the suit is bad for non-joinder of the IDFC First Bank Chandni Chowk Branch as a defendant on the basis of allegations with regard to alleged electricity dues as claimed in the suit is concerned as the presence of the said bank is necessary for adjudication of the alleged claim; that the previous suit bearing No. 608/2023 titled as Bank of Baroda vs. M/s Jagat Talkies Distributors and Ors. was filed by impleading one Sh. Virender Narain Seth, the defendant No. 5 in that suit who had already CS (COMM) No. 524/2024 Page No. 13 of 37 died in October 2018, that is, much prior to the institution of that suit and was a nullity as no suit lies against a dead person; that once a previous suit was a nullity no fresh suit lies on the same subject matter and having the same cause of action against the legal representatives as has been done by the plaintiff in the present suit; that the suit filed impleading the defendant Nos. 5 to 8 as the LRs for the first time is clearly bared by time against them and as such the suit is liable to be dismissed against all the defendants as there cannot be conflicting judgment/decree in the same suit particularly when the cause of action pleaded is joint and inseparable. In the reply on merits, the averments made by the plaintiff in support of its claim are disputed and denied it is stated that the suit may be dismissed. In the written statement it is denied that Ms. Monika Gulia was competent, duly empowered to, to institute the present suit. In the written statement it is denied that the plaintiff got installed any electric connection bearing C.A. No. 150002700 with the consent and permission of the defendants or that the plaintiff had to deposit cash security of ₹52,500/- and service line cum development charges of ₹16,000/- in all ₹68,500/-. It is further denied that at the time of installation of electric connection, or at any other time the defendants assured the plaintiff to reimburse/pay the alleged amount of ₹68,500/- to the plaintiff. It is stated that it was the Vijaya Bank and not the plaintiff as alleged. It is further stated that no such terms and conditions of bearing the cost of the alleged connection exists in the lease deed of the year 1971 or other lease deeds which only provide that for any CS (COMM) No. 524/2024 Page No. 14 of 37 additional electricity or water connection required by the lessee shall be provided to them at their cost as per terms and condition No. 5 of the agreement dated 17.11.1971 and other lease deeds filed by the plaintiff on pages 40 to 65; that no such plea of alleged oral consent or permission can be raised by the plaintiff in view of written lease deed. It is further stated in the written statement that the plaintiff is falsely alleging verbal notice in terms of clause 2 of the lease deed by concealing the real fact that a notice in writing dated 24.09.2019, was given to the defendant for vacation of the premises by the end of the six months from the date of the receipt of the said notice and requesting for adjustment the last six months' rent from the interest free deposit rent of ₹16,46,724/-; that the defendants in view of the same accordingly adjusted the rent for six months; that a letter dated 01.06.2020, was also written by defendant no. 4 in which it was clearly mentioned that all the rents had been received and there was no dues to the bank in that behalf except electricity dues of ₹95,440/-; that there was no mention of adjustment of 6 months' rent remained pending in the said letter if there had been such dues remained pending; that the very fact the bank surrendered the tenancy and delivered vacant possession without any demur and reservations reflects that the claim of recovery of ₹16,46,724/- is false and baseless; that the plaintiff has falsely alleged that the defendants ever represented that they were passing through a severe financial crunch or ever requested the plaintiff not to make the said adjustments of six months' rent at that stage and ever assured the CS (COMM) No. 524/2024 Page No. 15 of 37 plaintiff that the said amount of ₹16,46,724/- shall be refunded by the defendants to the plaintiff at the time of handing over the possession of the suit property along with ₹68,500/- alleged to be comprising of cash security deposit of ₹52,500/- and service line cum development charges alleged to be towards electricity connection; that the plaintiff has failed to produce any writing or document to that effect and its allegations of oral representation to that effect even without giving any specific particulars like date, month or year and name and other specific particulars of the alleged person who gave the assurance is not worthy of any reliance when everything was got reduced into writing by the bank relating to terms and conditions of the tenancy; that the so called electric connection was not got installed by the defendants nor it ever existed in the name of defendants and the said connection in the electricity was never consumed by the defendants. In the written statement it is denied that the defendants ever gave assurance to the plaintiff that the electric connection would be transferred in the name of IDFC First Bank. It is further stated in the written statement that in case the plaintiff has paid alleged amount of ₹1,62,300/- by confusion/misunderstanding/bona fide mistake/inadvertence/oversight then the defendants cannot be held liable to reimburse the same to the plaintiff, and it can recover the said amount from IDFC First Bank if they consumed the electricity during the period when the alleged bill was raised. In the written statement it is denied that the defendants ever represented and requested the plaintiff that the defendants were passing through any kind of financial crunch or they CS (COMM) No. 524/2024 Page No. 16 of 37 were facing any kind of financial hardship due to Covid-19 period. In the written statement it is denied that a sum of ₹18,77,524/- is outstanding against the defendants.
4. The suit is not defended by the defendant Nos. 5, 7 and 8; and they were proceeded against ex parte.
5. The plaintiff filed a replication to the written statement of the defendant Nos. 1, 2, 3, 4 and 6 wherein the defence taken by the defendants are traversed and the averments made in the plaint are reiterated.
6. On 23.7.2024, on the pleadings of the parties following issues were framed, namely:-
1. Whether the suit is barred by period of limitation? OPD
2. Whether plaintiff is entitled to suit amount as prayed for?
OPP
3. Whether plaintiff is entitled to any interest, if so, for which period and at what rate? OPP
4. Relief.
7. In support of its claim the plaintiff got examined PW1 Sarthak Malakar, PW2 Monika Gulia and PW3 Deenatha Chandra. PW1 Sarthak Malakar during his examination-in-chief tendered his affidavit Ex.PW1/A along with documents Ex.PW1/1 (copy of agreement dated 17.11.1971), Ex.PW1/2 (copy of indenture of lease dated 17.01.1975), Ex.PW1/3 (copy of lease deed dated 09.7.2002), Ex.PW1/4 (copy of lease deed dated 20.3.2012), Ex.PW1/5 (copy of CS (COMM) No. 524/2024 Page No. 17 of 37 statement of advance rent deposit), Ex.PW1/6 (copy of statement of rent paid), Ex.PW1/7 (copy of letter dated 01.6.2020 written by the defendant to the plaintiff regarding taking over the vacant possession of the suit property), Ex.PW1/8 (copy of statement of lighting charges), Ex.PW1/9 (copy of account ledger inquiry), Ex.PW1/10 (copy of legal notice dated 06.5.2023), Ex.PW1/11 (four postal receipts dated 06.5.2023), Ex.PW1/12 (copies of tracking reports), Ex.PW1/13 (certificate purporting to be under section 2A(b) and 2A(c) of the Bankers' Books Evidence Act, 1891 read with section 65-B of Indian Evidence Act), Ex.PW1/14 (the plaint), Ex.PW1/15 (court fee), Ex.PW1/16 (certified copy of written statement and other proceedings filed on behalf of the defendant Nos. 1 to 4 in the court of Sh. Rajesh Malik, Additional District Judge-6, Central, Tis Hazari Courts, Delhi), Ex.PW1/17 (copy of order sheet dated 05.02.2024), Ex.PW1/18 (certified copy of order sheet dated 27.5.2023), Ex.PW1/19 (certified copy of order sheet dated 05.9.2023), Ex.PW1/20 (certified copy of order sheet dated 07.11.2023), Ex.PW1/21 (Non-Starter Report dated 25.4.2024), Ex.PW1/22 (copy of the Board Resolution dated 14.11.2017), Mark-P1 (copy of amalgamation scheme), Mark-P2 (copy of bill of supply for electricity) and Mark-P3 (copy of payment receipt). PW2 Monika Gulia during her examination-in-chief tendered her affidavit Ex.PW2/A along with documents Ex.PW2/1 (copy of Power of Attorney dated 28.9.2022) and Ex.PW2/2 (declaration on oath under Order XI Rule 6(3) of CPC). PW3 Deenatha Chandra during his CS (COMM) No. 524/2024 Page No. 18 of 37 examination-in-chief tendered his affidavit Ex.PW3/A. PW1 Sarthak Malakar, PW2 Monika Gulia and PW3 Deena Nath Chandra were cross- examined by counsel for the defendant Nos. 1 to 4 and 6 and during their respective cross-examination documents Ex.PW1/D1, Ex.PW2/3, Ex.PW2/4 and Ex.PW2/5 were brought on the record, and thereafter evidence on behalf of the plaintiff was closed.
8. In their defence, the defendant Nos. 1 to 4 and 6 got examined DW1 Vijay Narain Seth, who during his examination-in-chief tendered his affidavit Ex.DW1/A. DW1 Vijay Narain Seth was cross- examined by counsel for the plaintiff, and thereafter evidence on behalf of the defendants was closed.
9. I have heard Ms. Geentanjali Sharma, Advocate for the plaintiff and Ms. Malaika Farhat, Advocate for the defendant Nos. 1 to 4 and 6 and have gone through the material on record carefully. My issue wise findings are as follows:-
Re: Issue No. 1:
10. Onus of proof qua this issue was on the defendants. Having drawn the attention of the court on the pleadings in the case and the evidence adduced by the parties it is submitted by counsel for the defendants that cause of action, if any, in favour of the plaintiff had arisen on 30.5.2020 when the possession of the suit property was handed over by the plaintiff to the defendants. It is further submitted by counsel for the defendants that the present suit was instituted on or about 29.4.2024, therefore, the suit is barred by limitation.
CS (COMM) No. 524/2024 Page No. 19 of 37
11. On the other hand, it is submitted by counsel for the plaintiff that initially, on 27.5.2023, the suit was instituted in the court of Sh. Rajesh Malik, the learned Additional District Judge-06, Central District, Tis Hazari Courts, Delhi, where, on 05.02.2024 the plaint was returned on the ground that the subject matter of the dispute between the parties was within the jurisdiction of the District Judge (Commercial Court) and not within the jurisdiction of Additional District Judge-06, Central District, Tis Hazari Courts, Delhi. It is further submitted by counsel for the plaintiff that the time taken in pursuing the suit in the court of Sh. Rajesh Malik, the learned ADJ-06, Central District, Tis Hazari Courts, Delhi is required to be set off while computing the prescribed period of limitation, and thus, the suit is within limitation.
12. It is not in dispute that plaintiff is the successor in interest of Vijaya Bank. It is also not in dispute that there existed relationship of lessor and lessee between the defendant No. 1 and the said Vijaya Bank, and the said relationship between the parties lasted till 30.5.2020, when, after serving a notice upon the defendants, the plaintiff vacated the suit property. It is also not in dispute that the first lease deed between the defendant No. 1 and the predecessor in interest of the plaintiff was executed in the year 1971 and last such deed was executed on 20.3.2012, effective from 18.11.2011, for a period of fifteen years with stipulations, inter alia, that the lessee shall be at liberty to vacate the suit property at any time during the period of lease on giving six month's notice; and that the lessee had paid to the lessor a sum of ₹16,46,724/- being six CS (COMM) No. 524/2024 Page No. 20 of 37 months rent in respect of the suit property as deposit of rent to be adjusted towards rent for the last six month's of the tenancy. It is also not in dispute that during the currency of the lease, last one or the prior one, the said Vijaya Bank got installed an electricity connection (CA No. 150002700) at the suit property, and in that connection deposited ₹52,500/- as cash security and ₹16,000/- as service line cum development charges with BSES Yamuna Power Limited. The plaintiff claims, and this claim of the plaintiff is denied by the defendants, that at the time of installation of electricity connection, the defendants had assured it that at the time of vacation of the suit property the said amount of ₹68,500/- (₹52,500/- + ₹16,000/-) shall be reimbursed/paid by them to the plaintiff. According to the plaintiff, at the time of vacation of the suit property the defendants promised that they would have the electricity connection transferred in the name of the new lessee, but they did not do so, as a result of which an electricity consumption bill (copy:
Mark P-2) dated 31.7.2021 in the sum of ₹1,62,300/- was raised by BSES Yamuna Power Limited against the plaintiff which was paid by it by mistake. It is the claim of the plaintiff that at the time of the vacation of the suit property the defendants were liable to refund ₹16,46,724/- (₹2,74,454/- x 6) which was lying with them as deposit of rent to be adjusted towards rent for the last six month's of the tenancy; and that they were also under obligation to pay ₹68,500/- to the plaintiff which the plaintiff had deposited with BSES Yamuna Power Limited at the time of installation of the electricity connection. Further, the plaintiff CS (COMM) No. 524/2024 Page No. 21 of 37 claims that the defendants are liable to pay to it the electricity charges in the sum of ₹1,62,3000/- paid by it to BSES Yamuna Power Limited without consumption of electricity.
13. Out of the said claims, the cause of action, if any, for recovery of ₹17,15,224/- (₹16,46,724/- + ₹68,500/-) arose on or about 30.5.2020, the date on which the plaintiff vacated the suit property and handed over the vacant possession of the same to the defendants; and the cause of action, if any, for recovery of ₹1,62,300/- arose not before 06.8.2021 when the electricity bill Mark-P2 was paid. Thus, the suit is multifarious.
14. The suit in this court was instituted on or about 29.4.2024, and there can be no doubt that the claim of the plaintiff for recovery of ₹1,62,300/- is within the period of three years from 06.8.2021.
15. For further discussion on the issue the observations of the Hon'ble Supreme Court in its order dated 10.01.2022 rendered in Suo Motu Writ Petition (C) No. 3 entitled In Re: Cognizance for Extension of Limitation are noteworthy. In the said order dated 10.01.2022 the Apex Court, inter alia, held as follows:
[I]t is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
16. Thus, in view of the order passed by the Hon'ble Supreme Court in In Re: Cognizance For Extension of Limitation, the limitation period was not running in the suits and other proceedings with effect from 15.3.2020 to 28.2.2022, hence the period of limitation in the CS (COMM) No. 524/2024 Page No. 22 of 37 present suit started running on 01.3.2022 and thus, the plaintiff could have instituted the suit till 28.02.2025. In the present matter the suit was instituted on or about 29.4.2024, therefore, even if the period taken by the plaintiff in pursuing the suit in the court of Sh. Rajesh Malik, the learned ADJ-06, Central District, Tis Hazari Courts, Delhi is not discounted, the suit is within limitation. Issue No. 1 is decided in favour of the plaintiff and against the defendants.
Re: Issue No. 2.
17. Onus of proof qua this issue was on the plaintiff. The first claim of the plaintiff is for recovery of ₹16,46,724/-, which, under Ex.PW1/4 was paid by it to the defendants as deposit of rent to be adjusted towards rent for the last six month's of the tenancy. According to the plaintiff, while exercising its option under clause (2) of Ex.PW1/4 it had served a verbal notice upon the defendants to vacate the suit property after six months and subsequently, on 30.5.2020 it vacated the suit property and handed over its vacant possession to the defendant No. 4, who on 01.6.2020 signed Ex.PW1/7 whereby the defendants had confirmed that they had taken over possession of the suit property on 30.5.2020; that their rents and outgoing in respect of the suit property had been received by them up to date - 30.5.2020; and that there were no dues from the plaintiff in that behalf. According to the plaintiff, although the said deposit of ₹16,46,724/- was to be adjusted against the rent for the notice period, but at the request of the defendants who represented that they were passing through a severe financial crunch and CS (COMM) No. 524/2024 Page No. 23 of 37 requested the plaintiff not to make adjustment of six month's rent at that stage and assured that the deposit of ₹16,46,724/- shall be refunded by them to the plaintiff at the time of handing over the possession of the suit property, it kept on paying the monthly rent to them till vacation of the suit property. According to the plaintiff, on several occasions, and lastly by way of notice Ex.PW1/10, it called upon the defendants to refund the said deposit of ₹16,46,724/-, but they failed to do so. In this connection, apart from the testimonies of PW1 Sarthak Malakar, PW2 Mrs. Monika Gulia and PW3 Deena Nath Chandra, the plaintiff relies upon Ex.PW1/5 and Ex.PW1/6.
18. The defendants do not dispute that the sum of ₹16,46,724/- was deposited by the plaintiff with them. According to the defendants, and as deposed by DW1 Vijay Narain Seth, the plaintiff did not serve any verbal notice of termination of lease, and instead it served a written notice dated 24.9.2019 through its counsel; and that the defendants never expressed any financial difficulty to the plaintiff, and they adjusted the sum of ₹16,46,724/- towards payment of rent as desired by the plaintiff through notice Ex.PW1/D1.
19. In support of its claim the plaintiff has got examined three witnesses, namely, PW1 Sarthak Malakar, PW2 Mrs. Monika Gulia and PW3 Deena Nath Chandra. As per affidavits Ex.PW1/A, Ex.PW2/A and Ex.PW3/A tendered by PW1 Sarthak Malakar, PW2 Mrs. Monika Gulia and PW3 Deena Nath Chandra respectively during their respective examination-in-chief PW1 Sarthak Malakar was posted as Chief CS (COMM) No. 524/2024 Page No. 24 of 37 Manager with the branch concerned of the plaintiff on or about 01.7.2024, after institution of the present suit; PW2 Mrs. Monika Gulia remained posted as Chief Manager with the branch concerned of the plaintiff from 28.9.2022 to 01.6.2024; and PW3 Deena Nath Chandra remained posted as Chief Manager with the branch concerned of the plaintiff from 01.9.2020 to 27.9.2022. No official of the plaintiff who remained posted with the branch concerned of the plaintiff (Chandni Chowk) prior to 01.6.2020 has been examined as witness by the plaintiff, and PW1 Sarthak Malakar, PW2 Mrs. Monika Gulia and PW3 Deena Nath Chandra do not claim that they have personal knowledge about the facts that happened on or before 01.6.2026. During the cross- examination of PW1 Sarthak Malakar, however, it has emerged that before vacation of the suit property, the plaintiff got served a notice Ex.PW1/D1 dated 24.9.2019 upon the defendants whereby it notified them that it would vacate the suit property after six months (on or about 31.3.2020). The plaintiff actually vacated the suit property on 30.5.2020, after two months. The said notice Ex.PW1/D-1 reads as follows:
Dated: 24/09/2019 SGL/19/449/1 To, M/s Jagat Talkies Distributors 1488-89 Jagat Talkies Distributors Building Chandani Chowk Delhi 110006.
Kind Attention:
1. Mr. Vijay Narain Seth R/o 6-A Jantar Mantar Road Janpath New Delhi 110001 CS (COMM) No. 524/2024 Page No. 25 of 37
2. Mr. Rohit Seth R/o 6-A Jantar Mantar Road Janpath New Delhi 110001
3. Mr. Varun Seth R/o 6-A Jantar Mantar Road Janpath New Delhi 110001
4. Mr. Virender Narain Seth (Karta of Virender Narain Seth (HUF) R/o 6-A Jantar Mantar Road Janpath New Delhi 110001 SUB: Legal Notice to Determine Lease of Property No. 1488-89, situated at Chandni Chowk, Delhi-110006 Dear Sir, FOR and on behalf of and under instructions from our client, namely Vijaya Bank (Now known as Bank of Baroda w.e.f 01.04.2019), a body corporate established and incorporated under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and having its Head Office at Mandvi, Baroda, and the Corporate Office at Baroda Corporate Centre, Plot No. C-26, Block G, Bandra Kurla Complex, Bandra (East), Mumbai 400051, and one of its Regional Office (Delhi Metro Region I) at Bank of Baroda Building, 12 th Floor, 16, Sansad Marg, New Delhi-110001 and one of its branch situated at Property No. 1488-89, situated at Chandni Chowk, Delhi-110006, who has placed before us documents and papers pertaining to the said subject matter of the present legal notice and has also briefed and instructed us in respect thereof. Based on the perusal/examination of the said documents of our aforementioned client, it is stated:
1. That a Lease Deed dated 21.03.2012, registered as document No. 2657 in the office of Sub Registrar-l, Delhi w.r.t Property No. 1488-
89, situated at Chandni Chowk, Delhi-110006 (hereinafter referred to as Demised Premises) was executed between you and our client.
2. That vide aforementioned Lease Deed dated 21.03.2012, the Demised Premises was leased out by you to our client for a period of 15 years with effect from 18-11-2011.
3. That as per Clause No. 2 of the aforementioned Lease Deed dated 21.03.2012, our Client has right to vacate the Demised Premise at any time during the lease period of aforementioned Lease Deed by giving 6 (Six) months notice to you.
4. That in the light of Clause No. 2 of the aforementioned Lease Deed, our Client has decided to vacate the Demised Premises and hence, the remaining lease period shall be six months from the date of receipt of this notice by you.
CS (COMM) No. 524/2024 Page No. 26 of 37
5. That as per Clause No. 4 of the aforementioned Lease Deed, our Client has paid you Interest Free Security deposit of Rs. 16,46,724/- (Rupees Sixteen Lakh Forty Six Thousand Seven Hundred Twenty Four Only) and the said Interest Free Security deposit shall be adjusted towards rent for the next remaining 6 (Six) month period of the lease deed of the Demised Premises.
6. That as per Clause 12 of the said Lease deed, our client have the right to remove at the time of vacating the said Demised Premises, all electrical fittings and fixtures, counter, safe strong room door, safe deposit locker, partition and all other furniture put up by our client at the Demised Premises.
THAT UNDER INSTRUCTIONS FROM OUR CLIENT, I HEREBY GIVE YOU NOTICE THAT IN PURSUANCE OF RIGHT CONTAINED IN CLAUSE NO. 2 OF THE AFOREMENTIONED LEASE DEED DATED 21.03.2012 AND IN THE LIGHT OF THE AFOREMENTIONED FACTS, OUR CLIENT HAS DECIDED TO DETERMINE THE LEASE OF THE DEMISED PREMISES WITH EFFECT FROM 6 (SIX) MONTHS FROM THE DATE OF RECEIPT OF THIS LEGAL NOTICE AND OUR CLIENT SHALL QUIT, VACATE AND DELIVER UP POSSESSION OF THE DEMISED PREMISES TO YOU OR YOUR AUTHORISED AGENT, IF ANY, APPOINTED BY YOU, ON THE SAID DATE.
Note: A copy of the present reply to aforementioned legal notice has been kept in our office as record and for further reference.
Yours' truly Akash Kaushik, Advocate For and on behalf of Sui Generis Legal
20. From a perusal of notice Ex.PW1/D-1 it has proved that written notice to determine the lease qua the suit property, and not verbal notice, as claimed in the plaint and during examination-in-chief of PW1 Sarthak Malakar, was served by the plaintiff upon the defendants whereby it notified that it had decided to determine the lease of the suit property with effect from six months from the date of receipt of legal CS (COMM) No. 524/2024 Page No. 27 of 37 notice dated 24.9.2019. From a perusal of Ex.PW1/D-1 it can also be seen that the plaintiff further notified the defendants that it had paid them interest free security deposit of ₹16,46,724/- and the said interest free security deposit shall be adjusted towards rent for the next remaining six) month period of the lease of the suit property.
21. As already observed, neither of the plaintiff's witnesses remained posted in the branch of the plaintiff which was functioning at the suit property prior to 01.6.2020, and their knowledge about the facts and circumstances of the case is either based on hearsay or the document maintained by the plaintiff. The plaintiff has falsely stated in the plaint and replication, and PW1 Sarthak Malakar has falsely deposed in his affidavit Ex.PW1/A, that the plaintiff served a verbal notice upon the defendants. Further, the plaintiff has not examined the person whom the defendants allegedly represented that they were passing through a severe financial crunch, and through whom they requested the plaintiff not to make adjustment of six month's rent at that stage and assured that the deposit of ₹16,46,724/- shall be refunded by them to the plaintiff at the time of handing over the possession of the suit property. Therefore, it cannot be accepted, as claimed by the plaintiff, that the defendants on any occasion represented that they were passing through a severe financial crunch and requested the plaintiff not to make adjustment of six month's rent at that stage and assured that the deposit of ₹16,46,724/- shall be refunded by them to the plaintiff at the time of handing over the possession of the suit property; and that the plaintiff CS (COMM) No. 524/2024 Page No. 28 of 37 kept on paying the monthly rent to the defendants.
22. In so far as documents Ex.PW1/5 and Ex.PW1/6 are concerned, the contents of Ex.PW1/5 do not show any payment by the plaintiff to the defendants from the month of October 2019 to May 2020. Further, in Ex.PW1/6 it has been shown that in the months of September 2019, October 2019, November 2019, December 2019, January 2020, February 2020, March 2020 and April 2020 (on two occasions) ₹3,73,950.66 per month were transferred to Jagat Talkies, whereas, as per Ex.PW1/4 rent payable during the said period was at the rate of ₹3,43,074.00 per month. No material has been placed before the court as to under what circumstances the rent was enhanced from ₹3,43,074.00 per month to ₹3,73,950.66. If the additional payment of ₹30,876.66 per month was on account of service tax or any other levy, then there should have been some bill or invoice raised by the defendants against the plaintiff, but no such document has been produced.
23. As per section 34 of the Indian Evidence Act, 1872 (Act 1 of 1872), entries in books of account, including those maintained in an electronic form, regularly kept in the course of business, are relevant whenever they referred to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. Further, as per section 4 of the Bankers' Books Evidence Act, 1891 (Act 18 of 1891), subject to the provisions of the last mentioned Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the CS (COMM) No. 524/2024 Page No. 29 of 37 existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise. Thus, from a reading of section 34 of Act 1 of 1872 it can be discerned that although entries in books of account, regularly kept in the course of business, are relevant, but they shall not alone be sufficient evidence to charge the defendants with liability unless some additional material is placed before the court in support of such entries. Section 34 of Act 1 of 1872 read with section 4 of Act 18 of 1891 do not give any preferential treatment to the books of account maintained by a banker, although the entries in such books of account can be proved by production of copies certified as per the provisions of Act 18 of 1891.
24. To prove that even after serving notice Ex.PW1/D-1 upon the defendants, the plaintiff kept on paying the monthly rent to the defendants till vacation of the suit property, the plaintiff could have easily produced or summon the record of the bank account of the defendants in which the money was allegedly transferred by the plaintiff as per the entries made in Ex.PW1/5 and Ex.PW1/6, but it has failed to do so. The plaintiff, without adducing any additional material in evidence, at the strength of Central Bank of India v. Ravindra and others, [2001] S.C.R. Suppl. 323 and copy of judgment dated 31.01.2018 passed by the Hon'ble High Court of Delhi in RFA 299/2015 entitled M/s ICICI Bank Limited v. Kapil Dev Sharma wants this court to believe that CS (COMM) No. 524/2024 Page No. 30 of 37 whatever mentioned in Ex.PW1/5 and Ex.PW1/6 are gospel truth. Unlike Kapil Dev Sharma's case (supra) the present suit is not an action by a bank against its customer who took loan and did not discharge his liability. Further, in Kapil Dev Sharma's case (supra) apart from account statement there was other material before the court to hold the defendant/respondent liable, therefore, the law laid down in Kapil Dev Sharma's case (supra) is not applicable in the case in hand. In so far as the law laid down in Central Bank of India's case (supra) is concerned, the same is not applicable in the present case as the suit is not against a borrower. In the absence of any additional material to support that whatever stated in Ex.PW1/6 is correct, it cannot be accepted and taken as proved that after serving notice Ex.PW1/D-1 the plaintiff kept on paying the rent month-wise to the defendants and the deposit of Rs.16,46,724/- was never adjusted towards the payment of the rent as desired by the plaintiff by its notice Ex.PW1/D1. In these circumstances, the claim of the plaintiff on this count must fail.
25. The second claim of the plaintiff is for payment of ₹68,500/- it had deposited with BSES Yamuna Power Limited at the time of installation of electricity connection (CA No. 150002700). In support of its claim that the defendants are liable to pay the sum of ₹52,500/- deposited by it as cash security and sum of ₹16,000/- deposited by it as service line cum development charges with the electricity company, the plaintiff relies upon the testimonies of PW1 Sarthak Malakar, PW2 Mrs. Monika Gulia and PW3 Deena Nath CS (COMM) No. 524/2024 Page No. 31 of 37 Chandra and copy of electricity bill Mark P-2. From the testimonies of PW1 Sarthak Malakar, PW2 Mrs. Monika Gulia and PW3 Deena Nath Chandra it is evident that when the electricity connection was installed in the name of the plaintiff at the suit property and security and service line cum development charges of ₹68,500/- were deposited with the BSES Yamuna Power Limited neither of them was posted at the branch of the plaintiff nor any of them ever dealt with the transaction regarding installation of the electricity connection. The plaintiff has not called any witness from BSES Yamuna Power Limited to prove as to under what circumstances the security charges and service line cum development charges were deposited. In fact to show that such charges were deposited with BSES Yamuna Power Limited, the plaintiff has not proved any receipt or any other document except copy of bill Mark P-2 which records that a sum of ₹16,000/- was lying deposited with the said electricity company as service line cum development charges and sum of ₹52,500/- was lying deposited as cash security deposit. As per document Mark P-2 the electricity connection was energized on 23.9.2009 and there is no material before the court, except oral testimonies of PW1 Sarthak Malakar, PW2 Mrs. Monika Gulia and PW3 Deena Nath Chandra, which on the point under consideration are not reliable, to show that at the time of installation of connection there was any representation on the part of the defendants that the charges of ₹68,500/- deposited by the plaintiff with the electricity company would be paid by them to the plaintiff at the time of handing over the possession of the suit CS (COMM) No. 524/2024 Page No. 32 of 37 property to the defendants. As per sections 46 and 47 of the Electricity Act, 2003 (Act 36 of 2003) it was the duty of the plaintiff, in whose name the connection was installed, to pay the security and service line cum development charges at the time of installation of the electricity connection. In the absence of any plausible evidence led by the plaintiff to prove that in the year 2009 at the time of installation of the electricity connection or subsequently the defendants represented the plaintiff that ₹68,500/- deposited by the plaintiff with the electricity company would be paid by them to the plaintiff at the time of handing over the possession of the suit property to the defendants, it cannot be held that the defendants are under any obligation to make payment of ₹68,500/- to the plaintiff. The claim of the plaintiff on this count also fails.
26. The third claim of the plaintiff is for recovery of ₹1,62,300/- it had paid to BSES Yamuna Power Limited on 06.8.2021. In this connection, it is admitted by the plaintiff in the plaint that IDFC First Bank Ltd. was to pay the said bill. It is further admitted by the plaintiff's witnesses that after 30.5.2020 electricity through the connection got installed by the plaintiff was not consumed by the defendants, and instead it was IDFC First Bank which came in possession of the suit property after 30.5.2020 and consumed the electricity through CA No. 150002700. During her cross-examination PW2 Mrs. Monika Gulia has deposed that she had personally visited IDFC First Bank and handed over a written letter regarding the electricity charges which was erroneously paid by the plaintiff against CS (COMM) No. 524/2024 Page No. 33 of 37 the meter bill dated 30.7.2021.
27. It is argued by counsel for the plaintiff that after vacation of the leased premises by the plaintiff, an electricity consumption bill dated 30.7.2021 for the period 28.5.2021 to 29.7.2021, a copy of which is Mark P-2, in the sum of ₹1,62,300/- was raised by BSES Yamuna Power Limited against the plaintiff, and although the plaintiff was not under any obligation to pay the said bill as it did not consume the electricity after 30.5.2020, still under mistake it paid the said bill, therefore, the defendants are liable to pay ₹1,62,300/- to the plaintiff; and reliance in this regard is placed on section 70 of the Indian Contract Act, 1872 (Act 9 of 1872) and State of West Bengal v. B.K. Mondal, AIR 1962 SC 779.
28. From the pleadings and the evidence adduced before this court it has emerged that while the plaintiff was in possession of the suit property, it got installed the electricity connection in its name in the year 2009. As per the provisions of Act 36 of 2003 the plaintiff was liable to pay the electricity consumption charges to BSES Yamuna Power Limited. It is admitted position between the parties that the suit property was vacated by the plaintiff on 30.5.2020, but electricity connection was not got disconnected by it, and the said electricity connection remained in the name of the plaintiff even till the year 2021. It is stated in the plaint that the plaintiff did not get the connection disconnected as the defendants told that they will get the connection transferred in the name of new lessee, but there is no material in support of the same. No material has been placed by the plaintiff before this court to show that CS (COMM) No. 524/2024 Page No. 34 of 37 after it handed over the possession of the suit property to the defendants, the defendants consumed the electricity through the electricity connection in the name of the plaintiff. From the testimonies of PW1 Sarthak Malakar, PW2 Mrs. Monika Gulia, PW3 Deena Nath Chandra and DW1 Vijay Narain Seth it has also come on record that after vacation of the leased premises the same was leased out to the IDFC First Bank Ltd., Chandni Chowk Branch and the said bank consumed the electricity through the connection in the name of the plaintiff.
29. As per section 70 of Act 9 of 1872 where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such another person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. In B.K. Mondal's case (supra) although the contract between the government (appellant) and M/s B.K. Mondal and Sons (respondent) was not executed as per the provisions of the Government of India Act, but at the request of the officers of the appellant, and for its benefit, the respondent erected buildings which were enjoyed by the appellant, and therefore, the appellant was held liable to pay to the respondent. In the present case, however, the facts and circumstances are different, for it has been admitted by the plaintiff that IDFC First Bank Ltd. was to pay the electricity bill. The electricity through the connection in the name of the plaintiff has not been proved having been consumed by the defendants. The electricity was, apparently, consumed by IDFC First Bank Ltd. who CS (COMM) No. 524/2024 Page No. 35 of 37 is not a party in the present suit. Since the defendants did not enjoy the benefit of the electricity for their own use and there is nothing in the lease deed Ex.PW1/4 to show that they are under any obligation to pay the electricity charges for the electricity consumed and enjoyed by some other person, therefore, in the considered opinion of the court at the strength of section 70 of Act 9 of 1872 the plaintiff cannot claim the bill amount of ₹1,62,300/- from the defendants. The claim of the plaintiff on this count also fails.
30. As discussed above, in the light of the pleadings and the evidence adduced before this court the plaintiff is not found entitled to recover the sum of ₹16,46,724/- deposited at the time of execution of lease deed Ex.PW1/4. The plaintiff is also not found entitled to recover ₹68,500/- deposited by it with BSES Yamuna Power Limited before energisation of electricity connection in its name. The plaintiff is also not found entitled to recover the bill amount of ₹1,62,300/- paid by it to BSES Yamuna Power Limited on 06.8.2021. Issue No. 2 is decided against the plaintiff and in favour of the defendants. Re: Issue No. 3.
31. Since the claim of the plaintiff for a sum of ₹18,77,524/- against the defendants has failed in entirety, therefore, in view of my findings on issue No. 2 the plaintiff is not found entitled for any interest. Issue No. 3 is decided against the plaintiff and in favour of the defendants.
CS (COMM) No. 524/2024 Page No. 36 of 37 Relief:
32. In view of above discussion and findings on issue Nos. 2 and 3 the suit is dismissed with costs. Decree sheet be prepared accordingly and after compliance file be sent to the records.
Digitally signedPronounced in the open court MANOJ KUMAR
by MANOJ
on the 19th day of March, 2026. KUMAR Date:
2026.03.20
12:46:59 +0530
(MANOJ KUMAR-I)
District Judge (Commercial Court)-05,
Central District: Tis Hazari: Delhi
CS (COMM) No. 524/2024 Page No. 37 of 37