Delhi District Court
Arun Kumar Verma vs Rajesh Anand on 20 January, 2025
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In the court of Sh. Umed Singh Grewal, District Judge-
Commercial Court-02, North District
Rohini Courts, Delhi.
CS (Comm) No.: 428/2022
In the matter of:
Sh. Arun Kumar Verma
S/o Sh. Gaje Singh Verma
Prop. Of M/s Perfect Maintenance Solutions
Having its office at :
305, Surya Tower, 30, Community Centre,
Paschim Vihar, New Delhi - 110063 ..... Plaintiff
Vs
Shri Rajesh Anand
S/o Shri Jagdish Anand
R/o 178, Tagore Park, GTB Nagar,
Mukherjee Nagar, Delhi - 110009 .... Defendant
Date of Institution : 23.07.2022
Date on which arguments were concluded : 18.12.2024
Date of pronouncement of judgment : 20.01.2025
(Suit for recovery of ₹ 12,91,595/- )
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Present: Sh. Shantnu Agarwal, Ld. counsel for the plaintiff.
Sh. Wasim Firoz, Ld. counsel for defendant.
CS (COMM) No.:428/22
Arun Kumar Verma Vs Rajesh Anand Page No. 1/29
Digitally
signed by
UMED UMED
Date:
SINGH
SINGH 2025.01.20
16:43:06
+0530
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JUDGMENT:-
1. This is an ordinary suit for recovery of Rs. 12,91,595/- with pendent-lite and future interest and cost and mandatory in- junction.
2. The plaintiff provides services like management, oper- ation and maintenance of various kinds of properties like com- mercial, residential and multi storied building. M/s Ansal Prop- erty and Infrastructure Ltd. had developed service apartments known as Highway Suites in Ansal Highway Plaza Mall, Kundli, Sonipat, Haryana. The defendant and his family members had/was purchased/ alloted 16 units out of which three have al- ready been sold by them but 13 are still owned and co-borrowed by them. There was clause no. 13 in the allotment letter that the allottee/ defendant shall pay maintenance charges @ 2.5 per sq. ft. for one year from the date of offer of physical possession and after one year, as fixed by the maintenance agency. In default, he was to pay interest @ 18 % per annum. As per clause no. 26(a), the defendant had agreed to pay maintenance charges for proper upkeep and maintenance of building, operation of common ser- vices and management of common areas. Further condition in clause no. 26(b) was that in default of payment, the builder or its nominee shall be entitled to disconnect the services including electricity and water and shall have right to recovery the charges with interest @ 18 %. Clause no. 26 (c) mandates defendant to CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 2/29 Digitally signed by UMED UMED Date:
SINGH SINGH 2025.01.20 16:43:13 +0530 ~3~ deposit security amount equivalent to three months' maintenance charges, free of interest with M/s Ansal Properties and Infrastruc- ture Limited or its nominee, before occupation. The plaintiff had entered into agreement with M/s Ansal Properties and Infrastruc- ture Limited to manage and maintain the property w.e.f. 01.02.2016. Second agreement was entered on 01.02.2019 for ex-
ternal maintenance of the building including private security. An- other agreement to that effect was executed on 30.01.2019. On the strength of those agreements, the plaintiff would raise in- voices in the name of occupants/ owners for maintenance and other charges from time to time, in terms of allotment letters. The defendant had let out units to a tenant M/s Design Well Holidays Pvt. Ltd. to run hotel by way of registered lease agreement. The tenant had paid maintenance and other charges to plaintiff as per agreed terms. But after end of tenancy and handing over of pos- session of the suite to defendant in May, 2017, he stopped mak- ing payment. The plaintiff used to maintain a current running and non mutual account of the defendant in ordinary course of busi- ness in which the amount of invoices used to be mentioned in debit column and entry of payment made by defendant used to be made in the column of credit. From May, 2017 to July, 2022, as per that ledger account, the defendant is in arrear of Rs. 8,87,413/- for maintenance and other charges. Also, he did not deposit security amount of Rs. 35,636.40/- calculated @ 7.60 per sq. ft.. Mr. Rajesh Anand, for himself and his family members, CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 3/29 Digitally signed by UMED UMED SINGH SINGH Date:
2025.01.20 16:43:21 +0530 ~4~ sent a false notice dated 08.12.2018 to M/s Ansal Properties and Infrastructure Ltd. raising a false claim and it replied by the plaintiff on 29.12.2018. When the defendant did not make pay- ment of the due amount, the plaintiff served upon them a legal notice dated 01.04.2021 for payment of the principal amount with interest @ 18 % per annum within 30 days of receipt of the notice, but needful was not done. The plaintiff is claiming fol- lowing amounts:-
S. No. Particulars Amount (Rs.)
1 Arrears of Maintenance & 8,87,413.00
Fixed Electricity Charges w.e.f.
May, 2017 to July, 2022
2 Interest calculated @18% p. a. 3,68,546.00
w.e.f. May, 2017 till July, 2022
3 Security Deposit 35,636.40
Total 12,91,595.40
3. The defendant came out with the case that as per the terms and conditions of allotment letter and conveyance deed, it was the mandate that the allottee shall enter into agreement with maintenance agency. But the plaintiff never entered into any agreement with the allottees including the defendant. Rather, it is the defendant who himself is maintaining his unit since incep-
tion. He was never acquainted with the fact that plaintiff was ever nominated by M/s Ansal Property and Infrastructure Ltd. as the maintenance agency. He came to know of it only through this suit. In this regard, para nos. 26 (d) of allotment letter, and 27 CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 4/29 Digitally signed by UMED UMED SINGH SINGH Date:
2025.01.20 16:43:29 +0530 ~5~ and 28 of conveyance deed have been relied upon. It is next men- tioned that the documents placed on record by plaintiff i.e. main- tenance agreement dated 30.01.2019, also show that the mainte- nance agency was to enter into agreement with each allottee. The plaintiff has not placed on record any agreement between it and the defendant. In this regard, the reliance has been placed upon clause no. 2.1 and 2.3 of agreement dated 30.01.2019.
It is next mentioned that the plaintiff came to know of agreement dated 30.01.2019 between plaintiff and M/s Ansal Property and Infrastructure Ltd., first time only during the present proceedings as the plaintiff never disclosed about that agreement prior to filing of the case despite numerous requests. Moreover, the agreement is shown to have been executed in 2019 whereas its enforceability is shown w.e.f. 2016 which is against the principles of Indian Contract Act.
At the time of allotment, M/s Ansal Property and Infra- structure Ltd. had assured the defendant that it itself shall handle the entire maintenance and service of the Highway Suites and only upon such assurance, the defendant had agreed to purchase the unit. But the builder breached the promise, failed to maintain the units and left the defendant in lurch to maintain the premises out of his own funds.
The builder had assured that each and every unit shall remain independent with equal and undivided right in common CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 5/29 Digitally signed by UMED UMED SINGH Date:
SINGH 2025.01.20 16:43:36 +0530 ~6~ area including lobby, passage, baranda and roof etc. and so, the said area was to be kept clear of all hindrances as per memoran- dum of understanding dated 08.10.2014 executed between M/s Ansal Property and Infrastructure Ltd. and defendant. But the builder breached the promise by permitting illegal use of the suites as the same was allowed to be converted into hotel which was run by M/s Fairmount Hotels Pvt. Ltd. of which the plaintiff is the proprietor. The plaintiff and M/s Fairmount Hotels Pvt. Ltd. are sister concerns run by the same person Arun Kumar Verma as proprietor.
M/s Fairmount Pvt. Ltd. had placed number of sign boards of its hotel all around and inside the complex including the passage leading to the lobby of the apartment complex, on the outer wall of reception lobby, ground floor, inside reception lobby of ground floor etc.. It had encroached upon parking space outside the complex and thereafter no space was left for inhabi- tants to park their vehicles. The ground floor entrance i.e. main lobby had also been encroached upon by M/s Fairmount Pvt. Ltd. as it was converted into a reception counter with a big sign board in its backdrop and a huge sofa, tariff board and luggage trolleys were kept in that area. In this way, the whole common area was giving look of a hotel. Apart from it, the common passage of all three floors including the service staircase and fire staircase had been encroached by M/s Fairmount Hotels Pvt. Ltd. by placing wooden counters and chairs. Two cafeterias were being run on CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 6/29 Digitally signed by UMED UMED SINGH SINGH Date:
2025.01.20 16:43:46 +0530 ~7~ the first and second floors but as per memorandum of under- standing between builder and allottees, the area was meant for exclusive by owners and they had right to put their sign boards on the outer wall facing NH-1. These grievances compelled the defendant to contact the builder on various occasions and when no redressal was done, several mails were sent and ultimately a legal notice dated 08.12.2018 was sent and only thereafter, the present suit was filed by plaintiff in connivance with the builder.
Lastly it is mentioned that all tax invoices and ledger account statements are forged and fabricated.
4. Following issues were framed on 11.07.2024 :-
1. Whether the plaintiff is entitled to decree in the sum of Rs.
12,91,595/- as prayed for ? OPP
2. Whether the plaintiff is entitled to any interest and if so, at what rate, at what amount and for what period ? OPP
3. Whether the plaintiff is entitled to decree of mandatory in-
junction thereby directing the defendant to continue to pay the future maintenance & other charges @ Rs. 7.60 per sq. ft. or any other rate as fixed by the maintenance agency i.e. plaintiff w.e.f August, 2022 as prayed for ? OPP
4. Relief.
5. In order to prove the case, the plaintiff examined four witnesses.
CS (COMM) No.:428/22 Digitally
Arun Kumar Verma Vs Rajesh Anand Page No. 7/29 UMED UMED
signed by
SINGH
Date:
SINGH 2025.01.20
16:43:54
+0530
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6. PW1 Mr. Arun Kumar Verma is plaintiff himself and he repeated the contents of plaint in his affidavit in evidence Ex. PW1/A and relied upon following documents :-
1. Ex. PW1/1 is internet generated copy GST Certificates of M/s Perfect Maintenance Solution.
2. Ex. PW1/2 is copy of allotment letter of unit no. 306 in favour of defendant.
3. Ex. PW1/3(OSR) is copy of letter of intent dated 08.02.2016.
4. Ex. PW1/4(Colly) (OSR) is the invoice raised by MS Star Facilities Management Limited Le the subsidiary Company of M/s Ansal Properties & Infrastructure Lad towards exter- nal maintenance charges.
5. Ex. PW1/5(OSR) is the copy of Agreement dated 30.01.2019.
6. Ex. PW/1/6(Colly) (OSR) is the copy of NOC issued by plaintiff firm to the various Occupiers of the unit of the property i.e. studio apartments towards payment of mainte- nance charges.
7. Ex. PW/1/7(OSR) is the copy of Lease Agreement dated 21.11.2013 executed by the defendant in favour of M/s De- sign Well Holidays Pvt. Ltd. in respect of Unit No. 303.
8. Ex. PW1/8 is the copy of Lease Agreement dated 21.11.2015 executed by the defendant in favour of M/s Design Well Hol-
idays Pvt. Ltd. in respect of Unit No. 304.
CS (COMM) No.:428/22
Arun Kumar Verma Vs Rajesh Anand Page No. 8/29 Digitally
signed by
UMED
UMED SINGH
SINGH Date:
2025.01.20
16:45:26
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9. Ex. PW1/9 is the copy of Lease Agreement dated 21.11.2015 executed by the defendant in favour of M/s Design Well Hol- idays Pvt. Ltd. in respect of Unit No. 306.
10. Ex. PW1/10(Colly) is the Ledger Account of M/s Design Well Holidays Pvt. Ltd. maintained by plaintiff.
11. Ex. PW1/11 (Colly) (OSR) is copy of Invoices raised by plaintiff for the period 01.05.2021 till 30.06.2022.
12. Ex. PW1/12(Colly) is ledger Account of the defendant for the period 01.05.2017 till 31.07.2022.
13. Ex. PW1/13(Colly)(OSR) is the GST return of Plaintiff firm for the period October, 2017 till May, 2023.
14. Ex. PW1/14 is the Calculation Sheet showing the Outstand-
ing amount towards the maintenance and other charges.
15. Ex. PW/1/15(Colly) (OSR) is a copy of email dated 16.11.2018 along with the letter dated 16.11.2018.
16. Ex. PW1/16(Colly) is the email exchange between the par-
ties.
17. Ex. PW1/17(Colly) is the copy of reply dated 29.12.2018 along with registered AD.
18. Ex. PW-1/18(Colly) is legal Notice dated 01.04.2021 along with Postal Receipt.
19. Ex. PW1/19(Colly) is the receipt dated 07.10.2017 and clearance certificate dated 09.10.2017 in respect of unit nos. 310 issued in the name of Mr. Rajesh Anand, Karta of the defendant are Exhibited as for the period 01.05.2021 till 30.06.2022 are Exhibited as .
20. Ex. PW1/20 (Colly) is the receipt dated 16.11.2017 and clearance certificate dated 18.11.2017 in respect of unit nos.312 issued in the name of Mr. Honey Anand.
CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 9/29 Digitally signed UMED by UMED SINGH SINGH 2025.01.20 Date:
16:45:32 +0530 ~ 10 ~
21. Ex. PW1/21(Colly) is the receipt dated 16.11.2017 and clearance certificate dated 18.11.2017 in respect of unit nos. 312A issued in the name of Mr. Honey Anand (HUF).
22. Ex. PW1/22(Colly) is the email dated 30.05.2019 along with us attachments.
23. Ex. PW1/23(Colly) (OSR) is the copy of invoices raised by M/S Star Facilities Management Pvt. Ltd. in the name of 23. of plaintiff Firm towards electricity and other charges.
24. Ex. PW1/24(Colly) (OSR) is the copy of invoices raised by Mis Star Facilities Management Ltd. towards power backup charges.
25. Ex. PW1/25(Colly) (OSR) is the copy of invoices raised by M/s Red Sky Maintenance Services Pvt. Ltd. in the name of plaintiff firm towards electricity and other charges.
26. Ex. PW1/26(Colly) (OSR) is the copy of invoices towards AMC for Elevator.
27. Ex. PW1/27 is the copy of Non-Starter report certificate dated 28.06.2022.
28. Ex. PW1/28(Colly) is certificate under section 65A and B of Indian Evidence Act dated 15.07.2022 and 22.08.2024.
PW2 Mr. Amar Sah is manager of M/s Design Well Holiday Pvt. Ltd. i.e. the tenant of the defendant. He claimed au- thorisation from M/s Design Well Holidays Pvt. Ltd. for deposi- tion vide board resolution Ex. PW2/2. He filed the bank state- ment of that entity from 01.04.2016 to 31.12.2017 as Ex. PW2/3 showing the payment of maintenance charges to plaintiff.
CS (COMM) No.:428/22
Arun Kumar Verma Vs Rajesh Anand Page No. 10/29
Digitally
signed by
UMED UMED SINGH
Date:
SINGH 2025.01.20
16:45:55
+0530
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PW3 Mr. Amit Kumar Dahiya is an inspector working with GST, Sonipat and he filed the GSTR - 2A and 2B of the plaintiff from December, 2017 to August, 2024 showing the pur- chase by that firm during that period as Ex. PW3/2. The GSTR - 1, for that period is Ex. PW3/3.
PW4 Mr. F. N. Rai is working as consultant (legal) with M/s Ansal Property and Infrastructure Ltd. and he claimed that he was authorised by that company vide board resolution Ex. PW4/1 to file following documents :-
1. Ex. PW4/1 is board resolution dated 30.01.2019.
2. Ex. PW4/2 is agreement dated 30.01.2019 between plain-
tiff and M/s Ansal Property and Infrastructure Ltd..
3. Ex. PW4/3 is copy of e-mail dated 14.11.2017 sent on be-
half of M/s Ansal Property and Infrastructure Ltd. to de- fendant.
4. Ex. PW4/4 (colly) are copies of e-mail dated 02.08.2023 and 18.07.2023 exchanged between plaintiff and M/s Ansal Property and Infrastructure Ltd..
5. Ex. PW4/5 is copy of e-mail dated 30.05.2019 sent on be-
half of M/s Ansal Property and Infrastructure Ltd. to plaintiff as well as defendant.
CS (COMM) No.:428/22
Digitally
Arun Kumar Verma Vs Rajesh Anand Page No. 11/29 signed by
UMED
UMED SINGH
SINGH Date:
2025.01.20
16:46:08
+0530
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7. The defendant examined only himself as DW1 and re- peated the contents of written statement in his affidavit in evi- dence Ex. DW1/A and relied upon following documents :-
1. Ex. DW1/1 is conveyance deed.
2. Ex. DW1/2 is allotment agreement.
3. Ex. DW1/3 is copy of MOU dated 08.10.2014.
4. Ex. DW1/9 is reply letter dated 12.11.2022.
5. Mark A is copy of e-mail.
6. Mark B is copy of letter dated 12.10.2017.
7. Mark C is reply of letter dated 12.10.2017.
8. Mark D is the photograph of the properties.
9. Mark E is letter dated 12.11.2022.
Issue no. 1
8. Learned counsel for plaintiff argued that his client was appointed by the builder vide letter of intent dated 08.02.2016 and agreement dated 30.01.2019 to maintain and manage the building and external area and to receive the maintenance charges from the occupants w.e.f. 01.02.2016. He used to raise invoices in the name of occupants and enter that amount in the column of debit in the current running account maintained in or- dinary course of business. The entry of paid amount used to be CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 12/29 Digitally signed by UMED UMED Date:
SINGH SINGH 2025.01.20 16:46:16 +0530 ~ 13 ~ made in the column of credit. Such invoices for defendant were also raised from time to time. He paid maintenance charges till April, 2017 i.e. till his tenant was in occupation. When posses- sion of the property was handed over to defendant by tenant in May, 2017, he started defaulting in payment of maintenance charges. So, he is entitled to maintenance charges @ Rs. 2.5, Rs. 4, Rs. 5, Rs. 6.6 and Rs. 7.6 per sq. feet from the defendant for the financial years 2016-17, 2017-18, 2018-19, 2019-20 and 2020 - 2023, total of which comes out to Rs. 12,91,595/-. The defendant was to pay security to the builder or the maintenance agency which was to be equivalent to three months maintenance charges @ 7.60, but that amount was also not deposited and hence the plaintiff is entitled to security also.
9. Counsel for defendant argued that the plaintiff was not appointed as maintenance agency by the builder at any point of time. He tried to know from various sources and also from the builder as well as the plaintiff about the documents vide which it was appointed maintenance agency, but not a single document was ever shown to her.
He further argued that before receipt of documents of this case, the defendant was not aware that the plaintiff was a maintenance agency.
Next submission is that as per clause nos. 26 (d) of al- lotment letter and clause nos. 27 and 28 of conveyance deed, the CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 13/29 Digitally signed by UMED UMED SINGH Date: SINGH 2025.01.20 16:46:23 +0530 ~ 14 ~ maintenance agency was to enter into agreement with allottees of the units including defendant, for providing maintenance and up- keep of common area. To the same effect is the agreement dated 30.01.2019, of plaintiff with the builder. But the plaintiff never entered into agreement with the defendant for up-keeping the in- ternal as well as external area. Due to that reason, it was defen- dant himself who maintained the units and surrounding area. In the absence of any agreement with the defendant for maintaining the area, the plaintiff cannot claim any amount from him.
10. Counsel for plaintiff replied that his client was ap- pointed as maintenance agency by the builder vide letter of intent dated 08.02.2016 Ex. PW1/3 to look after the internal mainte- nance of the building and he was made liable to make payment towards external maintenance to a company namely M/s Star Fa- cilities Management Limited. The plaintiff used to provide elec- tricity services to the allottees including defendant through M/s Star Facilities and M/s Red Spy Maintenance Services Pvt. Ltd. and elevator services through M/s Kinetic Hyundai. Those agen- cies used to raise bills for which the payment used to be made by the plaintiff. He relied upon bills issued by these companies. He further submitted that GST was paid by the plaintiff for those availed services and that fact has been proved by PW3 GST In- spector.
It is next argued that the defendant had let out her units to M/s Design Well Holidays Pvt. Ltd. who remained in occupa-
CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 14/29 Digitally signed by UMED UMED Date:
SINGH SINGH 16:46:29 2025.01.20 +0530 ~ 15 ~ tion till April, 2017 and paid maintenance charges on behalf of the plaintiff. Moreover, a provision had been made in rent agree- ment by the defendant that maintenance charges shall be paid by the tenant. Next submission is that PW1 and PW4 (a witness from builder company) have proved agreement dated 30.01.2019 as Ex. PW1/5 by virtue of which external maintenance was handed over to the plaintiff and his appointment to maintain in- ternal area of the building w.e.f. 01.02.2016 was recognized by the builder.
He next referred to cross-examination of DW1 in which he had admitted that as per clause no. 26 (a) of the allot- ment letter, the maintenance agency appointed by the builder had right to maintain the building.
The counsel next argued that complaint Mark B dated 12.10.2017 was written by defendant to the builder in which it is mentioned that he had come to know on 12.10.2017 that the plaintiff was acting as maintenance agency. Next reliance is on reply Mark C by builder to the defendant intimating him that plaintiff was a maintenance agency.
It is next argued that defendant had admitted in cross- examination that the plaintiff had claimed outstanding due from him and his family members vide e-mail dated 16.11.2018 and mail communications dated 17.11.2018 also prove that the defen-
CS (COMM) No.:428/22
Arun Kumar Verma Vs Rajesh Anand Page No. 15/29
Digitally
signed by
UMED UMED SINGH
Date:
SINGH 2025.01.20
16:46:34
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dant was well aware that the plaintiff was working in the premises as maintenance agency of the builder.
Counsel for plaintiff admitted it correct that there were provisions in allotment letter, conveyance deed as well as in agreement of plaintiff with builder, dated 30.01.2019 that the maintenance agency was required to enter into agreement with allottees including defendant to provide service. But the defen- dant did not come forward to enter into such agreement. More- over, the pre-condition of entering into such agreement was pay- ment of security equivalent to three months maintenance charges which the defendant never paid and hence it is the defendant who is to be blamed for not entering into service providing agreement.
11. The plaintiff has placed on record letter of intent dated 08.02.2016 as Ex. PW1/3 vide the work of internal maintenance of the building was given to him and he was made liable to make payment towards external maintenance to a company namely M/s Star Facilities Management Limited. The letter proves that the plaintiff was provided the work of internal maintenance of the building by the builder w.e.f. 01.02.2016. The above entities used to provide facilities to the occupants for which the plaintiff used to pay to those entities. These entities had raised invoices Ex. PW1/4 (Star Facilities), Ex. PW1/23 (Star Facilities), Ex. PW1/24 (Star Facilities), Ex. PW1/25 (Red Sky Maintenance) and Ex. PW1/26 (M/s Kinetic Hyundai).
CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 16/29 Digitally signed by UMED UMED Date:
SINGH SINGH 2025.01.20 16:46:41 +0530 ~ 17 ~ PW3 Sh. Amit Kumar, Taxation Inspector, GST De- partment, Sonipat, Haryana placed on record the GSTR 2A and 2B of the plaintiff as Ex. PW3/2 for the relevant period which prove that invoices raised by M/s Star Facilities, M/s Red Sky and M/s Kinetic Hyundai are genuine and the plaintiff had paid GST for making purchase of facilities from those entities.
In cross-examination, DW1 placed on record the lease deed of unit of the present case and other cases as Ex. DW1/P1 admitting that there was a clause in those deeds that tenant was liable to pay maintenance charges in relation to common area of the building to the maintenance agency. His tenant was M/s De- sign Well Holidays Pvt. Ltd.. A witness from that entity/ tenant has been examined as PW2 who deposed that the tenant had made payment of maintenance charges of the unit of the present case and other cases to the plaintiff, during the period of tenancy. The payment has been proved by PW2 by placing on record the bank statement of the tenant as Ex. PW2/3. Payment of mainte- nance charges by the tenant of defendant to the maintenance agency shows that the plaintiff used to maintain the area during the relevant period.
A witness from builder M/s Ansal Property and Infra- structure Limited has been examined as PW4 who deposed that the builder had executed an agreement dated 30.01.2019 with the plaintiff vide which the plaintiff was appointed as the agent to CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 17/29 Digitally signed by UMED UMED SINGH Date:
SINGH 2025.01.20 16:46:48 +0530 ~ 18 ~ provide maintenance service to the area. The agreement also proves that plaintiff was maintenance agent of the building dur- ing those days.
NOCs Ex. PW1/19, Ex. PW1/20 and Ex. PW1/21 is- sued by the service provider i.e. plaintiff to the defendant and his family members at the time of sale of three units in the same building, also prove that the plaintiff had the responsibility of maintaining the building.
Moreover, it has been deposed by PW1 in cross-exami- nation dated 31.08.2024 that he had entered into maintenance agreement with occupants/ allottees of 44 units in studio apart- ments, Ansal Plaza. Such agreement with so many allottees shows that defendant definitely would have become aware that the plaintiff used to maintain the area.
The defendant admitted in cross-examination that the plaintiff had claimed maintenance charges from him by sending mails Ex. PW1/15 and Ex. PW1/16. The defendant had autho- rised a person namely Mr. Dahiya to note down the detail of out- standing maintenance charges. That kind of cross-examination also shows that the defendant was well aware that the mainte- nance agent was the plaintiff and nobody else.
12. The defendant had sent a complaint Mark B dated 12.10.2017 to the builder to the effect that the plaintiff was claiming unreasonably high maintenance charges. In cross-exam-
CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 18/29 Digitally signed by UMED UMED SINGH Date:
SINGH 2025.01.20 16:46:55 +0530 ~ 19 ~ ination, the defendant admitted that he had written that complaint to the builder. It shows that defendant was well aware atleast from the date of complaint i.e. from 12.10.2017 that the units were being maintained and managed by plaintiff.
In response, the builder had sent reply mail Mark C dated 14.11.2017 to the defendant intimating about the nomina- tion of plaintiff as maintenance agency. That reply had also made defendant aware about the status of plaintiff as maintenance agent. Moreover, defendant admitted in cross-examination that after receipt of reply mail Mark C, he became informed by the builder that the plaintiff had been duly nominated as maintenance agency to maintain the common area of the building.
13. The defendant admitted in cross-examination that plaintiff had sent mail dated 16.11.2018 Ex. PW1/15 demanding maintenance charges from him and his family members. He fur-
ther admitted that he had authorised a person namely Mr. Dahiya to collect from plaintiff the detail of outstanding dues. The de- tailed conversation between the parties vide mails dated 17.11.2018 timed at 04:59 PM, dated 17.11.2018 timed at 06:59 PM, dated 17.11.2018 timed at 02:35 PM, dated 21.11.2018 timed at 07:25 PM and dated 28.11.2018 timed at 07:11 PM, (collectively) Ex. PW1/16 also shows that the defendant was well aware that it was plaintiff who used to maintain and manage the area.
CS (COMM) No.:428/22
Arun Kumar Verma Vs Rajesh Anand Page No. 19/29
Digitally
signed by
UMED
UMED SINGH
SINGH Date:
2025.01.20
16:47:02
+0530
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The defendant admitted in cross-examination that no- body except plaintiff had demanded maintenance charges from him. In the beginning, the plaintiff had entered into agreement with the builder that for the first year, he would pay to builder the maintenance charges @ Rs. 2.5 and thereafter, he would pay such charges either to the builder or to any other maintenance agency appointed by the builder. Such charges were never demanded from plaintiff by the builder. These were demanded from him only by plaintiff and it shows that it was only the plaintiff who used to maintain the area and the defendant was well aware of that fact.
14. It has been argued by the counsel for defendant that as per the allotment letter, conveyance deed and agreement of the plaintiff with the builder, it was necessary that the plaintiff was to enter into agreement with the allottees including the defendant for maintaining their properties. In that background, it is neces- sary to go through the clauses of allotment letter, conveyance deed and agreement dated 30.01.2019 qua agreement and pay- ment of maintenance charges.
Allotment Letter "13. That the Allottee hereby unconditionally undertakes and agrees to make the payment of maintenance charges @ Rs. 2.50/- per square feet for one year from the date of of- fer physical possession and after one year as fixed by the CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 20/29 Digitally signed by UMED UMED Date:
SINGH SINGH 2025.01.20 16:47:09 +0530 ~ 21 ~ maintenance agency. In the event of failure, the Allottee hereby unconditionally undertakes to pay the maintenance charges, and the interest @ 18% P.A .on the amount due.
26 (a.) That the entire maintenance, upkeep and preserva-
tion of the building. operation of the common services and management of the common areas shall be done by the COMPANY or its nominee(s) on the terms & conditions mentioned herein. Unless agreed to separately, the Allot- tee(s) agrees to pay maintenance charges required for the proper upkeep and maintenance of necessary equipment in the building that shall be calculated at the relevant time and apportioned on the area of the Unit. This money shall be utilized by the COMPANY or its nominee for the com- mon services. The person or the agency responsible for the maintenance shall be treated as being in management of the building. ...
(b) In case of default of payment of the aforesaid charges, the COMPANY or its nominee shall be entitled to discon- tinue/disconnect the services including Electricity and wa- ter to the Unit apart from the right to recover the charges with interest @ 18% from the Allotter and/or from the oc- cupier of the Unit from out of the rent payable to the Allot- tee through the process of law.
(c) Before the occupation of the Unit, the Allottee agrees to deposit security deposit equivalent to three months mainte- nance charges (Rs. 7.50/- Per Sq.Ft.) free of interest with CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 21/29 Digitally signed by UMED UMED Date:
SINGH SINGH 2025.01.20 16:47:16 +0530 ~ 22 ~ the COMPANY or its nominee for timely payment of the aforesaid charges. Allottee(s) also agree to pay charges of electric meter and Power backup meter of Rs 25000/- as installation charges at the time of offer of physical posses- sion.
(d) The Allottee(s) shall also enter into an agreement with the maintenance agency as per the standard maintenance agreement of the agency."
Conveyance Deed dated 04.02.2016 "27. That the Vendor and for its nominee Maintenance Agency shall look after the maintenance and upkeep of the common area and facilities in the complex and the vendee hereby agreed to enter into separate Maintenance agree- ment with maintenance agency and pay maintenance charges, security deposit, contribution towards sinking /re- placement fund as may be demanded by the Maintenance agency or Vendor, the activities and responsibilities shall be transferred and hand over the same to any Authority or a Body/Association of the Said Studio Apartment Owners in terms of the Haryana Studio Apartment Ownership Act 1983 as may be applicable.
28. That the vendee shall be under obligation and shall be bound to execute a separate Maintenance Agreement with the Vendor and/or the Maintenance Agency, if not already executed, with regard to terms and condition of mainte- nance of the scheme and shall be bound by the rules & reg-
CS (COMM) No.:428/22
Arun Kumar Verma Vs Rajesh Anand Page No. 22/29
Digitally
signed by
UMED UMED SINGH
Date:
SINGH 2025.01.20
16:47:24
+0530
~ 23 ~
ulations of the Maintenance Agency. The said Maintenance Agreement shall, inter alia, define the scope of mainte- nance of various services & facilities in the scheme and the charges payable by the vendee in respect thereof."
Agreement Dated 30.01.2019 "2.1 The property manager, shall do all that is necessary and required to maintain-end safeguard the property, in- cluding operation and maintenance of entire common areas and equipment. For this purpose, the property manager will enter into necessary contracts with specialized agen- cies for the upkeep of the property equipment, security and maintenance as they deem fit. All such contracts and agree- ments shall be at the risk and cost of the property manager, provided that the property manager shall be liable in case of any omission or negligence by such specialized agencies and shall be liable to indemnify the First Party for all such losses or harm, which the First Party suffers or incurs due to such omission and/or negligence in all eventualities.
2.3 The property Manager shall enter into a separate con- tract with the occupants of the property who may either be owners/ Lessee/ Sub-Lessee or tenants. Ansals would be re- quired to intimate all individual occupants to enter into a separate maintenance agreement with property manager, under the said agreement, the property manager shall be responsible to provide all services as mentioned in the scope of work to the occupants of property.
CS (COMM) No.:428/22
Arun Kumar Verma Vs Rajesh Anand Page No. 23/29
Digitally
signed by
UMED
UMED SINGH
SINGH Date:
2025.01.20
16:47:30
+0530
~ 24 ~
6.1 The property manager will be entitled to recover the maintenance charges Rs. 2.50 per Sq.ft. per month for the areas occupied by the occupants directly for period of 01.01.2016 to 31.12.2016 from 01.01.2017 the mainte- nance charges after one year as fixed by the maintenance agency. In the event of failure, the property manager has right to collect maintenance charges and the interest @ 18% P.A. on the amount due. It shall be the responsibility of the respective occupant to make direct payment regard- ing all the statutory outgoings. However, coordination of the same will be done by the property manager. The prop- erty manager may also collect security deposit equal to 3 months maintenance charges free of interest form these oc- cupants and after completion of the contract tenure the se- curity deposit will be handed over to Ansal Properties & Infrastructure Ltd.."
15. Vide above clause no. 13 of the allotment letter, the de- fendant had unconditionally undertaken and agreed to make pay- ment of maintenance charges @ Rs. 2.5 per sq. ft. for one year from the date of offer of physical possession to the builder. In the event of failure, he had unconditionally undertaken to pay main- tenance charges with interest @ 18 % per annum.
It is mentioned in clause no. 26 (a) of the allotment let- ter that maintenance of the complex shall be done by the builder or its nominee and the allottee/ defendant had agreed to pay CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 24/29 Digitally signed by UMED UMED SINGH Date:
SINGH 2025.01.20 16:47:36 +0530 ~ 25 ~ maintenance charges to them. It is mentioned in clause 26 (b) that in case of default of payment of maintenance charges, the defen- dant shall pay interest @ 18%. As per clause 26 (c), the defen- dant had agreed to deposit security equivalent to three months' maintenance charges (@ Rs. 7.5 per sq. ft.) with the builder or its nominee for timely payment of the charges. Vide clause 26(d), the defendant had undertaken to enter into an agreement with the maintenance agency as per standard maintenance agreement of the agency. Vide clause 27 of the conveyance deed, the defendant had agreed to enter into separate agreement with the maintenance agency. It is mentioned in clause no. 28 that the defendant was under obligation and shall be bound to execute a separate mainte- nance agreement with the vendor or maintenance agency.
It is the claim of the plaintiff that he had entered into agreement Ex. PW1/5 dated 30.01.2019 with the builder for maintaining internal as well as external area. Clause no. 2.3 of that agreement casts obligation upon the plaintiff to enter into a separate contract with the occupant of the property who may be owner/ lessee, sub-lessee/ tenant. As per clause 6.1, the plaintiff is entitled to recover maintenance charges @ 2.5 per sq. ft. from the defendant for the period from 01.01.2016 to 31.12.2016 and from 01.01.2017 onwards, the maintenance charges were to be decided by the maintenance agency.
16. So, as per the allotment letter and conveyance deed, duty was cast upon the defendant to enter into agreement with the CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 25/29 Digitally signed by UMED UMED SINGH SINGH Date:
2025.01.20 16:47:43 +0530 ~ 26 ~ maintenance agency regarding maintenance of internal as well as external area. Similar duty was cast upon plaintiff by agreement dated 30.01.2019 Ex. PW1/5. It is the admitted position of both parties that there was no agreement between them for providing maintenance services. The reason of absence of such agreement disclosed by the plaintiff's counsel is that the pre-condition was payment of security by defendant which he did not pay and hence the agreement could not be executed. On the other hand, it is the contention of the counsel for defendant that his client was never aware that plaintiff was the maintenance agency.
It is neither mentioned in allotment letter nor con- veyance deed or agreement dated 30.01.2019 that before execu- tion of maintenance agreement, it was mandatory for the defen- dant to deposit interest from security. Rather the clause 26 (c) of the allotment letter is merely to the effect that the security was to be deposited before occupation of the unit. So, deposit of security amount was never the pre-condition for execution of mainte- nance agreement and hence the reason of absence of such agree- ment as told by plaintiff is absurd. Still, the fact of the matter is that there was no maintenance agreement between plaintiff and defendant.
17. But it becomes clear from above clauses that the defen- dant had agreed with the builder to pay maintenance charges @ Rs. 2.5 per sq. ft. for the first year from 01.01.2016 to 01.01.2017. Simultaneously, he had undertaken to enter into CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 26/29 Digitally signed by UMED UMED Date:
SINGH SINGH 2025.01.20 16:47:49 +0530 ~ 27 ~ agreement for the subsequent period with the maintenance agency. Maintenance charges for the subsequent years cannot be said to be less than Rs. 2.5 per sq. ft. due to inflation. For the first year, the defendant had agreed to pay maintenance charges @ Rs.
2.5 per sq. ft. per month. He had instructed his tenant, while exe- cuting rent agreements, to pay maintenance charges to the agency. It is well proved on record that the defendant's tenant paid such charges to the plaintiff. Hence it can be presumed that for the subsequent years i.e. from 01.01.2017 till July, 2022 also, the defendant had agreed to pay maintenance charges atleast @ Rs. 2.5 per sq. ft. per month. The area of one unit is 521 sq. mtr.. The plaintiff is claiming maintenance from May, 2017 to July, 2022 i.e. for 62 months and it comes out to Rs. 2.5 x 521 sq. feet x 62 months = Rs. 80,755/- for one unit and for three units, the amount comes out to Rs. 80,755 x 3 units = Rs. 2,42,265/-.
18. The plaintiff is claiming security amount also equiva- lent to three months maintenance charges i.e. @ Rs. 7.5 per sq. ft.
As per clause 26 (c) of the allotment letter, the security was to be paid before occupation of the unit. It is mentioned in clause 11 of the allotment letter that physical possession was pro- posed to be delivered by 15.05.2015. As per clause 6 of the con- veyance deed dated 04.02.2016, the actual vacant possession of the apartment had already been handed over to the vendor. So, the vendor/ defendant had come into occupation of the unit atleast on the date of conveyance deed i.e. 04.02.2016. He was CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 27/29 Digitally signed by UMED UMED Date:
SINGH SINGH 2025.01.20 16:47:55 +0530 ~ 28 ~ required to pay security before that day which he did not. The pe- riod of limitation for filing suit for recovery of security amount is three years. If that period is counted from the date of conveyance deed i.e. 04.02.2016, it had come to an end on 08.02.2019. The suit was filed on 23.07.2022 and hence it is barred by period of limitation, for recovery of security amount. The plaintiff is not entitled to security amount.
Issue no. 2
19. In allotment letter, the defendant had agreed to pay in- terest @ 18 % per annum to the builder for the first year of occu- pation of the unit, if he do not pay the maintenance charges on time. For subsequent period, there is no agreement to that effect. But taking into account the fact that transactions between the par- ties were commercial in nature, interest @ 6 % shall do the jus- tice and accordingly it is granted to the plaintiff.
As held earlier, the plaintiff is entitled to maintenance charges from May, 2017 to July, 2022 i.e. for 62 months. The charges for a particular month were payable in the next month. So, plaintiff is entitled to interest for every monthly maintenance charges @ 6 % from the date the same became due, till realisa- tion.
Issue no. 3
20. It is the admitted position that there is no agreement between the parties for payment of maintenance charges. As per CS (COMM) No.:428/22 Arun Kumar Verma Vs Rajesh Anand Page No. 28/29 Digitally signed by UMED UMED Date:
SINGH SINGH 2025.01.20 16:48:03 +0530 ~ 29 ~ clause no. 28 (a) of the conveyance deed the maintenance agree- ment shall, inter-alia, define the scope of maintenance of various services and facilities in the scheme and the charges payable by the vendee (defendant) in respect thereof. The plaintiff wants this court to pass decree of mandatory injunction directing the defen- dant to continue to pay maintenance charges @ Rs. 7.6 per sq. ft.. But in the absence of agreement between parties to that effect, this court cannot write such agreement between them. So, this is- sue is decided in favour of defendant and against plaintiff.
Issue no. 4
21. Consequent to decision on above issues, it is held that plaintiff is entitled to principal amount of Rs. 80,755/- x 3 = Rs. 2,42,265/-. from defendant. Plaintiff is also entitled to interest for every monthly maintenance charges @ 6 % from the date the same became due, till realisation with cost.
Decree be prepared and file be consigned to record room after necessary compliance.
Announced in open court on 20th day of January, 2025 UMED Digitally signed by UMED SINGH SINGH Date: 2025.01.20 16:48:10 +0530 (UMED SINGH GREWAL) District Judge-Commercial Court-2 North District, Delhi.
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