Delhi District Court
M/S Star Estates Management Ltd vs M/S Monnet Finance Limited on 16 February, 2013
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IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE-04 : CENTRAL : DELHI
Date of institution : 29.04.2005
Announced on : 16.02.2013
In re :
Suit no. 57/10
1. M/s Star Estates Management Ltd.
1110, Ansal Bhawan
16, Kasturba Gandhi Marg
New Delhi - 110001.
Through its Authorised Representative
2. M/s Ansal Properties & Infrastructure Ltd.
115, Ansal Bhawan
16, Kasturba Gandhi Marg
New Delhi - 110001.
Through its Authorised Representative ... Plaintiffs
Versus
M/s Monnet Finance Limited
302, World Trade Centre
Babar Road
New Delhi - 110001 ...Defendant
JUDGMENT
1. This is a suit for recovery of Rs.8,81,967/-. It is claimed in the plaint that both the plaintiffs are companies. Plaintiff no.1 is engaged in the work of maintenance and upkeep of common areas of the building known as Ansal Bhawan, 16, K.G. Marg, New Delhi and it has been authorised to do so by the plaintiff no.2 company which is promoter of construction of the said building. The defendant is owner of a commercial flat bearing no. 108 in the said Suit no. 57/10 Pg... 1 of 18 r -2- building. He is stated to be bound by the terms and conditions of flat buyer's agreement, dated 4.5.1972, wherein it is stipulated that the plaintiff no.2 either itself or through some maintenance agency will look after the maintenance and upkeep of common areas of the building. The defendant is claimed to be liable to make payment for the said services at the applicable rates from time to time depending upon increase in cost. Plaintiff no.1 claims that it was nominated by the plaintiff no.2 for the maintenance of common areas of the building and also other allied services. It claims that bills were raised on the defendant from time to time but only some payments were made by the defendant. The defendant is claimed to be liable to pay the suit amount including the interest up to 31.3.2005. Plaintiffs claim that they are also entitled to interest @ 24% per annum on the suit amount. Interest at the said rate is claimed for pendentelite and future period also.
2. In the plaint, the plaintiff did not give break up as to how much amount out of the suit amount was due towards principle and how much towards interest, and for which period.
3. The sole defendant contested the suit on the ground that the suit has not been instituted by duly authorised person of the plaintiff no.1 or the plaintiff no.2 and that the persons who have signed the plaint are not duly authorised. Though, the defendant denied that the plaintiff no.1 was authorised to do the work of maintenance and upkeep of common areas but in the written statement itself, the defendant admitted that it had been paying amount from time to time to the plaintiff no.1 and that the services provided by the plaintiff were not up to the standard. Thus, the claim of defendant that plaintiff no.1 was not authorised by the plaintiff no. 2 for maintenance and upkeep of the building is futile.
Suit no. 57/10 Pg... 2 of 18 r -3- Defendant though admitted that there was a Flat Buyer Agreement dated 4.5.1972 which was executed between the plaintiff no.2 and the predecessor of the defendant and that there was a clause in the agreement for payment of maintenance charges @ Rs.14/- per 100 Sq. Feet per month but it claimed that there is no provision of unilateral increase in the maintenance charges or for payment of penal interest in the said agreement. Defendant claims that if charges were to be increased, it had to be with mutual consent and there cannot be any arbitrary or unilateral increase by the plaintiffs. Defendant also claims that the services provided were bad and improper and that plaintiff no.1 had charged high rates without any confirmation or consent from the defendant. The defendant on various occasions orally and by written notices requested the plaintiff no.1 to provide the details of account of Revenue & Expenditure incurred under various heads which was never done by the plaintiff no.1. Defendant claims that as per the agreed rate of Rs.14/- per 100 Sq. Feet under the agreement dated 4.5.1972, the liability of the defendant, between the period November 1993 to June 2006, comes to Rs.16,364.32 whereas the defendant has paid Rs.2,88,072/- which is much in excess of his liability and therefore, there is no amount due whatsoever. Defendant also claims that the suit of the plaintiffs is barred by limitation.
4. In replication, the plaintiff reiterated the averments of plaint and claimed that the last payment made by the defendant was on 28.03.2005 for Rs.11,246/-, therefore, the suit filed on 28.4.2005 was within limitation. It is claimed that the consent of defendant before increase in the maintenance charges was not required as, under the agreement dated 4.5.1972, there was a provision for payment of maintenance charges by the defendant and that the increase in charges was necessitated due to increase in cost. The agreement between Suit no. 57/10 Pg... 3 of 18 r -4- plaintiff no.2 and the defendant was in the year 1972 and since then cost price has increased manifold. It is also claimed that the maintenance charges of the plaintiff no.1 has been already on lower side as compared to the cost incurred by the plaintiff no.1. It is also claimed that the services provided were of high standards and the defendant never complained of any deficiency in services. It is also claimed that earlier also defendant has paid 'on account' payment of maintenance charges at the increased rate without any objection. Plaintiffs claim that they were not obliged to take consent of the defendant before increasing the maintenance charges.
5. Following seven issues were framed in the suit on 4.9.2006 :-
1. Whether suit has been signed verified and instituted by an authorized person? (OPP).
2. Whether suit has not been filed within time? (OPD).
3. Whether plaintiff is entitled to amount as prayed in the suit towards charges for maintenance and upkeep of the suit building from defendant? (OPP).
4. Whether there was no provision for enhancing the maintenance charges and whether maintenance charges were enhanced arbitrarily or unilaterally? (OPD).
5. Whether service provided by the plaintiff was bad, improper and not up to the mark? (OPD).
6. Whether plaintiff is entitled to interest, if yes, at what rate and from when? (OPP).
7. Relief.
6. In support of its case, the plaintiff examined three witnesses including Brigadier Suit no. 57/10 Pg... 4 of 18 r -5- D.V. Malhotra, who is one of the signatories of the plaint on behalf of plaintiff no.1.
6.1. PW1 D.V. Malhotra proved certificate of incorporation of Plaintiff Company as Ex.PW1/1 and a resolution in his favour to institute the present suit as Ex.PW1/2. He also exhibited one typed document to reflect the increase in the cost of services over several years as Ex.PW1/3. The witness also exhibited bills Ex.PW1/4 to Ex.PW1/37 and statement of account Ex.PW1/38. Testimony of this witness is in lines to the averments contained in the plaint. This witness deposed that as on 30.09.2006 there was an amount of Rs. 13,14,986/- due, including the interest, against the defendant.
6.2. Again, in the deposition this witness did not give the breakup of the amount as to how much of this amount was towards interest and how much for the principle. The period of due amount is also not mentioned. The exhibiting of documents Ex.PW1/4 to 1/38 was objected to by the defendant.
6.3. In the cross examination, this witness admitted that the documents on the basis of which circulars regarding increase in maintenance charges were issued have not been placed on record. The witness also admitted that besides Clause 14 of the agreement dated 4.5.1972, there was no subsequent agreement regarding increase in the maintenance charges. He admitted that all the payments and interest qua maintenance are governed by the agreement dated 4.5.1972. He also admitted that no document has been placed on record in support of the calculation as reflected in Ex.PW1/3.
6.4. The second witness examined by the plaintiff is Sh. F. N. Rai as PW2, who Suit no. 57/10 Pg... 5 of 18 r -6- also proved certificate of incorporation of the plaintiff no.2 company as Ex.PW2/1. He deposed that Sh. R. A. Gupta, the second signatory of the plaint, was Manager (Legal) & Principal Officer of the plaintiff no.2 company and was duly authorised to institute the suit under resolution dated 29.8.1996 Ex.PW2/2. He proved the agreement dated 4.5.1972 as Ex.PW2/3. He also deposed that the plaintiff no.1 company was nominated by the plaintiff no.2 company to look after the maintenance of common areas of the building.
6.5. Even this witness admitted that besides the agreement dated 4.5.1972 Ex.PW2/3, there is no other agreement qua maintenance charges and that the increase and payment of interest is governed by that agreement.
6.6. PW3 Sh. Anil Kumar simply deposed that the plaintiff no.1 company has been authorised to maintain the building and common areas and raise prorata bills for maintenance charges on all flat owners. He exhibited copies of certain bills as Ex.PW3/1 and copies of certain receipts as Ex.PW3/2.
6.7. On the other hand, the defendant examined Sh.Narender Kumar Jain the Dy. Manager, Finance as DW1. The deposition of this witness is in lines to the averments contained in the written statement. This witness proved a document issued by plaintiff no.1 as Ex.DW1/A which is a letter dated 26.4.2002 in response to the letter of the defendant. Some of the letters of the defendant were collectively proved as Ex.DW1/B. Defendant admits that an amount of Rs.11,246/- was paid to the plaintiff no.1 on 20.7.2005 (after filing of suit) through Ex.DW1/C and Ex.DW1/D. Defendant also deposed that after certain meetings in March 2004 with one Mr. Pranav Ansal, it was agreed that the defendant will pay an amount of Rs.1 Lakh towards full & Suit no. 57/10 Pg... 6 of 18 r -7- final settlement of outstanding amount and the defendant issued two cheques worth Rs.85,123/- and Rs.1 Lakh which the plaintiff refused to accept. The said cheques were exhibited as Ex.DW1/F & G. Defendant claims that it has been continuously objecting to the unilateral increase in the maintenance charges and one such letter by it is Ex.DW1/H. Exhibiting the documents Ex.DW1/A to 1/H was objected to by the plaintiff.
6.8. In the cross examination, the defendant admitted that the rates were increased even after purchase of flat by the defendant in the year 1993 and that the plaintiff no.1 on behalf of plaintiff no.2 had been maintaining the building. He also admitted that bills of maintenance and other charges are raised by the plaintiff no.1 to the owners/occupants in the building who make payment to the plaintiff no.1. Defendant also admitted that since the purchase of flat in the year 1993, it has been making payments towards maintenance charges to the plaintiff no.1. Defendant also admitted that it has no written documentary proof regarding the settlement claimed in examination in chief.
7. Issue wise findings are as follows :-
8. Issue no.1 - Besides raising a bald plea, that the suit was not instituted, signed and verified by duly authorised person, nothing has been shown by the defendant as to how it is not properly signed, verified and instituted. PW1 Brigadier D. V. Malhotra is General Manager of plaintiff no.1 company. By virtue of his office, he is a Principal Officer of the plaintiff no.1 company and thus Under Order 29 of CPC, he was a competent person to sign, verify and institute the suit. Even otherwise, resolution in his favour was proved as Ex.PW1/2. The original minutes book was brought by PW1 on 12.1.2007.
Suit no. 57/10 Pg... 7 of 18 r -8- Similarly, PW2 proved resolution in favour of the second signatory of the plaint Sh.R. A. Gupta who signed the plaint on behalf of plaintiff no.2. The resolution in his favour was proved as Ex.PW2/2. This witness specifically deposed that R. A. Gupta was Manager (Legal) and Principal Officer of the plaintiff no.2 company.
8.1. Hon'ble Delhi High Court in the case of United India Insurance Co. Ltd. Vs. Okara Trade Parcel Carriage, RFA No.160/1991, decided on 07.12.2010, held that a General Manager of a Company is indeed a Principal Officer within the meaning of Order 29 Rule 1 of CPC. Similarly Hon'ble Delhi High Court in the case of MTNL Vs. Bharat Bhushan Sharma, RFA NO. 343/2001 decided on 06.12.2010, held that an Accounts Officer (Legal) is also definitely a Principal Officer, within the meaning of Order 29 Rule 1 CPC and Section 2 (30) of the Companies Act, 1956.
8.2. In these two judgments Hon'ble Delhi High Court, referring to the case of United Bank of India Vs. Naresh Kumar (1996) 6 SCC 660, held that there is a presumption of valid institution of suit once the same is prosecuted for number of years. In the present case also the suit has been prosecuted for last many years. It has been held by Hon'ble Supreme Court and Hon'ble Delhi High Court that even a defective plaint can be ratified, which may even be an implied ratification.
8.3. Thus, both the signatories of the plaint are not only principal officer of the two plaintiff companies but also there are resolution passed by the Board of Directors of the two plaintiff companies to sign, verify and institute the suit. This issue is accordingly decided in favour of the plaintiffs and against Suit no. 57/10 Pg... 8 of 18 r -9- the defendant.
9. Issue no.2 - Perusal of plaint and testimony of plaintiff's witnesses would reveal that neither in the plaint nor in the testimony of the witnesses, particularly the testimony of PW1, it is mentioned as to for which period the balance amount was due from the defendant. The plaint and the testimony of witnesses is absolutely silent on this aspect of the matter as to for which period the claim pertains.
9.1. Plaintiff relies on the statement of account Ex.PW1/38. This document was exhibited by PW1 in his testimony. This document was objected to as to mode of proof by the defendant at the time of its exhibition. Still, no corrective measures were taken by the plaintiff to prove this document in accordance with law. PW1 is not the person who was responsible for maintaining the statement of account. At least he has not so claimed. Therefore this document is not proved in accordance with law.
9.2. Even otherwise, this statement of account is a computer generated statement and necessary conditions of Section 65 B of the Indian Evidence Act have not been complied with.
9.3. In this regard I can usefully refer to the observations made in the case of Rakesh Kumar & others vs. State, (2009) 163 DLT 658. As to proving of electronic records, it was observed as follows;
"196. Thus, computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act.
Suit no. 57/10 Pg... 9 of 18 r
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197. Sub-section (1) of Section 65B makes admissible as a document, paper print-out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in Sub-section (2) of Section 65B. Following are the conditions specified by Sub-section (2):
(a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
(b) Information was fed in the computer in the ordinary course of. the activities of the person having lawful control over the computer;
(c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
(d) Information reproduced is such as is fed into computer in the ordinary course of activity.
198. Under Sub-section (3) of Section 65B, Sub-sections (1) and (2) would apply where single or combination of computers, is used for storage or processing in the regular course of activities and the computers used shall be construed as a single computer.
199. Under Sub-section (5), information shall be taken to be supplied to a Suit no. 57/10 Pg... 10 of 18 r
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computer by means of an appropriate equipment, in the course of normal activities intending to store or process it in the course of activities and a computer output is produced by it whether directly or by means of appropriate equipment.
200. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the Court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print-out. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, print out of an electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus compliance with Sub-sections (1) and (2) of Section 65B is enough to make admissible and prove electronic records.
201. Sub-section (4) of Section 65B provides for an alternative method to prove electronic record. Sub-section (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate issued by the person described in Sub-section (4) and certifying contents in the manner set out in the sub-section. The sub-section makes admissible an electronic record Suit no. 57/10 Pg... 11 of 18 r
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when certified that the contents of a computer printout are generated by a computer satisfying the conditions of Sub-section (1), the certificate being signed by the person described therein.
202. Additionally, irrespective of compliance of the requirements of Section 65B, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 and 65."
9.4. In the present case admittedly, no certificate in terms of Section 65B(4) has been issued. The testimony of PW-1 also does not fulfill the conditions prescribed under Section 65B of Evidence Act. No permission to lead secondary evidence was obtained from the court to prove this document by way of secondary evidence. In that view of the matter, I hold that the plaintiff has not been able to prove the statement of account, in the manner required by law. In such circumstances, this document cannot be looked into.
9.5. In any eventuality, assuming that this statement of account of the plaintiff is correct and proved, still for the following reasons the entire suit amount is certainly not within limitation. The period of limitation prescribed for a suit to recover an amount is three years from the date when the amount becomes due. The statement of account between the plaintiffs and the defendant is not an open, mutual and running account. In order to invoke the category of open, mutual and running account, there has to be reciprocal demands between the two parties. It is lacking in this case. In this case, the plaintiffs were raising maintenance charges, bills every month or after every prescribed period and there was no reciprocal demand from the defendant to the plaintiff.
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9.6. In the case of M/s. Alliance Paints and Varnish Works Pvt. Ltd (supra), it was held as follows;
"10. A bare reading of the aforesaid Articles set out in the Schedule to the Limitation Act shows that Article 1 relates to suits in respect of balance due on a mutual, open and current account where there have been reciprocal demands between the parties. The period of limitation prescribed by this Article is three years from the close of the year in which the last item admitted or proved is entered in the account and such year is to be computed as in the account. In other words, if the statement of account between the parties is to be regarded as a mutual, open and current account, then the period of limitation of three years would begin from the close of the year in which the last item admitted or proved is entered in the account. In the instant case, however, the learned Additional District Judge has held, and I think rightly so, that Article 1 of the Schedule to the Limitation Act cannot be invoked in favour of the respondent, as the respondent has failed to prove the existence of a mutual account between the parties.
It is settled law that merely because there is a running, open or current account in respect of the transactions between the parties does not mean that Article 1 of the Limitation Act, 1963 would apply. It has been so held by the Supreme Court in the case of Kesharichand Jaisukhlal v. Shilong Banking Corporation Ltd. (1965) 3 SCR 110, after referring to the leading case on mutual accounts Hirada Basappa v. Gadigi Muddappa (1871) VI MHCR 142, wherein it is observed as under:
"To be mutual there must be transactions on each side creating independent obligations on the other, and not merely transactions which create obligations on the one side, those on the other being merely complete Suit no. 57/10 Pg... 13 of 18 r
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or partial discharges of such obligations."
A Division Bench of this Court in the case of Manish Garg v. East India Udyog Ltd. 2001 III AD (Delhi) 493, after referring to the judgment of the Supreme Court in Kesharichand Jaisukhlal's case (supra) and in the case of Hindustan Forest Co. v. Lal Chand and Ors. (1960) 1 SCR 563, held as follows:
"8. Thus for an account properly to be called Mutual Account there must be mutual dealing in the sense that both the parties come under liability under each other. In this case, this ingredient is not satisfied. It was simply a case of debtor and creditor only and not a case of mutual obligations which will in the ordinary way result in enforceable liabilities on each side. Mutual Account is when each has a demand or right of action against the other."
9.7. Thus, the prescribed period of limitation is respectively three years from the date the respective bills were raised.
9.8. The statement of account Ex.PW1/38 reflects the amount due and paid from 31.3.1995 onwards till 28.3.2005. As on 31.3.1995, a balance amount of Rs. 95,995/- is reflected. It is not mentioned anywhere as to since when and for which period prior to 31-03-1995, this amount of Rs.95,995/- was balance. Thereafter, part payment was received by the plaintiffs on 8.5.1995. From 8.5.1995 till 22.4.1999, i.e. a gap of four years, there is no payment at all. The limitation breaks here. Thus, even otherwise the plaintiff cannot calculate and include the amount due prior to 22.3.1999.
9.9. Even otherwise, I have held that statement of account Ex.PW1/38 is not proved in accordance with law and therefore, this statement cannot be looked Suit no. 57/10 Pg... 14 of 18 r
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into in favour of the plaintiffs, thereby meaning that the plaintiffs could not have included the amount due for the period prior to three years from the date of institution of this suit. The suit was instituted on 28.4.2005 meaning thereby that amount due from 28.4.2002 onwards could only have been included in the suit. As mentioned above, the plaintiff has not given the break up either in the plaint or in the testimony of PW1 as to the total suit amount.
9.10.Thus, this issue is partly decided in favour of the defendant and partly in favour of the plaintiff to the effect that amount which was due from 28.4.2001 onwards could only be recovered by the plaintiff, subject to the decision of issues no. 3, 4 & 5. Admission as to payment or the fact of payment after institution of suit is inconsequential for counting the limitation period. This issue is accordingly answered.
10. Issue no. 5 - was whether services provided by the plaintiff were bad, improper and not up to the mark? Onus to prove this issue was on the defendant and though defendant in its written statement and evidence claimed that the standard of services provided by the plaintiffs was not up to the mark but the said claim does not find support from any documentary proof from the defendant to the plaintiff no.1 prior to the institution of suit. The documents Ex.DW1/A to 1/H nowhere records that services provided by the plaintiff no.1 company were deficient in any manner. These communications are between the plaintiff no.1 and the defendant. This fact alone suggests that the claim of deficiency in services is nothing but false. Admittedly, the defendant has made certain payments to the plaintiff no.1 company. The quality of services was never challenged prior to the institution of suit, therefore this issue is decided against the defendant and in favour of the Suit no. 57/10 Pg... 15 of 18 r
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plaintiffs.
11. Issue no.3 & 4 being interconnected are taken up together. It is an admitted position in the present matter that the flat buyers or the subsequent purchasers were bound by the terms & conditions as contained in the original flat buyer's agreement dated 4.5.1972. The said agreement is proved as Ex.PW2/3. In Clause 14 of the said agreement, there is a provision for payment of maintenance and upkeep charges @ Rs.14/- per 100 Sq. Feet per month. There is no specific clause in the said agreement entitling the increase in maintenance/upkeep charges. However, since this agreement was entered into way back in 1972 and certainly because of the increase in the cost of input and material, the cost of maintenance and upkeep must have risen, therefore the service provider is indeed entitled to increase the cost in providing services.
11.1.However, in absence of any written agreement between the parties to this effect entitling the increase periodically, the said increase could not have been unilateral. Where there is no specific agreement, the increase in services and maintenance charges ought to be with mutual consent. If the service takers are not agreeing to particular rate of charges, the service provider is free not to provide the services. In the present case, admittedly after the agreement Ex.PW2/3, there was no new agreement and admittedly there was no consent of the defendant. The cost was not increased mutually. In fact, the stand of the plaintiffs was that plaintiffs were not even required to obtain consent or willingness of the defendant. I am afraid, this stand cannot be accepted in law. It has to be a contract between the two parties whereby one party agrees to accept the services of another upon certain terms & conditions, if that contract Suit no. 57/10 Pg... 16 of 18 r
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itself is absent, there can be no liability.
11.2.Ld. counsel for the plaintiff has argued that onus to prove the issue no.4 was on the defendant. In fact, this onus has been adequately discharged since the plaintiffs witnesses admitted in the cross examination that there was no specific agreement besides Clause 14 of Ex.PW2/3. In fact, the plaintiffs witnesses also admitted that all the payments and interests on due payments were regulated by the maintenance agreement Ex PW2/3 only.
11.3.Not only that, the plaintiff failed to prove the calculation as per which the service cost was increased. PW1 admitted in his cross examination that no document has been placed on record in support of price sheet Ex.PW1/3. A bare look at Ex.PW1/3 will reveal that though this document was exhibited but it is no more than a useless piece of paper. On a plain sheet, certain figures have been typed by the plaintiff no.1 which has been signed by the PW1. Neither the basis of those figures is anywhere revealed in this document nor has any calculation sheet in support of this document been proved. The person who prepared this document did not enter into the witness box. This document has been signed by D. V. Malhotra, the signatory of the plaint as an authorised signatory of the plaintiff no.1 but he nowhere deposed that he prepared this document based on certain criteria and calculation. Thus, this document cannot be relied upon in favour of the plaintiffs.
11.4.PW1 admitted having received Ex.PW1/D1 by the plaintiff no.1 company. In this document, the defendant specifically informed the plaintiff no.1 company that there cannot be any unilateral increase in the maintenance charges without providing details. Still, no details were provided. Rather, it was claimed that consent was not required and details were not required to be Suit no. 57/10 Pg... 17 of 18 r
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provided. In such circumstances, issue no. 3 & 4 ought to be decided against the plaintiff and in favour of the defendant.
12. Issue no. 6 - As a result of decision of issue no. 3 & 4, no interest can be claimed or granted in favour of the plaintiff.
13. Relief. The suit is dismissed. No order as to cost. Decree sheet be prepared.
Announced in the open court on Dig Vinay Singh
16.02.2013. ADJ-04 (Central)
Delhi
Suit no. 57/10 Pg... 18 of 18 r