Delhi District Court
Samtel Avionics Ltd. And Anr vs N.S. Rathore Huf on 29 February, 2024
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 - SOUTH
EAST DISTRICT SAKET COURTS, NEW DELHI.
CS (COMM) No. 57/2021
M/s N. S. RATHORE (HUF)
Through its SPA Holder
Mr. Prashant Bhadauria
X-26, Hauz Khas
New Delhi ..... Plaintiff
VERSUS
1. SAMTEL AVIONICS LTD.
Registered office at : 501, 5th Floor
Copla Corporate Suites District Centre,
Jasola, New Delhi -110025
2. SATISH KUMAR KAURA
Chairman-cum-Managing Director
Samtel Avionics Ltd.
B-407, New Friends Colony
New Delhi-110025 .....Defendants
Date of Institution : 23.01.2021
Date when final arguments heard : 05.02.2024
Date of Judgment : 29.02.2024
AND
CS(COMM) No. 418/2021
1. SAMTEL AVIONICS LTD.
Registered office at : 501, 5th Floor
Copla Corporate Suites District Centre,
Jasola, New Delhi -110025
2. SATISH KUMAR KAURA
Chairman-cum-Managing Director
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd.
AND
CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 1 of 54
Samtel Avionics Ltd.
B-407, New Friends Colony
New Delhi-110025 ....Counter Claimants
VERSUS
M/s N. S. RATHORE (HUF)
Through its SPA Holder
Mr. Prashant Bhadauria
X-26, Hauz Khas
New Delhi ....Counter Defendant
Date of Institution : 15.09.2021
Date when final arguments heard : 05.02.2024
Date of Judgment : 29.02.2024
JUDGMENT
1. Vide this common judgment, I shall decide the abovementioned suit CS(Comm) No. 57/2021 filed by the plaintiff M/s N.S. Rathore (HUF) and the suit CS (Comm) No. 418/2021 filed by the counter claimant M/s Samtel Avionics Ltd. & Anr.
IN CS (COMM) 57/2021
2. Brief facts of the case are that the plaintiff is the absolute owner and landlord of the tenanted premises bearing no. 301, 3rd Floor of property situated at J.K. Apartment, Plot No. 2, Masjid Moth, New Delhi-110048. The defendant no. 1 is a registered company and defendant no. 2 is the Chairman-cum- Managing Director of defendant no. 1. The defendant no. 1 is the tenant of the aforesaid property vide lease deed dt. 18.07.2019. The erstwhile owner of the said property had sold the said CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 2 of 54 property to the plaintiff on 09.12.2019. At the time of transfer of said property, defendant no. 1 was a pre-existing tenant under the said lease deed dt. 18.07.2019.
3. As per Clause 1 of the lease deed, the rent of the premises is Rs. 5 Lacs per month payable in advance on or before the 7th day of each month. The defendant no. 1 was also liable to pay electricity charges, maintenance charges for common maintenance service provided by the maintenance society as per the bills received by the defendant.
4. As per ledger account of defendant no. 1 maintained by the maintenance company J.K. Consultancy & Services Pvt. Ltd. which was provided to the plaintiff on 06.01.2021 shows an outstanding amount of Rs. 5,93,655/-. The defendants have been in possession of the property all throughout and have been using the same for its business purposes which can also be verified from the fact that the defendant no. 1 has made two payments of Rs. 53,205/- on 02.09.2020 and Rs. One Lac on 30.11.2020.
5. The defendants are irregular in making the payments of monthly rental from since beginning and according to the bank statement of plaintiff, the defendant has paid the following amounts :-
DATE AMOUNT PAID (RUPEES)
24.01.2020 4,00,000/-
27.01.2020 1,40,000/-
20.03.2020 5,40,000/-
01.07.2020 5,40,000/-
11.08.2020 10,80,000/-
TOTAL 27,00,000/-
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd.
AND
CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 3 of 54
This amount more than Rs 27 Lacs is the rent for 5 months which were paid irregularly by the defendant as the plaintiff was lenient due to corona virus situation. The plaintiff accepted this amount towards payment for the month of January to May, 2020. The total outstanding amount due from the defendant to the plaintiff towards monthly rent and GST from the month June, 2020 to January, 2021 along with outstanding towards maintenance and electricity is as follows :
Particulars Amount (Rs.) Arrears of rent from June, 2020 to January, 2021 47,20,000/-
(Rs. 5 Lacs per month as rent + 18% GST, i.e. Rs. 90,000/- per month) Electricty and Maintenance charges till 5,93,655/- 06.10.2021 (Accordng to the ledger account provided by J.K. Consultancy & Services Pvt.
Ltd.)
TOTAL 53,13,655/-
6. It is also pleaded that in case the court holds that the defendants can vacate the premises before completion of lock-in period then the defendants are liable to pay the entire amount for the lock-in period till 30.06.2022 to the plaintiff.
7. The defendants had illegally issued a notice dt. 29.08.2020 through whatsapp stating that since the plaintiff had refused to waive the rent during lockdown period, the defendants are vacating the premises on 30.08.2020. In the said notice, it is wrongly stated that the plaintiff had asked the defendants to vacate the premises. It was not commercially viable for the plaintiff to give a waiver of rent to the defendant and also because the property is being used by the defendant, therefore the CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 4 of 54 waiver of rent was refused. The notice/ letter dt. 29.08.2020 is thus against the terms of the registered lease deed. The defendant in the said notice admitted that the payment towards rent had already been made till 31.03.2020 along with an additional amount of Rs. 10 Lacs thereafter. As per the lock-in period, if the lessee decide to vacate the property, he is required to pay the rent for the remaining lock-in period plus two month rent equal to the notice period.
8. In reply to notice dt. 29.08.2020, the plaintiff sent a letter dt. 31.08.2020 where the plaintiff denied the contents of notice dt. 29.08.2020, and even after the issuance of letter dt. 31.08.2020, the defendants failed to pay the outstanding dues. The plaintiff thereafter also sent a legal notice dt. 19.12.2020 demanding the outstanding sum, however, as there was no response to the legal notice by the defendants, the plaintiff sent his representative to check the property in the first week of January and found that the property was locked and there was a foul smell coming from inside. It seems that the defendant abandoned it. The defendants had paid the security deposit of Rs. 20 Lacs which is to be refunded at the time of termination of lease deed after clearing bills of electricity and water, if any. However, the defendants have stopped making the payment towards the monthly rent plus taxes, maintenance charges and electricity charges. The plaintiff forced to file the suit for Rs. 53,13,655/- and further entitled to interest @ 12% per annum over outstanding payment.
9. In written statement, it is stated that defendant no. 1 vacated the suit property on 31.08.2020 and not in possession of CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 5 of 54 the suit property since then. The defendant no. 1 is prevented access to the suit property since 24.03.2020 because of nationwide lockdown by the Government of India as per circulars/ notifications issued by the Ministry of Home Affairs and National Disaster Management Authority had agreed to waive off the monthly rent for the suit property for all such period. The defendant no. 1 is entitled to refund of the additional amount paid together with interest free security deposit of Rs. 20 Lacs. This amount was payable by the plaintiff simultaneously when the property was vacated by defendant no. 1 on 31.08.2020. The plaintiff failed to refund the security amount, therefore, the defendant no. 1 is also filing a counter claim for recovery of Rs. 28,79,695/-. The details are as under :-
S.No. PARTICULARS AMOUNT (INR)
1. Net rent payable by the defendant no. 1 from 16,20,000/-
January 2020 (Though the complete
lockdown was imposed on 23.03.2020) @
Rs. 5,40,000/- per month
2. Outstanding maintenance charges as per the 2,00,305/60p
J.K. Consultancy and Services Pvt. Ltd.
TOTAL (A) 18,20,305/-
3. Amount paid by defendant no. 1 from 27,00,000/-
January, 2020 till August, 2020
4. Advance paid towards interest free security 20,00,000/-
deposit
TOTAL (B) 47,00,000/-
5. Amount to be refunded to defendant no. 1 by 47,00,000 -
plaintiff = (B-A) 18,20,305
= 28,79,695/-
The defendant no. 2 is also not a necessary party.
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 6 of 54
10. In replication, the plaintiff reiterated its stand.
11. Vide order dt. 18.11.2021, the application U/o 1 rule 10 CPC on behalf of defendant no. 2 for deletion was allowed and defendant no. 2 is deleted from the array of the parties.
12. Vide order dt. 17.01.2023, following issues were framed : -
(1) Whether the plaintiff is entitled for arrears of monthly rent alongwith GST, maintenance and electricity charges under the Registered lease deed alongwith pendentelite and future interest, if yes, then at what rate? OPP (2) Whether the notice / letter dt. 29.08.2020 issued by the defendant no. 1 as illegal and void?
OPP (3) Whether the lease Deed dt. 18.07.2019 could not be terminated because of lock in period of 36 months in the lease deed? OPP (4) Whether the plaint is liable to be rejected on account of preliminary objections raised by the defendant? OPD (5) Whether the order issues by Govt. of NCT of Delhi, Govt of India, Ministry of Home Affairs, National Disaster Management Authority imposing lockdown, declaring containment zones and prohibiting activities to prevent wide spread of Covid19 has resulted in frustration of the lease deed dt. 18.07.2019 and triggered the principles of force majeure enshrined in Section 56 of the Indian Contract Act, 1872? OPD (6) Whether the defendant is entitled for refund as claimed in the counterclaim? OPD (7) Relief.
IN COUNTER CLAIM CS(COMM) 418/2021 CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 7 of 54
13. The counter claimant/ defendant has submitted that the present property was taken on lease for a period of 5 years started from 01.07.2019 to 30.06.2024. The initial period of 3 years is lock-in period and the monthly rent for the said period is Rs. 5 Lac per month + GST, less TDS which net works out to Rs. 5,40,000/-. The said property is used for running the office premises and counter claimant paid the month rent regularly, however, the ownership of the said property changed hands in December, 2019. It is stated to be purchased by the counter defendant and the counter claimant was informed vide letter of assignment dt. 31.12.20219 in this regard. The counter claimant thereafter paying monthly rent to the counter defendant, however, on 22.03.2020 'Janta Curfew' was imposed by Government and complete lockdown announced in Delhi from 6.00 AM on 23.03.2020 till 31.03.2020. The lockdown extended till 03.05.2020 and thereafter till 16.05.2020 then again upto 31.05.2020 and thereafter upto extended in containment zone upto 30.06.2020. The Delhi Disaster Management Authority vide order dt. 01.07.2020 extended lockdown in containment zone upto 31.07.2020.
14. The counter claimant was prevented from accessing the suit property till August, 2020. Vide email dt. 27.04.2020 the counter claimant sought waiver of payment of monthly rent due to lockdown and in principle it was agreed by the counter defendant that complete waiver of monthly rent will be extended for all those months. The counter claimant though irregularly paid rent to the counter defendant in the present counter claim. The counter claimant, however, requested the counter defendant CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 8 of 54 on several occasions to waive off the monthly rent for all such period/ months in which he had no access to suit property. The counter defendant in counter claim in principle agreed to grant waiver such to the counter claimant paying 2 months rent as advance which was agreed to be adjusted in future rent. The counter claimant though under financial distress in good faith and to maintain the cordial relationship with the counter defendant paid a sum of Rs. 10,80,000/- in the month of August, 2020 with a clear undertstanding that the counter claimant is liable to pay monthly rent upto March, 2020 and period thereafter is free period as the counter claimant had no access to the suit property. The amount paid in the month of August will be adjusted against future rent when the counter claimant has access to the suit property. The management of counter claimant discussed the matter with the defendant on or before 12 th to 14th August, 2020 and took an informed decision of not to continue with the lease deed and vacate the suit property. This was in principle agreed in the meeting, and an intimation was given to the counter defendant vide letter dt. 29.08.2020 with request to refund the security deposit and the advance amount as the counter claimant will be vacate the suit property by 31.08.2020. However, the counter defendant took a complete somersault interalia claiming a false and baseless amount of Rs. 1,38,47,583/-.
15. On 29.08.2020, the counter claimant notified the counter defendant that they would be vacating the suit property on 31.08.2020. An email to this effect was issued. The counter claimant vacated the suit property on 31.08.2020 and the keys of CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 9 of 54 the premises was sent through courier on 07.09.2020 which was successfully delivered. The counter claimant vide letter dt. 09.09.2020 confirmed that the keys of the suit property has been delivered, therefore, the counter claimant have no liability towards the maintenance and upkeep of the suit property.
16. The counter claimant is filing the present counter claim for recovery of the amount which is as follows :
S.No. PARTICULARS AMOUNT(INR)
1. Net rent payable by defendant no. 1 from January 16,20,000/-
2020 to March 2020 (Though the complete lockdown was imposed on 23.03.2020) @ Rs.
5,40,000/- per month
2. Outstanding maintenance charges as per J.K. 2,00,305/60p Consultancy and Services Pvt. Ltd.
TOTAL (A) 18,20,305/-
3. Amount paid by defendant no. 1 from January 27,00,000/-
2020 till August 2020
4. Advance towards interest free security deposit 20,00,000/-
TOTAL (B) 47,00,000/-
5. Amount to be refunded to defendant no. 1 by 47,00,000 -
plaintiff = (B-A) 18,20,305
28,79,695/-
17. In written statement, the counter defendant stated that the counter claimant illegally issued the notice dt. 29.08.2020 wherein he wrongly stated that the counter claimant/ plaintiff asked him to vacate the premises. The said notice was also against the terms of the lease deed but it was also admitted in the notice that payment towards rent had only been made till 31.03.2020 along with an additional amount of Rs. 10 Lacs only, therefore, defendant no. 1 had failed to pay outstanding rent till CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 10 of 54 date. The defendant no. 1 is in possession of the suit property all throughout and using the same for business purposes which could be verified from the fact that defendant no. 1 has made two payments of Rs. 53,205/- on 02.09.2020 and Rs. One Lac on 30.11.2020 to the J.K. Consultancy and Services Pvt. Ltd. for maintenance and electricity. The lease deed could not be determined during lock-in period, therefore, if the counter claimant vacated the property within lock-in period then he will be liable to pay for the remaining lock-in period plus two months rent equal to the notice period. The defendant denied the avernments of the counter claim.
18. In replication, the counter claimant reiterated its stand.
19. On completion of pleadings in counter claim, following issues were framed vide order dt. 17.01.2023 :-
(1) Whether the plaintiff is entitled for arrears of monthly rent alongwith GST, maintenance and electricity charges under the Registered lease deed alongwith pendentelite and future interest, if yes, then at what rate? OPCD (2) Whether the notice / letter dt. 29.08.2020 issued by the defendant no. 1 as illegal and void? OPCD (3) Whether the lease Deed dt. 18.07.2019 could not be terminated because of lock in period of 36 months in the lease deed? OPCD (4) Whether the plaint is liable to be rejected on account of preliminary objections raised by the defendant? OPCC (5) Whether the order issues by Govt. of NCT of Delhi, Govt of India, Ministry of Home Affairs, National Disaster Management Authority imposing lockdown, declaring containment CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd.
AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 11 of 54 zones and prohibiting activities to prevent wide spread of Covid19 has resulted in frustration of the lease deed dt. 18.07.2019 and triggered the principles of force majeure enshrined in Section 56 of the Indian Contract Act, 1872? OPCC (6) Whether the defendant is entitled for refund as claimed in the counterclaim? OPCC (7) Relief.
20. Vide order dt. 03.02.2023, the suit as well as counter claim were consolidated for the purpose of evidence. BRIEF SUMMARY OF EVIDENCE :
21. During evidence, the plaintiff examined Prashant Bhadauria, SPA himself as PW1 and defendant examined DW1 Rajesh Kumar Bhalla and DW2 Harender Kumar, Executive legal of DTDC.
22. PW1 tendered his affidavit of evidence as Ex.PW1/A. In cross-examination, PW1 stated that he has not filed the invoices, volunteered J.K. Consultancy and Services raised the invoices and gave to the tenants. The ledger was given by J.K. Consultancy and Services showing the outstanding amount of Rs. 5,93,655/-. He stated that he had not paid this amount and J.K. Consultancy and Services telephonically make reminders for payment. He further stated that he did not raise objections regarding delayed payments in writing, however, informed telephonically to Mr. Rajesh Bhalla. He stated that he was communicating Rajesh Bhalla from January 2020 on the basis of SPA, however, also stated that he was not holding SPA during that time. He also stated that there is no document regarding lenient view because it was done telephonically. He CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 12 of 54 also stated that he cannot show any written document that the representative went to check the property in January 2020. He denied suggestion that he got a peaceful possession of the suit property and keys were delivered by post in September, 2020 since he did not come to collect the keys on 30.08.2020 despite notice. He also stated that he did not file suit for eviction.
23. DW1 Rajesh Kumar Bhalla in cross-examination denied suggestion that he used to have whatsapp conversation with Mr. Prashant Bhaduria with respect to the rent. He stated that it is correct that on 11.06.2020 he messaged through whatsapp to Prashant Bhaduria that the defendant company was waiting for funds from its customers, volunteered he received a call from Prashant Bhaduria and his father with regard to several discussions with them on the waiver of rent on account of Covid-
19. He also stated that plaintiff denied granting the waiver of rent during Covid-19 period. He also stated that it is correct that he received monthly invoices of M/s J.K. Consultancy and Services with respect to maintenance of the premises. They gave the notice to J.K. Consultancy and Services that they are vacating the premises on 01.09.2020 and would be paying balance later on and the last payment was made on November, 2020. He did not inform about the delaying payment to J.K. Consultancy and Services as not required under lease deed. The rented premises was the registered office of the defendant company which was changed from 01.09.2020 to Nehru Place and informed the change of address to the Ministry of Corporate Affairs which was filed online on 22.09.2020.
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 13 of 54
24. DW2 Harender Kumar from DTDC exhibited the certificate of delivery dt. 27.08.2020 certifying that OPD and DRS are kept for 90 days.
MATERIAL EXHIBITS :
Ex.PW1/1 is the special power of attorney; Ex.PW1/2 is the registered lease deed dt. 18.07.2019; Mark A is the letter of allotment/ assignment dt. 31.12.2019; Ex.PW1/3 (Colly) are the rent invoices for the month of June, 2020 to January, 2021; Mark B is the ledger of maintenance maintained by J.K. Consultancy and Services; Ex.PW1/4 is the bank account statement of the plaintiff; Mark D is the letter notice dt.
29.08.2020; Ex.PW1/5 is the reply dt. 31.08.2020 to the letter dt. 29.08.2020; Mark E is the legal notice dt. 19.12.2020 for recovery of arrears of rent.
Ex DW1/1 is the Certified true copy of Resolution dated 28.05.2019; Ex DW1/2 is the Order of Govt. of NCT dt. 22.03.2020; Ex DW1/3 is the order of Ministry of MHA dated 24.03.2020; Ex DW1/4 is the order of Ministry of MHA dated 14.04.2020; Ex DW1/5 is the order of NDMA dated 14.04.2020; Ex DW1/6 is the E-mail dated 27.04.2020; Ex DW1/7 is the order of MHA dated 01.05.2020; Ex DW1/8 is the order of NDMA dated 17.05.2020; Ex DW1/9 is the order of MHA dated 30.05.2020; Ex DW1/10 is the order of MHA dated 29.06.2020; Ex DW1/11 is the order of MHA dated 29.07.2020; Ex DW1/12 is the E-mail dated 29.08.2020; Ex DW1/13 is the E-mail dated 31.08.2020; Ex DW1/14 is the E-mail dated 31.08.2020; Ex DW1/15 is now de-exhibited and marked as Mark A is the Letter dated 05.09.2020; Ex DW1/16 is now de-exhibited and marked as Mark B (Colly) is the Courier receipt along with proof of delivery;
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 14 of 54 Ex DW1/17 is the E-mail dated 09.09.2020; Mark C is the letter dated 09.09.2020; Ex.DW1/18 is the E-mail dated 06.10.2020; Ex.DW1/19 is the certificate U/s 65-B of Indian Evidence Act dated 25.08.2021.
SUBMISSIONS OF THE COUNSELS:
25. Ld. Counsel for plaintiff submitted that the defendant has been in possession of the plaintiff throughout and using the same for business premises and never handed over the keys of the suit property and this fact is substantiated as the defendant made two payments of Rs. 53,205/- on 02.09.2020 and Rs. One lacs on 30.11.2020 to J.K. Consultancy and Services for maintenance and electricity and DW2 could not prove that the keys were delivered to the plaintiff. The defendant was irregular in making the payment and total outstanding amount towards monthly rent and GST from June, 2020 to July, 2021 i.e. till the date of possession taken by the plaintiff is pending. Moreover, the maintenance charges of Rs. 5,93,655/- is recoverable towards electricity and maintenance charges till 06.10.2021. The defendant illegally issued the notice dt. 29.08.2020 late in the night through whatsapp that since the plaintiff had refused to waive the rent during Government lockdown period, the defendant is vacating the property on 30.08.2020. The legal notice dt. 29.08.2020 wrongly stated that the plaintiff had asked the defendant to vacate the premises. The plaintiff never asked the defendant to vacate the premises. The defendant is liable to pay rent till the end of lock-in period. It is not commercial viable for the defendant to waive off the rent. The waiver of the rent was refused because the property was being used by the CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd.
AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 15 of 54 defendant/ counter claimant. The notice dt. 29.08.2020 was also against the terms of lease deed. In the said notice, the defendant admitted that the payment of rent had been made till 31.03.2020 along with additional amount of Rs. One Lac (10 Lacs), therefore, the defendant has failed to pay the outstanding rent till July, 2021. In reply to notice dt. 29.08.2020, the plaintiff replied through letter dt. 31.08.2020 thereby denying the contents of the notice being false and frivolous. The plaintiff sent the legal notice dt. 19.12.2020 claiming outstanding sum, however, no reply sent by the defendant therefore plaintiff sent his representative who found the property was locked and foul smell coming and finally the plaintiff took the possession of the said property in August, 2021 by getting the lock removed. The defendant is liable to make the payment of rent till August, 2021.
Ld. Counsel for plaintiff submitted that lease deed does not include Covid-19 as a force majeur clause and there was no frustration of contract or impossibility of performance. (Relied upon Energy Watchdog Vs. CERC and Others, (2017)14 SCC 80, Ramanand & Ors. Vs. Dr. Girish Soni & Anr. in RC. REV. No. 447/2017 dt. 21.05.2020, DHC). The defendant is also not entitled for refund of security in terms of lease deed. The suit also cannot be dismissed U/s 12 A of the Commercial Courts Act as the plaintiff had filed an application U/s 151 CPC for seeking urgent relief to inspect the premises and repair/ paint the premises since the premises was in possession of defendant. The defendant cannot be permitted to terminate the lease deed when there is a lock-in period. (Relied Upon M/s Satya Narain Sharma (HUF) Vs. M/s Ashwani Sarees Pvt. Ltd., ILR 2009 IV Delhi 601) CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 16 of 54
26. Ld. Counsel for defendant submitted that as per the case of the plaintiff, the defendant defaulted in making the payment of maintenance charges as on 06.01.2021. Further, irregular in making the payment of rent w.e.f. 24.01.2020 to 11.08.2020 and only paid a sum of Rs. 27,00,000/- and there is an outstanding payment of arrears of rent from June, 2020 to January, 2021 + 18% GST i.e. total amount of Rs. 47,20,000/- and Rs. 5,93,655/- towards maintenance charges till 06.01.2021, however, the plaintiff also took the plea that defendant is liable to make the payment for the lock-in period till 30.06.2022 but the amount cannot be determined since the legality of letter dt. 29.08.2020 (20.08.2020) is still pending.
Ld. Counsel submitted that the lease was terminated vide notice dt. 29.08.2020 and the premises were vacated on 31.08.2020. The defendant relied upon the orders/ circulars/ notifications which prevented the access to the lease premises w.e.f. 24.03.2020 till the time lease was terminated. The defendant invoked Clause 13 to terminate the lease, therefore requested for refund of security deposit and additional payment of Rs. 10 Lacs. Ld. Counsel submitted that till the time the defendant has no access to use the tenanted premises. He is relieved the office obligation to pay the lease amount and therefore filed the counter claim of Rs. 28,79,695/-. Ld. Counsel submitted that Hon'ble Delhi High Court in Sarwjeet Singh and Anr. Vs. Asian Hotels (North) Limited" CS (Comm) 346/2023 dt. 19.07.2022 held that it is no longer rest integra that the cumulative effect of the Government Orders/ Notifications and Circulars preventing access of the defendant to the leased CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 17 of 54 premises results in frustration of contract between the parties; triggers the force majeure condition stipulated under section 13 of the Lease deed.
The defendant was prevented access to the premises from 24.03.2020 till 31.08.2020 when the lease property is deemed to have been vacated, however, he was prevented access due to Covid-19. The symbolic possession was given on 31.08.2020 and constructive possession on 07.09.2020 when the keys of premises were successfully delivered. Ld. Counsel submitted that whether the defendant is entitled to waive off rent for the period when the defendant had no access to lease premises and lease is rendered void U/s 108(e) of Transfer of Property Act. (Relied upon R. Narayanan Vs. Government of Tamil Nadu, WP(MD) No. 19596/2020) Ld. Counsel submitted that the maintenance charges as Mark B is Rs. 2,09,469/32p. The entire maintenance charges are paid, however, the defendant sought the adjustment of Rs. 2,00,305/60p. The defendant after adjustment is entitled to a sum of Rs. 28,79,695/- along with pendente lite and future interest.
The suit is not filed by legal entity and there is no verification clause in the plaint. Furthermore, the pleadings have not been verified and SPA is not authorized to verify the pleadings. The plaintiff did not step into the witness box and SPA has no authority to depose on behalf of the plaintiff. PW1 in cross-examination stated that he had no personal knowledge about the facts of the case and also not present when the affidavit of evidence Ex.PW1/A was drawn. This suit is not for possession and the plaintiff wishes to retain the possession despite non-
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 18 of 54 payment of rent. The plaintiff also not pressed the application U/o 39 Rule 1 & 2 CPC. The plaintiff has not approached this court with clean hands and made deliberate attempt to mislead the court. (Relied upon Dalip Singh Vs. State of U.P. and others, in Civil Appeal No. 5239/ 2002.
27. Both the counsels also filed written submissions. Ld. Counsel for defendant/ counter claimant also filed the calculation tables on 07.02.2024.
28. Arguments heard. Record perused.
29. My issue wise findings are as under :
Issue nos. 1, 2, 3 & 5 in suit CS(Comm) 57/2021 :
(1) Whether the plaintiff is entitled for arrears of monthly rent alongwith GST, maintenance and electricity charges under the Registered lease deed alongwith pendentelite and future interest, if yes, then at what rate? OPP (2) Whether the notice / letter dt. 29.08.2020 issued by the defendant no. 1 as illegal and void?
OPP (3) Whether the lease Deed dt. 18.07.2019 could not be terminated because of lock in period of 36 months in the lease deed? OPP (5) Whether the order issues by Govt. of NCT of Delhi, Govt of India, Ministry of Home Affairs, National Disaster Management Authority imposing lockdown, declaring containment zones and prohibiting activities to prevent wide spread of Covid19 has resulted in frustration of the lease deed dt. 18.07.2019 and triggered the principles of force majeure enshrined in Section 56 of the Indian Contract Act, 1872? OPD Issue Nos. 1, 2, 3 & 5 in counter claim CS(Comm) 418/21 :
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 19 of 54 (1) Whether the plaintiff is entitled for arrears of monthly rent alongwith GST, maintenance and electricity charges under the Registered lease deed alongwith pendentelite and future interest, if yes, then at what rate? OPCD (2) Whether the notice / letter dt. 29.08.2020 issued by the defendant no. 1 as illegal and void? OPCD (3) Whether the lease Deed dt. 18.07.2019 could not be terminated because of lock in period of 36 months in the lease deed? OPCD (4) Whether the plaint is liable to be rejected on account of preliminary objections raised by the defendant? OPCC (5) Whether the order issues by Govt. of NCT of Delhi, Govt of India, Ministry of Home Affairs, National Disaster Management Authority imposing lockdown, declaring containment zones and prohibiting activities to prevent wide spread of Covid19 has resulted in frustration of the lease deed dt. 18.07.2019 and triggered the principles of force majeure enshrined in Section 56 of the Indian Contract Act, 1872? OPCC There is no dispute between the parties regarding the registered lease deed dt. 18.07.2019, letter of attornment/ assignment dt. 31.12.2019, payments made by the defendant to the plaintiff during his stay and the liability of the tenant towards the management agencies.
30. PW1 in his affidavit of evidence stated that the plaintiff has paid a total sum of Rs. 27,00,000/- towards rent irregularly, and he deducted the said rent towards the rent from January to May, 2020, however, claiming the rent from June, 2020 to January, 2021 for a total sum of Rs. 47,20,000/- along with the electricity and maintenance charges till 06.01.2021 i.e. Rs. 5,93,655/-.
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 20 of 54
31. However, DW1 Rajesh Kumar Bhalla, Director of defendant in his affidavit of evidence stated that the suit premises were taken on lease for the office purpose and the said property was used as a registered office, however, due to the lockdown from 22.03.2020 till 31.08.2020, he unable to use the said premises for the office purposes therefore, sent an email dt. 27.04.2020 (Ex.DW1/6) that because of the nation wide lockdown, the defendant unable to use the office premises, thus, sought waiver of the payment of the monthly rent for the period of lockdown. The said emails is not at all discredited in the cross- examination of DW1. This witness in cross-examination also stated that they have shifted the office and the registered address is changed from 01.09.2020 to Nehru Place, New Delhi and the documents in this regard was also filed online in the Ministry of Corporate Affairs on 22.09.2020. The defendant categorically vide email dt. 27.04.2020 (Ex.DW1/6) informed the plaintiff for waiver of rent during lockdown period, however, there is no response from the plaintiff's side over this email.
32. It is the case of the plaintiff as well as the defendant that the defendant sent an email dt. 29.08.2020 (Ex.DW1/12 as well as Mark B in the testimony of PW1) with regard to the fact that the defendant unable to use the tenanted premises to carry on their business because of lockdown and vacating the premises on 31.08.2020, and the possession can be taken anytime from 10.00 AM to 5.00 PM on 31.08.2020.
33. It is pertinent to peruse the said letter/ notice dt. 29.08.2020. In the said notice dt. 29.08.2020, the defendant requested handing over the peaceful possession to the plaintiff CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 21 of 54 due to the lockdown they unable to carry out the business or use the tenanted premises, and also requested vide email dt. 27.04.2020 for waiver of rental during lockdown and to adhere to force majeure clause of the contract. It is also stated in the said letter dt. 29.08.2020 that they had clearly shared their inability to pay rent during the lockdown period and decided to close down the captioned office in case the waiver of rent and reduction in future rental is not granted. Admittedly, no waiver of rent is granted. Vide email dt. 07.08.2020 and on whatsapp again requested for waiver of rent and there is decision communicated that the fresh deal of rental is not permissible and asked to vacate on or before 31.08.2020, therefore, vacating the premises on 31.08.2020. The relevant paragraphs of letter dt. 29.08.2020 are reproduced as under .......
SUB : HANDING OVER VACANT POSSESSION OF TENANTED PORTION VIZ. FULLY FURNISHED OFFICE BEARING NO. 301, THIRD FLOOR OF PROPERTY SITUATED AT J, K, APARTMENT, PLOT NO. 2, BLOCK EFGH, LSC, MASJID MOTH, NEW DELHI-110048, HAVING CARPET AREA OF 3457 SQ. FT.
Attn: Mr. N.S. Rathore (Karta) Sir, You are well aware that as per the pandemic situation since, March, 2020, there has been a complete lockdown in our country, with complete Government controls and we have not been able to carry on any business or use the captioned tenanted premises since the lockdown We through mails, verbal communications and in numerous personal meetings have been requesting you the decision on:
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 22 of 54 The rental waiver for the period of lockdown Rental deal for the next few coming months, as market sentiments government restrictions have made business difficult.
The request for waiver of rent during the period of Lockdown was made to you as early as April, 2020 vide our email dated 27.04.2020, a copy of the email is attached. Thereafter, number of requests, were made to you for waiver of rental during lockdown period and to adhere to the Force Majure clause, in reference to our contract. We had then clearly shared our inability to pay during the lockdown and had decided to close down the captioned office in case the waiver of rent and reduction in future rentals is not granted by you. On this, you assured a mid-way which will financially (rental) not burden us adversely. We always had the assurance from you that the decision will be taken as per market norms and we should be relaxed and focus on continuity of business. It is common knowledge that in the market majority of tenants have received waiver in rental and fresh rental deals from their respective landlords to let tenants stay afloat in these difficult times.
While there have been multiple conversations with Sh. Ashok Bahadauria and Shri Prashant Bahadauria, the decision was always postponed from your side citing that all the members of the HUF have to take a decision and that it would be shared soon. Despite multiple push the decision has been postponed by you.
In last ditch attempt to arrive at a mutually convenient solution and to prove our positive intent of not jeopardizing the arrangement, we went extra miles despite very difficult financial conditions and released Rs. 10,00,000/- (Rs. Ten lakhs only) (subject to TDS)-+GST towards future rentals on your specific assurance that the rentals for entire lockdown will be waived and future rentals will be reduced considering the market position.
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 23 of 54 Vide, our email dated 7th August, 2020 and also on whatsapp we again requested you to give us waiver and reduction in rentals as discussed and assured, a copy of email is attached. You assured that the proposal put forth by us will be duly considered and a decision arrived at by 10" August, 2020.
Now, the decision has been communicated to us that fresh deal of rental is not possible and have been asked to vacate, the tenanted premises, on or before the 31st of August, 2020, citing it as our last day. Accordingly, we have already vacated the captioned tenanted premises.
You are requested to receive the keys of the captioned tenanted premises and thus receive vacant and peaceful possession of the tenanted premises on 31st August, 2020 at any time (between 10:00 am. to 5:00 pm.) as per your convenience. You can send some authorized person to receive the keys. In case you want the keys to be handed over at your residence, please inform us. We shall be sending our representative at your place to hand over the keys, and you can acknowledge receipt of possession to him.
We have already paid the rent of the captioned tenanted premises till 3 1.03.2020 and there has been an additional payment of Rs. 10,00,000/- (Rs. Ten lakhs only) thereafter on 30.06.2020. As per your assurance there was waiver of rent for the period of lockdown. We have already cleared our dues towards electricity, water and maintenance charges of the tenanted premises. Hence, there is no outstanding towards rental or any other account whatsoever payable by us to you, in respect of the captioned tenanted premises.
The plaintiff replied the said letter dt. 28.08.2020 through reply dt. 31.08.2020 (Ex.PW1/5) in which the plaintiff raised the plea that the defendant was defaulter even prior to Covid period and also defaulted on payments of maintenance CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 24 of 54 charges as well as electricity charges and they are at shock that defendant issued letter dt. 29.08.2020 late in the night that they are vacating the property on 31.08.2020. The plaintiff also denied the avernments of reduction in rent and also stated the demands of waiver of rent were completely unfair and commercially not viable. The security deposit cannot be refunded in terms of lease agreement and the plaintiff also wrote that in case they are vacating the premises on 31.08.2020 then they have to pay the total rent upto the lock-in period along with other charges upto Rs. 1,38,47,583/-.
34. It is pertinent to note that the defendant on 31.08.2020 issued the emails at 1.54 PM and 2.25 PM (Ex.DW1/13 and Ex.DW1/14) informing that the defendant has vacated the tenanted premises and plaintiff may depute someone for spot verification of the premises and fixtures and furniture and to take possession of the same. These emails were not discredited in the cross-examination nor there is any mention of these emails in the reply dt. 31.08.2020 (Ex.PW1/5) or in the subsequent notice dt. 19.12.2020 (Mark E) sent by the plaintiff.
35. The defendant vide letter dt. 05.09.2020 (Mark A) communicated that despite the communication nobody come from the plaintiff's side to take the keys and they have already vacated the premises and sending the keys at the registered address and in this regard relied upon the courier receipts (Mark B). There is another letter dt. 09.09.2020 stating therein that they have already sent the keys through courier on 07.09.2020 and vacated the premises and the said letter attached with the email dt. 09.09.2020 (Ex.DW1/17). The said letter and email are not CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd.
AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 25 of 54 discredited in the cross-examination of DW1. The defendant vide email dt. 06.10.2020 (Ex.DW1/18) also wrote that they have already vacated the premises on 31.08.2020 and, therefore, the invoices for the month of September, 2020 was wrongly raised. There is nothing to discredit this email in cross-examination of DW1. Though DW2 Harender Kumar, courier official cannot produce delivery certificate being old record, but upon considering entire communications, it cannot be inferred that keys are not delivered.
36. The defendant through email dt. 27.04.2020 able to prove that due to Nationwide lockdown unable to use the premises and sought waiver of the rent, however, admittedly even as per the version of the plaintiff, no waiver was granted. Thereafter vide email dt. 29.08.2020 (Ex.DW1/12) which is also relied upon by the plaintiff. The defendant clearly stated that they unable to use the tenanted premises for their business and vacating the premises on 31.08.2020. Thereafter the emails and letters (Ex.DW1/13, Ex.DW1/14, Mark A, Mark B, Ex.DW1/17, Mark C, Ex.DW1/18) communicating to have already vacated the premises on 31.08.2020 and sending the keys to the plaintiff.
37. The plaintiff vide notice dt. 19.12.2020 demanded the recovery of the rent from June to December, 2020 and the maintenance charges till 31.10.2020 for a total sum of Rs. 41,99,723/-. It is pertinent to notice that besides the notice dt. 29.08.2020, there is no other correspondence or emails sent by the defendant are referred in this legal notice dt. 19.12.2020. Admittedly, as discussed there are number of communication sent by the defendant after 29.08.2020 clearly communicating CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 26 of 54 that the defendant has vacated the premises on 31.08.2020 and also sent the keys. The issuance of this legal notice without acknowledging the fact that the defendant has already vacated the premises shows that the plaintiff tries to raise the demand of rent after vacation.
38. The plaintiff stated that in the month of January, 2021 one of his person inspected the property and found it abandoned and thereafter broke open the locks, however, the said person is not examined nor there is any evidence for broke opening the locks produced. The plaintiff therefore not able to prove that he came into possession of the said premises in January, 2021 whereas the defendant's version as discussed is found credible on the factum that he had vacated the premises by 31.08.2020. From the evidence on record, mere depositing two payments of Rs. 53,205/- on 02.09.2020 and Rs. One Lacs on 30.11.2020 by the defendant do not in any manner suggests that the defendant is in possession after 31.08.2020.
39. Now, the contention to be appreciated whether the plaintiff is entitled for waiver of rent from 24.03.2020 to 31.08.2020 and in case of no waiver, then the plaintiff is entitled to vacate the premises irrespective of the lock-in period which is to be expired by 30.06.2022.
40. The lease deed dt. 18.07.2019 (Ex.PW1/2) contains the force majeure clause. The said clause no. 13 is reproduced as under :
....."That during the tenure of this lease if the said property remains unused due to force majeure the lessee will either handover the vacant/ symbolic possession of the premises and the security deposit paid by the lessee will CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 27 of 54 be refunded by the lessors without considering any notice period. However, if the lessee continues to hold the said property the lessee shall be liable to pay the rent to the lessors."
This clause categorically shows that if the property remains unused due to force majeure, the lessee will either hand over the symbolic/ vacant possession of the property and the security deposit will be refunded without considering the notice period and if he remains in the said property then he is liable to pay rent. As discussed the defendant has vacated the tenanted premises symbolically on 31.08.2020. However the keys are delivered at a later date. The plaintiff despite information has not appeared to take the physical vacant possession.
As already discussed, the plea of the defendant of vacation on 31.08.2020 found credible and reliable and the version of the plaintiff that they found premises abandoned in January, 2021 is not at all acceptable.
41. The contention to be dealt is that whether the defendant can terminate the lease in terms of Clause 13 of lease agreement as the property remains unused due to force majeure situation because of nationwide lockdown and the performance of the lease deed is also not effective due to post lease event beyond the control of the defendant thus resulted in frustration of lease deed thereby triggered the principle of force majeure as per Section 56 of Contract Act.
42. Hon'ble Delhi High Court in case titled Sarwajeet Singh (supra) after analyzing the number of judgments and judgments referred by plaintiff in present case held that the application of force majeure because of the Government CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 28 of 54 regulations, the notice of termination is not bad. The relevant paras are reproduced as under :
"ANALYSIS AND FINDINGS
35. Heard learned counsel for the parties and perused the record. Having considered the factual scenario of the matter, judicial pronouncements relied upon by the parties, pleadings presented and arguments advanced by the learned counsel for the parties, following issues have been framed for consideration of this Court:
"1. Whether the termination of lease deed dated 4th October 2017 vide letter dated 27th June 2020 is bad in law and not binding on the parties?
2. Whether defendant liable to pay plaintiff the arrears of rent to the tune of Rs. 5,38,75,117/-? "Whether the termination of lease deed dated 4th October 2017 vide letter dated 27th June 2020 is bad in law and not binding on the parties?
36. It is submitted on behalf of the plaintiffs that the termination of Lease Deed between plaintiffs and defendant vide letter containing Notice of Termination dated 27th June 2020 is bad in law and not binding on the parties. It is contended on behalf of the plaintiffs that they never received the copy of the letter of termination and the defendant used an ante-dated and forged letter to prevent the liabilities and obligations arising out of Lease Deed. Per contra, it is submitted on behalf of the defendant that the defendant was prevented from utilizing the leased premises rendering the Lease Deed terminated. It is further submitted that there is a noting on the Notice of Termination dated 27th June 2020 made by the plaintiff that the Notice was read on 9th July 2020 but no acknowledgment was given by the plaintiffs. This writing on the notice, according to the defendant, is an unequivocal admission made by the plaintiffs in respect of the receipt of the said Notice.
37. It would be appropriate to reproduce the relevant portion from the letter dated 27th June 2020 terminating the Sub-Lease Deed with immediate effect as per Clause 15.3 of the Lease Deed. The relevant portion reads to the effect:
We would like to draw your kind attention to Clause 15.2 of the Lease Deed. You are well aware that the CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 29 of 54 undersigned has been prevented from utilizing the leased premises due to the restrictive governmental regulations suspending the operations of hotels and is therefore not responsible for any of its consequences and for liabilities /obligations under the lease deed with effect from 25.03.2020.
The situation and restrictive orders due to which the undersigned has been unable to utilise the leased premises has already exceeded several months and consequent thereto, the Lease Deed stands terminated with immediate effect.
38. The defendant whilst placing reliance on the Force Majeure Clause submitted that the government regulations due to the then prevailing COVID-19 pandemic prevented defendant from accessing the leased premises leading to the termination of the Lease Deed. In turn, the Sub- Lease Deed became impossible to perform and hence, the main purpose of the Lease Deed got frustrated.
39. It is important for this Court to peruse the government regulations imposing lockdown which prevented defendant‟s access to the hotel premises from 25th March 2020 until 21st August 2020. Notification No. 40-3/2020-DM-I(A) passed by the Ministry of Home Affairs dated 24th March 2020 imposing a nation-wide lockdown owing to the COVID-19 specifically directing that the hospitality services would also remain suspended. The relevant portion of the Notification reads as under:
―Whereas in exercise of the powers under section 6(2)
(i) of the Disaster Management Act. 2005, the National Disaster Management Authority (NOMA), has Issued an Order no. 1- 29/2020-PP (Pt.II) dated 24.03.2020 {Copy enclosed) directing the Ministries/ Departments of Government of India, State/Union Territory Governments and State/ Union Territory Authorities to take effective measures so as to prevent the spread of COVID-19 in the country; Whereas under directions of the aforesaid Order of NOMA, and in exercise of the powers, conferred under Section 10(2)(1) of the Disaster Management Act. The undersigned, in his capacity as Chairperson, National Executive Committee, hereby issues guidelines, as per the Annexure, to Ministries/ Departments of Government of India, State/Union Territory Governments and State/ Union Territory Authorities with the directions for their strict implementation. This Order shall remain in force, CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd.
AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 30 of 54 in all parts of the country for a period of 21 days with effect from 25.03.2020.
xxx xxx xxx
7. Hospitality Services to remain suspended Exceptions:
a. Hotels, homestays, lodges and motels, which are accommodating tourists and persons stranded due to lockdown, medical and emergency staff, air and sea crew. b. Establishments used/ earmarked for quarantine facilities.
40. This lockdown was again extended till 14th April, 2020 to curb COVID-19. Relevant extracts are as follows:
―And whereas Delhi Disaster Management Authority (DDMA) has notified lockdown in Territory of NCT of Delhi w.e.f. 25th March, 2020 till midnight of 14th April, 2020 to curb the menace of COVID-19 vide order dated 25.03.2020 along with the guidelines, And whereas, Delhi Disaster Management Authority (DDMA) has issued various subsequent orders/Instructions to authorities concerned of NCT of Delhi to take all required measures to appropriately deal with the situation;
And whereas, Govt. of India has extended the lockdown period all over India, Including the territory of NCT of Delhi, further w.e.f. dated 15.04.2020 to 3 rd May, 2020 to curb the menace of COVID-19."
41. The lockdown was finally relaxed and vide Notification No. F. DDMA/COVID-19/2020/1/292 dated 21st August 2020, the Ministry allowed the opening of the hotels. The relevant extracts are reproduced herein:
―And whereas, in pursuance of Ministry of Home Affairs, Govt. of India Order as well as DO letter dated 29.07.2020, DDMA has issued Order No. 275 dated 31.07.2020 with regard to extension of lockdown in the containment zones and to maintain status quo (except removal of night curfew) in the territory of NCT of Delhi till the mid night of 31.08.2020;
And whereas, Ministry of Home Affairs, Govt. of India, vide Order No. 40- 3/2020-DM-l(A) dated 30.05.2020 annexed with guidelines for Phased Re-opening (Unlock 1) has already permitted to open Hotels & other hospitality services in the area outside the Containment Zones with the observation & compliance of Standard Operating Procedure (SOP) to be CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 31 of 54 prescribed by the Ministry of Health & Family Welfare, Govt. of India. Ministry of Health & Family Welfare, Govt. of India vide OM dated 04.06.2020 has also issued SOP for Hotels & other hospitality services, which is enclosed herewith;
And whereas, the current situation of ongoing pandemic of COVID-19 in Delhi has been reviewed during the meeting of Delhi Disaster Management Authority held, through video conferencing, on August 19, 2020 under the Chairmanship of Hon'ble Lt. Governor, Delhi and it has been decided that the Hotels will be allowed to open in NCT of Delhi in all the areas outside the Containment Zones:
Now, therefore, in exercise of powers conferred under section 22 of the Disaster Management Act, 2005, the undersigned, In his capacity as Chairperson, State Executive Committee, DDMA, Govt. of NCT of Delhi, hereby, In partial modification of DDMA order dated 31.07.2020, directs all authorities concerned that Hotels shall be permitted to operate throughout the NCT of Delhi in all areas, except in containment zones, subject to the strict compliance of Standard Operating Procedure (SOP) issued in this regard by Ministry of Health & Family Welfare, Govt. of India dated 04.06.2020, annexed with this order as well as other directions / instructions / guidelines issued by the Government of India and Government of NCT of Delhi from time to time.
42. From the above circulars, it is clear that the defendant was prevented from accessing the hotel and the premises for a period of 6 months w.e.f. 25th March 2020 until 21st August 2020.
43. It is also important to peruse Clause 15.2 of the Sub-Lease or Second Lease Deed which entitles the defendant to terminate the Lease Deed if prohibited from performing its obligations under the lease for a period of 90 days on account of any restrictive governmental laws or regulations. The Clause states that:
"15.2 Force Majeure - the Said Property or any part thereof is destroyed or damaged due to a Force Majeure event, not caused by wilful act or negligence of the Lessee thereby rendering it impossible/ unsafe/ unfit/ non-feasible to operate out of the Said Property the Lessee may, temporarily vacate the Said Property, as may be required, to enable the Lessor to carry out CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 32 of 54 repairs to restore the Said Property to as good condition as it was· in on the Lease Commencement Date. In such an event, all payments specified under this Deed for the Said Property or portion thereof shall abate till the time they Said Property is repaired and restored to as good condition as it was in at the time of handover of the Said Property for interior/fit-outs. The Lessee shall not be held responsible for any consequences or liabilities under this Deed if it's prevented in performing its obligations under the terms of this Deed by reason of any restrictive governmental laws or regulations, riots, insurrection, war, terrorist action, strike, public demonstrations, rallies, acts of God, etc. Furthermore, if the above situation continues for a period of more than 90 (ninety) calendar days, the Lessee may terminate this Deed by giving a prior written notice of 30 (thirty) days."
44. Since, the primary ground taken by the respondent is of the frustration by Contract due to Force Majeure, this Court shall delve into the doctrine and principles surrounding the same. Force Majeure and doctrine of frustration are embodied in the Indian Contract Act, 1872 (hereinafter referred to as "Contract Act") under Sections 32 and 56. Section 32 of the Contract Act states that:
―32. Enforcement of contracts contingent on an event happening.--Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. -- Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened." If the event becomes impossible, such contracts become void.
45. Section 56 of the Contract Act reads as under:
―56. Agreement to do impossible act.-
An agreement to do an act impossible in itself is void. Contract to do an act afterwards becoming impossible or unlawful.--A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful.-- Where one person has promised to do something which he knew, or, with reasonable diligence, CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 33 of 54 might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non- performance of the promise.
46. Explaining the Force Majeure Clause and the application of the same on contracts, the Ministry of Finance, on 19th February, 2020, issued an Office Memorandum (O.M.) with respect to invocation of the Force Majeure Clause provided in paragraph 9.7.7 of the Manual for Procurement of Goods, 2017. The same is set out below:
―A Force Majeure (FM) means extraordinary events or circumstance beyond human control such as an event described as an act of God (like a natural calamity) or events such as a war, strike, riots, crimes (but not including negligence or wrong-doing, predictable/ seasonal rain and any other events specifically excluded in the clause). An FM clause in the contract frees both parties from contractual liability or obligation when prevented by such events from fulfilling their obligations under the contract. An FM clause does not excuse a party's non-performance entirely, but only suspends it for the duration of the FM. The firm has to give notice of FM as soon as it occurs and it cannot be claimed ex-post facto. There may be a FM situation affecting the purchase organisation only. In such a situation, the purchase organisation is to communicate with the supplier along similar lines as above for further necessary action. If the performance in whole or in part or any obligation under this contract is prevented or delayed by any reason of FM for a period exceeding 90 (Ninety) days, either party may at its option terminate the contract without any financial repercussion on either side.
A doubt has arisen if the disruption of the supply chains due to spread of corona virus in China or any other country will be covered in the Force Majeure Clause (FMC). In this regard it is clarified that it should be considered as a case of natural calamity and FMC may be invoked, wherever considered appropriate, following the due procedure as above.
47. The Hon‟ble Supreme Court in Energy Watchdog v. CERC, (2017) 14 SCC 80 has explained that if a contract contains the Force Majeure Clause itself then it shall be governed by Section 32 of the Contract Act but if the terms are not expressly mentioned in the CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 34 of 54 contract, then Section 56 of the Contract Act shall govern the contract and the course of impossible events. The Court observed as under:
"34. ―Force majeure‖ is governed by the Contract Act, 1872. Insofar as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. Insofar as a force majeure event occurs dehors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract Act. Sections 32 and 56 are set out herein:
―32. Enforcement of contracts contingent on an event happening.-- Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void. ***
56. Agreement to do impossible act.-- An agreement to do an act impossible in itself is void.
Contract to do act afterwards becoming impossible or unlawful.--A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful.-- Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non- performance of the promise.
35. Prior to the decision in Taylor v. Caldwell [Taylor v. Caldwell, (1863) 3 B&S 826 : 122 ER 309 : (1861-73) All ER Rep 24] , the law in England was extremely rigid. A contract had to be performed, notwithstanding the fact that it had become impossible of performance, owing to some unforeseen event, after it was made, which was not the fault of either of the parties to the contract. This rigidity of the Common law in which the absolute sanctity of contract was upheld was loosened somewhat by the decision in Taylor v. Caldwell [Taylor v. Caldwell, (1863) 3 B&S 826 : 122 ER 309 : (1861-
73) All ER Rep 24] in which it was held that if some CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 35 of 54 unforeseen event occurs during the performance of a contract which makes it impossible of performance, in the sense that the fundamental basis of the contract goes, it need not be further performed, as insisting upon such performance would be unjust.
36. The law in India has been laid down in the seminal decision of Satyabrata Ghose v. Mugneeram Bangur & Co. [Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 SCR 310 : AIR 1954 SC 44] The second paragraph of Section 56 has been adverted to, and it was stated that this is exhaustive of the law as it stands in India. What was held was that the word ―impossible‖ has not been used in the section in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose of the parties. If an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered their agreement, it can be said that the promisor finds it impossible to do the act which he had promised to do. It was further held that where the Court finds that the contract itself either impliedly or expressly contains a term, according to which performance would stand discharged under certain circumstances, the dissolution of the contract would take place under the terms of the contract itself and such cases would be dealt with under Section 32 of the Act. If, however, frustration is to take place dehors the contract, it will be governed by Section
56.
37. In Alopi Parshad & Sons Ltd. v. Union of India [Alopi Parshad & Sons Ltd. v. Union of India, (1960) 2 SCR 793 :
AIR 1960 SC 588] , this Court, after setting out Section 56 of the Contract Act, held that the Act does not enable a party to a contract to ignore the express covenants thereof and to claim payment of consideration, for performance of the contract at rates different from the stipulated rates, on a vague plea of equity. Parties to an executable contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate, for example, a wholly abnormal rise or fall in prices which is an unexpected obstacle to execution. This does not in itself get rid of the bargain they have made. It is only when a consideration of the terms of the contract, in the light of the circumstances existing when it was made, showed that they never CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd.
AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 36 of 54 agreed to be bound in a fundamentally different situation which had unexpectedly emerged, that the contract ceases to bind. It was further held that the performance of a contract is never discharged merely because it may become onerous to one of the parties.
38. Similarly, in Naihati Jute Mills Ltd. v. Khyaliram Jagannath [Naihati Jute Mills Ltd. v. Khyaliram Jagannath, (1968) 1 SCR 821 : AIR 1968 SC 522] , this Court went into the English law on frustration in some detail, and then cited the celebrated judgment of Satyabrata Ghose v. Mugneeram Bangur & Co. [Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 SCR 310 : AIR 1954 SC 44] Ultimately, this Court concluded that a contract is not frustrated merely because the circumstances in which it was made are altered. The courts have no general power to absolve a party from the performance of its part of the contract merely because its performance has become onerous on account of an unforeseen turn of events.
48. Supreme Court in Halliburton Offshore Service Inc. v. Vedanta Limited, 2020 SCC OnLine Del 2068 has summarized the law laid down by the Supreme Court in Energy Watchdog (Supra) stating that Force Majeure operates within the ambit of Section 32 of the Contract Act if contained in a contract as contingency and would operate independently if not contained in the contract. Impossibility of the performance of contract takes place if the untoward event totally disrupts the foundation upon which the agreement was entered into. The Court held as follows:
―64. The law relating to Force Majeure has been recently settled by the Supreme Court in the case of Energy Watchdog v. Central Electricity Regulatory Commission, (2017) 14 SCC 80. The principles laid down by the Supreme Court in paragraphs 34-42 are as under:
a) Force Majeure would operate as part of a contract as a contingency under section 32 of the Indian Contract Act 1872 (‗ICA').
b) Independent of the contract sometimes, the doctrine of frustration could be invoked by a party as per Section 56, ICA.
c) The impossibility of performance under Section 56, ICA would include impracticability or uselessness keeping in mind the object of the contract.
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 37 of 54
d) If an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered their agreement it can be said that the promisor finds it impossible to do the act which he had promised to do.
e) Express terms of a contract cannot be ignored on a vague plea of equity.
f) Risks associated with a contract would have to be borne by the parties.
g) Performance is not discharged simply if it becomes onerous between the parties.
h) Alteration of circumstances does not lead to frustration of a contract.
i) Courts cannot generally absolve performance of a contract either because it has become onerous or due to an unforeseen turn of events. Doctrine of frustration has to be applied narrowly.
j) A mere rise in cost or expense does not lead to frustration.
k) If there is an alternative mode of performance, the Force Majeure clause will not apply.
l) The terms of the contract, its matrix or context, the knowledge, expectation, assumptions and the nature of the supervening events have to be considered.
m) If the Contract inherently has risk associated with it, the doctrine of frustration is not to be likely invoked.
n) Unless there was a break in identity between the contract as envisioned originally and its performance in the altered circumstances, doctrine of frustration would not apply.
49. The Coordinate Bench of this Court in Ramanand and Ors. v. Dr. Girish Soni and Anr., 2020 SCC OnLine Del 635 has elaborated upon the application of Force Majeure and the applicability of Section 32 of Contract Act in case the stipulations are provided in the contract itself. The Court stated that:
―12. Contracts of tenancy and leases could be of different kinds including--
(i) Oral tenancies with a month-to-month payment of rent;
(ii) Short term tenancy agreements with a monthly rent payable;
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 38 of 54
(iii) Long term leases with force majeure clauses;
(iv) Lease agreements which are structured as revenue sharing agreements and;
(v) Lease agreements which are in the nature of monthly payments as a percentage of the sales turnover.
13. The above list is however not exhaustive. The question of waiver, suspension or any remission in the rental payments would operate differently for each category of agreements. Where there is a contract, whether there is a force majeure clause or any other condition that could permit waiver or suspension of the agreed monthly payment, would be governed by the contractual terms. If, however, there is no contract at all or if there is no specific force majeure clause, then the issues would have to be determined on the basis of the applicable law.
14. In circumstances such as the outbreak of a pandemic, like the current COVID 19 outbreak, the grounds on which the tenants/lessees or other similarly situated parties could seek waiver or non-payment of the monthly amounts, under contracts which have a force majeure clause would be governed by Section 32 of the Indian Contract Act, 1872 (hereinafter, ―ICA‖). This section reads as under:
―32. Enforcement of contracts contingent on an event happening. Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.
If the event becomes impossible, such contracts become void.‖
15. ‗Force Majeure' is defined by Black's Law Dictionary as ―an event or effect that can be neither anticipated nor controlled‖. As per the dictionary, ―The term includes both acts of nature (e.g. floods and hurricanes) and acts of people (e.g. riots, strikes and wars).
16. The Supreme Court in Energy Watchdog v. CERC, (2017) 14 SCC 80 has clearly held that in case the contract itself contains an express or implied term relating to a force majeure condition, the same shall be governed by Section 32 of the ICA. Section 56 of the ICA, which deals with impossibility of performance, would apply in cases where a force majeure event CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 39 of 54 occurs outside the contract. The Supreme Court observed:
―34. ―Force majeure‖ is governed by the Contract Act, 1872. Insofar as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly Section 32 thereof. Insofar as a force majeure event occurs dehors the contract, it is dealt with by a rule of positive law under Section 56 of the Contact Act.‖
17. Thus, in agreements providing for a force majeure clause, the Court would examine the same in the light of Section 32. The said clause could be differently worded in different contracts, as there is no standard draft, application or interpretation. The fundamental principle would be that if the contract contains a clause providing for some sort of waiver or suspension of rent, only then the tenant could claim the same. The force majeure clause in the contract could also be a contingency under Section 32 which may allow the tenant to claim that the contract has become void and surrender the premises. However, if the tenant wishes to retain the premises and there is no clause giving any respite to the tenant, the rent or the monthly charges would be payable.‖
50. It has been clearly stipulated by the Hon‟ble Supreme Court in the case of NTPC Limited v. Voith Hydro Joint Venture, 2020 SCC OnLine SC 1071 that the express provision of the contract stating the Force Majeure Clause would prevail over the plain language of Section 56 of the Contract Act. The Court stated that:
―54. The Contract, essentially, has two facets. The first relates to the performance of reciprocal promises that parties are obliged to perform but for any supervening event. These obligations would obviously be curtailed if their performances are rendered impossible. To that extent, the Contract would stand frustrated as being incapable of performance. However, to the extent that the parties have already contemplated the consequences of such supervening event, the same would remain binding and parties would not be absolved to act in accordance with the commitment made in contemplation of such eventuality. It is open for the parties to agree that if on account of any force majeure condition it is impossible to perform a contract, a party would compensate the other for the efforts made notwithstanding that it is impossible to fully perform the CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 40 of 54 same. It would be erroneous to contend that in such cases, the party who has so agreed to compensate the other contracting party for the efforts undertaken would be absolved of its obligation to do so merely because of a supervening event, the possibility of which was contemplated, had occurred. In this view, this Court is unable to find any fault with the decision of the Arbitral Tribunal that in such cases, the contractual provisions would prevail over the plain language of Section 56 of the Contract Act.
51. Applying the principles enunciated above, it is clear that Section 32 would apply in the present scenario as there is a clear stipulation in the Contract regarding the Force Majeure Clause contained in Clause 15.2 of the Sub Lease Deed. Clause 15.2 states that the Force Majeure Clause would apply if there are ‗restrictive governmental laws or regulations, riots, insurrection, war, terrorist action, strike, public demonstrations, rallies, acts of God, etc' and the stipulation continues for a period more than 90 days.
52. It is relevant at this stage to mention Mugneeram Bangur and Co. v. Gurbachan Singh, (1965) 2 SCR 630 wherein the Hon‟ble Supreme Court has interpreted frustration doctrine and explained the concept of supervening impossibility which should not be absolute but must lead to an impracticable performance which neither of the parties are responsible for. The Court observed as under:
"5. Insofar as discharge of contract by reason of frustration is concerned there is no question of implying a term in the contract a term fundamental for its performance, as is done by the courts in England because we have here the provisions of Section 56 as well as those of Section 32 of the Contract Act. This is what was held by this Court in the earlier case and that decision binds us. No doubt, a contract can be frustrated either because of supervening impossibility of performance or because performance has become unlawful by reason of circumstances for which neither of the parties was responsible. In the earlier case this Court has held that where the performance of an essential condition of the contract has become impossible due to supervening circumstances the contract would be discharged. This Court has further held that the impossibility need not be an absolute one but it is sufficient if further performance becomes impracticable by some cause for which neither of the CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 41 of 54 parties was responsible. It, however, held that the mere fact that the performance of an essential term of the contract, that is to say, of undertaking development of the area under the scheme could not be undertaken because the land had been requisitioned, did not have the effect of frustrating the contract. For though the term regarding development was an essential term of the contract, the requisitioning of the land was only for a temporary period. Further the parties had deliberately not placed any time limit within which roads and drains had to be made apparently because they were aware of the difficulties in carrying on the work on account of scarcity of materials and the various restrictions which the Government had placed on such activities. This Court also pointed out:
―Another important thing that requires notice in this connection is that the war was already on, when the parties entered into the contract. Requisition orders for taking temporary possession of lands for war purposes were normal events during this period.‖ (pp. 326-27) Though these observations were made while dealing with the argument that the contract has been frustrated by reason of impossibility of performance they would not be wholly out of place while considering the argument based upon the ground that continued performance of the contract had been rendered unlawful.
53. This Court finds it relevant to cite Pollock & Mulla on The Indian Contract Act, 1872 (15th ed) which states that the intent of the doctrine of frustration is to escape from the injustice and the Court while interpreting the frustration clause need not travel outside the contract. It elaborates the principle as follows:
―The doctrine of frustration has been stated to have been developed by the law as an expedient to escape from injustice, where such would result from enforcement of a contract in its literal terms after a significant change in circumstances. ―It is really a device, by which the rules as to absolute contracts are reconciled with a special exception which justice demands.
Section 56 is exhaustive, and it is not permissible for the Courts to travel outside the provisions. When an event of change of circumstances occurs, which is so fundamental as to be regarded by law as striking at the root of the contract, it is the Court which can pronounce the contract to be frustrated and at an end. The Court CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 42 of 54 has to examine the contract, the circumstances under which it was made, the belief, knowledge and intention of the parties, being evidence of whether the changed circumstances destroyed altogether the basis of the adventure and its underlying object. This, in England, is termed as rule of construction; in India, this is really a rule of positive law and as such comes under section 56 of the Contract Act.
54. The Supreme Court in Satyabrata Ghose v Mugneeram Bangur & Co., AIR 1954 SC 44 has interpreted the frustration of contract explaining the impossibility to perform an act and the import of physical and literal impossibility in the section. The Court stated thus:
―The first paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are not all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word 'impossible' has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do.
55. The Hon‟ble Supreme Court in the case of Industrial Finance Corp of India Ltd v Cannanore Spinning and Weaving Mills Ltd, (2002) 5 SCC 54 has analyzed the intent of the doctrine of frustration or supervening impossibility stating that the Court cannot compel a party to do which it cannot possibly perform. The Court stated that:
―It is then, a general rule which admits of ample practical illustration, that impotentia excusat legem; where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will in general excuse him and though the impossibility of performance is in CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 43 of 54 general no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse.
56. On the issue of government regulations leading to frustration of contract, Ram Kumar v. P.C. Roy and Co., (India) Ltd. AIR 1952 Cal 335 becomes relevant as in this case the Calcutta High Court has explained the doctrine of frustration and its application during the restrictive governmental regulations leading to impossibility in performance of a contract. The Court observed as under:
―The main object of the contract was the transhipment of the goods from Bihar to Bengal by Railway and in my opinion having regard to the events that have happened the basis of the contract has been overthrown. In the absence of express intention of the parties I have to determine what is just and reasonable in view of the non-availability of wagons for transport and the difficulties created by the restrictions or emergency orders. It may be now accepted as settled law that when people enter into a contract which is defendant for its performance on the continued availability of a specific thing and that availability comes to an end by reason of circumstances beyond the control of the parties, the contract is dissolved. According to Lord Wright the expression ‗frustration of the contract' is an elliptical expression. The fuller and more accurate expression is ‗frustration of the adventure or the commercial or practical purpose of the contract'. In my view, the commercial or practical purpose of this contract was defeated or over-thrown by the refusal on the part of the Government to issue permit and by the non-availability of the transport facilities and the restrictions and embargoes put by the Government and ultimately by requisition of the stock of the plaintiff. The real object of the contract as contemplated by the parties was ‗the purchase or employment of the goods for a particular purpose and therefore the doctrine of frustration can be imported and if necessary, the requisite terms can be implied.
57. Madhya Pradesh High Court has laid down a test in Firm Bachhraj Amolakchand v. Firm Nandlal Sitaram, 1962 SCC OnLine MP 120 for finding out frustration of the contract and the impossibility.
The test is as follows:
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 44 of 54 ―23. Applying the test and principles discussed in the above cases, it is clear that in each case, the following three questions arise for consideration:
(1) What was the foundation of the contracts having regard to all the circumstances of the case? (2) Whether the performance of the contract was prevented; and (3) Whether the event which prevented the performances of the contract was of such a character that it could not reasonably be said to be in the contemplation of the parties at the date of the contract.
58. The Hon‟ble Supreme Court in Sushila Devi v. Hari Singh, (1971) 2 SCC 288 mentioned that the performance of the contracts becomes impossible when the impossibility strikes at the root of the contract and makes it impossible to perform the terms of the contract. The Court observed as under:
―11. If the performance of a contract becomes impracticable or useless having regard to the object and purpose the parties had in view then it must be held that the performance of the contract has become impossible. But the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract.
12. From the facts found in this case it is clear that the plaintiffs sought to take on lease the properties in question with a view to enjoy those properties either by personally cultivating them or by sub-leasing them to others. That object became impossible because of the supervening events.
Further the terms of the agreement between the parties relating to taking possession of the properties also became impossible of performance. Therefore, we agree with the trial court as well as the appellate court that the contract had become impossible of performance.
59. It has also been held that applying the doctrine of frustration must always be within the narrow limits. In an instructive English judgment namely, Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH, 1962 AC 93 despite the closure of the Suez canal, and despite the fact that the customary route for shipping the goods was only through the Suez canal, it was held that the contract of sale of groundnuts in that case was not frustrated, even though it would have to be performed by an alternative mode of performance which was much more expensive, CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 45 of 54 namely, that the ship would now have to go around the Cape of Good Hope, which is three times the distance from Hamburg to Port Sudan. The freight for such journey was also double. Despite this, the House of Lords held that even though the contract had become more onerous to perform, it was not fundamentally altered. Where performance is otherwise possible, it is clear that a mere rise in freight price would not allow one of the parties to say that the contract was discharged by impossibility of performance.
60. Li Ching Wing v. Xuan Yi Xiong, [2004] 1 HKLRD 754 passed by Hong Kong Court also becomes relevant here. It suggests prospects in arguing that agreements are frustrated by closures caused by Covid-19. In the said case, a residence was leased for a 2-year fixed term. Due to the SARS outbreak, an isolation order was issued due to which the tenant has to move out. Later the tenant issued a letter to terminate the lease and the landlord accepted his termination. Relying upon UK House of Lords decision in National Carriers v Panalpina, [1981] AC 675 which had approved the prior decision of Cricklewood Property and Investment Trust v Leightons Investment Trusts, [1945] AC 221 the Court has refused to accept the tenants‟ contention that the contract was frustrated. In the former case, Lord Simon of Glaisdale had defined frustration as:
"Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance. (at 700F)"
61. Importantly, the House of Lords in Cricklewood Property and Investment Trust v Leightons Investment Trusts (supra) observed that:
"An event which causes an interruption in the expected use of the premises by the lessee will not frustrate the lease, unless the interruption is expected to last for the unexpired term of the lease, or, at least, for a long period of that unexpired term. Therefore, emphasis was placed on the length (both qualitative and quantitative) CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 46 of 54 of the supervening event vis a vis the remainder of the lease term".
62. Finally, the High Court of Bombay in Standard Retail Pvt. Ltd. v. M/s G.S. Global Corp & Ors., Commercial Arbitration Petition (L) No. 404 of 2020 dismissed a plea invoking the Force Majeure exemption in a contract involving steel importers. While dismissing, it observed that the distribution of steel has been declared as an essential service, and there have been no significant restrictions on the movement of vehicles and manpower in the context of the steel industry, or operations of container freight stations and warehouses for steel. It further noted that the lockdown would be for a limited period and the lockdown cannot come to the rescue of the petitioners so as to resile from its contractual obligations to the respondent of making payments.
63. The Hon‟ble Supreme Court in Halliburton Offshore Service Inc. (Supra) has explained whether or not the COVID-19 pandemic would justify non- performance or breach of a contract. The Court stated that:
―69. The question as to whether COVID-19 would justify non-performance or breach of a contract has to be examined on the facts and circumstances of each case. Every breach or non-performance cannot be justified or excused merely on the invocation of COVID- 19 as a Force Majeure condition. The Court would have to assess the conduct of the parties prior to the outbreak, the deadlines that were imposed in the contract, the steps that were to be taken, the various compliances that were required to be made and only then assess as to whether, genuinely, a party was prevented or is able to justify its non-performance due to the epidemic/pandemic.
70. It is the settled position in law that a Force Majeure clause is to be interpreted narrowly and not broadly.
Parties ought to be compelled to adhere to contractual terms and conditions and excusing non-performance would be only in exceptional situations. As observed in Energy Watchdog (supra) it is not in the domain of Courts to absolve parties from performing their part of the contract. It is also not the duty of Courts to provide a shelter for justifying non-performance. There has to be a ‗real reason' and a ‗real justification' which the Court would consider in order to invoke a Force Majeure clause.‖ CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 47 of 54
64. From the above discussion, it is clear that the doctrine of frustration and impossibility would apply if a party is prevented from performing the terms of the contract which are essential and strike at the root of the contract. In other words, the government regulations are specifically mentioned in the Lease Deed and they operate as Force Majeure. The Government regulations prevented the defendant from accessing the leased premises for about 6 months which constitutes a ‗real justification' as per the Hallibuton judgment and brings an exception as to excuse the non-performance of the contractual obligations in the present case.
65. Even if the Contract did not stipulate Government regulations still the landmark English authority of Metropolitan Water Board v. Dick Kerr & Co. Ltd., 1918 AC 119 (HL) would have covered the issue and the impossibility to access the leased premises would still operate as a Force Majeure Event preventing the completion of contract and leading to termination of the same. In that case, by a contract made in July 1914, a firm of contractors contracted with a Water Board to construct a reservoir to be completed within six months. But by a notice issued under the Defence of the Realms Acts, the contractors were required to cease work on their contract and they stopped the work accordingly. They claimed that the effect of the notice was to put an end to the contract. The House of Lords held that the interruption created by the prohibition was of such a character and duration so as to make the contract when resumed a different contract from the contract broken off, and that contract had ceased to operate.
66. The Metropolitan Water Board case has been followed in the subsequent cases of C. Czarnikow Ltd. v. Centrala Handlu Zagaraniczneo Rolimpex, 1979 AC 351 where contracts were frustrated as the Government Monopoly Corporation ended on the ban on exports and later on followed in Syed Khursed Ali v. State of Orissa, AIR 2007 Ori 56, where beef could not be supplied under the contract because of the Orissa Prevention of Cow Slaughter Act, 1960, and it was held that it was not an intentional failure of contract of supply.
67. Applying the above principles, considering the pandemic and the role of the government regulations, especially in the pandemic in frustrating the contracts between the parties, this Court is of the view that the defendant was prevented by the government regulations CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 48 of 54 to access the leased premises. The term of the restriction is the subject of next issue but it is established that the restriction led to the prevention of the access.
68. Along with the application of Force Majeure in the present case, it is important for this Court to appreciate that there is a specific noting on the Notice of Termination dated 27th June 2020 in the documents filed by the plaintiffs themselves stating that the Notice was read at 11:45 a.m. on 9th July 2020 and that no acknowledgment of reply was given by the plaintiffs. Thus, the claim of the plaintiffs that they never received the Notice of Termination cannot be accepted by this Court. It seems that the plaintiffs even after having read the Notice of Termination did not take any action in this regard and tried to put responsibility/ liability on the defendant.
69. Hence, it is clear that the application of Force Majeure because of the government regulations imposing a lockdown on the hospitality services coupled with the noting that the Notice of Termination dated 27 th June 2020 was read by the plaintiff on 9th July 2020 make it clear that the Notice of Termination is not bad in law and, hence, binding on the parties. ISSUE 2 Whether the defendant is liable to pay to plaintiff the arrears of rent to the tune of Rs. 5,38,75,117/-?
70. It is submitted by learned counsel for the defendant that it was prevented from accessing the leased premises for a period of about 6 months, w.e.f. 25th March 2020 until 21st August 2020.
71. Clause 8 of the Second Lease Deed expresses its object stating that the premises were meant to be used by defendant as a part of its hotel. Clause 8 states that:
―8. USE OF THE SAID PROPERTY 8.1 The lessee shall be entitled and free to use the Said Property as part of the Hotel for commercial gain for the customers/ guests (―Guests‖) including as a service apartment/ suite/ hotel room in the manner as it deems fit and proper without any interference by the Lessor whatsoever. Any amount/ revenue/ gains/ benefits received by the Lessee from such use of the Said Property and the rights attached therewith in terms of the Deed shall solely belong to the Lessee and Lessor shall have no right, interest, claim on any such amount/ revenue etc. or against the Lessee.‖ From the CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 49 of 54 government circulars cited and discussed above in issue No. 1 and perusing the object of the Second Lease Deed, it is clear that the defendant was prevented from accessing to the hotel from 25th March 2020 until 21st August 2020. It is clear that the defendant was prevented from using the premises for a period of more than 90 days as a matter of record. This has borne out of statutory orders issued by the Government of India and the Government of NCT of Delhi.
72. In the case of Mehra Jewel Palace Pvt. Ltd. v. Miniso Life Style Pvt Ltd., 2022 SCC OnLine Del 1557, the Coordinate Bench of this Court has held that COVID- 19 is an „Act of God‟ and consequently, a Force Majeure event. Even otherwise, irrespective of the 90 days' requirement, the occurrence of „Act of God‟ entitled parties to terminate the Second Lease Deed under Clause 15.2. These facts have borne out from the statutory instruments and therefore, do not require proof by adducing of evidences at the trial.
73. Furthermore, this Court has perused the copy of the Notice of Termination dated 27th June 2020 filed by the plaintiffs themselves bearing a noting on the top of the Termination Notice stating therein that the plaintiffs had received the Notice dated 27th June 2020 on 9th July 2020. This Court is, thus, of the view that there is an unequivocal admission on the part of the plaintiffs to have received the Notice of Termination on 9th July 2020. If compared with the same Notice of Termination filed separately in the letter dated 18th June 2021 at the end of the list of plaintiffs‟ documents, no such noting of 9 th July 2020 on the Communication dated 18th June 2021 is found. Further, it is clear that no acknowledgment has been given by the plaintiffs with respect to the receipt of the Notice of Termination.
74. It is also true that the possession was offered to the plaintiffs by the defendant and it is the plaintiffs‟ prerogative to take over the possession. The constructive possession was handed over to the plaintiffs by the 27th June 2020 letter. The said letter reads as under:
―Pursuant to said termination, you are called upon to take possession of the premises. Simultaneously you are also requested to refund the entire security deposit for which you may please contact Sanjeev Malik in the Accounts Department at [email protected].
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 50 of 54
75. Since, the plaintiffs had received the Notice of Termination dated 27th June 2020 and were aware of the defendant‟s call for the plaintiffs to take possession of the premises, the constructive possession of the premises was handed over to the plaintiff on 27th June 2020 only.
76. Hence, from the discussion above, this Court comes to the conclusion that the Sub Lease was terminated vide Notice of Termination letter dated 27th June 2020. Resultantly, the defendant is not liable for the arrears of rent to the tune of Rs.5,38,75,117/-. At the same time, it is important for the Court to take note of the representation filed by the defendant to pay the rent of the leased premises up to 9 th July 2020. The defendant in his written submissions has stated that:
― Therefore, the claim of the Plaintiffs seeking rent for the period of April 2020 to April 2023 is baseless and devoid of merit. Without prejudice, the Defendant undertakes to pay the Plaintiff the rent up to 09.07.2020 in accordance with the Second Lease Deed.
77. Since, the defendant on his own accord has offered to pay the arrears of rent till 9th July 2020 the plaintiffs may recover the arrears of rent till 9th July 2020. CONCLUSION
78. COVID-19 brought the world to a halt and hospitality industry was no exception to it. The present case also pertains to parties affected by the COVID-19 and its adverse effects. The contractual obligations in the present suit concern the rent to be paid under a sub- lease but the contract itself became frustrated because of the lockdown order preventing the party from accessing the leased premises.
79. Considering the factual matrix of the case, authorities cited, pleadings filed and arguments advanced, this Court is of the view that the plaintiff is not entitled to the arrears of rent for the period contended as the Sub-Lease Deed was terminated vide letter dated 27th June 2020 by the defendant after following due procedure and after sufficient suffering at the hands of grappling pandemic existing at that time.
80. Thus, the Notice of Termination dated 27th June 2020 is valid and binding on both the parties, bringing an end to the Sub-Lease Deed entered between the parties. Consequently, the prayer for recovery of arrears of rent stands rejected but considering the CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 51 of 54 representation by the defendant, the plaintiffs may recover the rent arrears till 9th July 2020.
81. Accordingly, in terms of the aforesaid discussion, the captioned suit stands dismissed.
82. Pending applications, if any, also stand dismissed.
Therefore, in present facts and circumstances, the notice of termination dt. 29.08.2020 is valid in law and the defendant is entitled to vacate the premises, which defendant vacated symbolically on 31.08.2020 and physically when the keys were delivered. The plaintiff deliberately not appeared to take the possession despite knowledge through notice dt. 29.08.2020 and subsequent communications. The defendant is however entitled to pay the rent and other charges in terms of lease deed till 31.08.2020 and not thereafter. The defendant is also not bound to make the payment of rent for the entire lock-in period of 36 months and entitled to terminate the lease as there is no waiver of rent by plaintiff due to nationwide lockdown by the plaintiff.
Issue nos. 1, 2, 3 & 5 accordingly decided in favour of defendant and against the plaintiff.
Issue No.6 : Whether the defendant is entitled for refund as claimed in the counterclaim? OPD (in CS 57/21) Issue no. 6 : Whether the defendant is entitled for refund as claimed in the counterclaim? OPCC (in CS 418/21)
43. The defendant admittedly stayed in the premises since 31.08.2020, and voluntarily paid the rent of Rs. 27,00,000/- till 11.08.2020 and vacated the premises because there was no CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 52 of 54 waiver of rent by the plaintiff on account of non-use as there is nationwide lockdown. Once the defendant himself vacated the premises, he is not entitled for any refund of the payment already made. As per the calculation sheet filed by the defendant/ counter claimant, if he is required to pay the rent upto 31.08.2020 then the net rent payable by the defendant from January 2020 to August, 2020 @ Rs. 5,40,000/- i.e. Rs. 43,20,000/- and the outstanding maintenance charges for the said period is Rs. 2,00,305/60p. Thus the total outstanding amount to be paid by the defendant to the plaintiff is Rs. 45,20,305/60p. However, the defendant already paid Rs. 27,00,000/- till August, 2020 and there is already security deposit of Rs. 20 Lacs, therefore, paid total amount of Rs. 47 Lacs and amount to be refunded Rs. 1,79,694/-. The defendant is bound to pay the rent and expenses in terms of lease deed till 31.08.2020. The defendant is claiming the balance of Rs. 1,79,694/-, however, defendant unable to show positively from the evidence lead that he has cleared all his liabilities in terms of lease deed till he vacated the premises on 31.08.2020. Accordingly, the defendant is also not entitled for any refund. The issue no. 6 in suit as well as counter claim is decided in favour of the plaintiff and against the defendant.
Issue No. 4 : Whether the plaint is liable to be rejected on account of preliminary objections raised by the defendant? OPD (in CS 57/21)
44. The preliminary objection taken by the defendant is that the plaintiff has suppressed the material facts i.e. government notifications etc. and also the suit is not verified U/o 6 rule 15A CPC and furthermore, not filed statement of truth. However, the present suit was instituted on 23.01.2021.
CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 53 of 54 However, the statement of truth has already been filed. The verification along with the plaint is there, though strictly not in terms of Order 6 Rule 15A CPC but at this stage, this is no ground to reject the plaint.
Issue No. 4 : Whether the plaint is liable to be rejected on account of preliminary objections raised by the defendant? OPCC (In CC No. 418/21)
45. The plaintiff in the counter claimant raised the preliminary objection in written statement regarding non- entitlement of waiver of rent, non-payment of rent and other charges in terms of lease deed. All these contentions have already been dealt in the above issues framed, therefore, the plaintiff is also not able to show that the counter claim is liable to be rejected on account of preliminary objection. RELIEF
46. In view of the aforesaid discussion, both the suits i.e. CS (Comm) 57/2021 filed by plaintiff N.S. Rathore (HUF) and CS (Comm) 418/21 filed by counter claimant Samtel Avionics Ltd. are dismissed and disposed off accordingly.
File be consigned to record room after due compliance.
47. Copy of judgment be placed in original in both the files.
48. File be consigned to record room after due compliance.
Announced in the open court (Ajay Kumar Jain) on 29th February, 2024 District Judge, Comm-03 South-East, Saket Courts, Delhi CS (COMM) No. 57/2021 M/s N. S. Rathore (HUF) Vs. Samtel Avionics Ltd. AND CS (COMM) No. 418/2021 Samtel Avionics Ltd Vs. M/s N.S. Rathore dt. 29.02.2024 54 of 54