Delhi District Court
Ardee Mall Maintenance Services Pvt Ltd vs Purshottam Sarup Aggarwal Huf on 23 December, 2024
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IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02, NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI
CNR NO. : DLND010011032022
CS (COMM.) /157/2022
IN THE MATTER OF:-
ARDEE MALL MAINTENANCE SERVICES PVT. LTD.
HAVING ITS PRINCIPAL OFFICE AT -
GOPAL DAS BHAWAN, 16TH FLOOR 28,
BARAKHAMBA ROAD, NEW DELHI-110001.
THROUGH AUTHORIZED REPRESENTATIVE
MR. CHANDJI BHAT
Email: [email protected], [email protected]
Ph. No. 9717473813, 011-45766700
...PLAINTIFF
VERSUS
PURSHOTTAM SARUP AGGARWAL HUF
(THOUGH ITS KARTA VARUN AGARWAL)
BRAND NOT JUST PARANTHAS/MAACHIS
HAVING ITS CORPORATE OFFICE AT-
M-87, FIRST FLOOR, CONNAUGHT CIRCUS,
BESIDES - HOTEL BRIGHT, CONNAUGHT PLACE,
NEW DELHI-110001.
ALSO AT -
C-42, PANCHSHEEL ENCLAVE NEW DELHI-110017.
MOB: 9811636780, 9311044510
Emails: [email protected],[email protected],
[email protected], [email protected]
...DEFENDANT
Date of Institution : 07-02-2022
Date of reserving Judgment : 12-11-2024
CS (COMM.) /157/2022 Page 1 of 55
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Date of pronouncement of Judgment : 23-12-2024
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of Rs.30,35,685/- on account of arrears of Common Area Maintenance [hereinafter referred to as 'CAM'] and Utility Charges along with pendent-lite and future interest, filed by the plaintiff against the defendant.
FACTS OF THE CASE:
2. Brief relevant facts, as culled out from the pleadings of the parties and documents, as are necessary for the disposal of the present suit, are as under: -
2.1 The plaintiff, which is stated to be a private limited company having its registered and principal office at Dr. Gopal Das Bhawan, 28, Barakhamba Road, New Delhi-110001, got instituted the present suit through Sh. Chandji Bhat, who is statedly authorized by virtue of Board Resolution dated 25.1.2022 in this regard.
2.2 The plaintiff is engaged in providing the maintenance services and other utilities services like PNG Gas, water, electricity at Ardee Mall, Gurugram, Haryana.
2.3 The defendant is operating the commercial premises for its trade and commerce for running the restaurant CS (COMM.) /157/2022 Page 2 of 55 -3- and eating house under the brand name " not JUST Paranthas/Maachis" at Ardee Mall, Sector-22, Gurugram, Haryana. It is stated that the defendant is a well-known brand of Restaurant in Delhi & NCR, which operates and controls from its principle office i.e. corporate office situated at M-87, Connaught Place, New Delhi.
2.4 It is further stated that the defendant had desire to open a restaurant at Ardee Mall, Gurugram and for this, request for providing the Common Area Maintenance (CAM) & Utilities services were made by defendant to the plaintiff at its office at Barakhamba Road, New Delhi.
2.5 It is averred that Ardee Infrastructure Pvt. Ltd., which had constructed the Ardee Mall (associate company of the plaintiff), had signed the lease agreement as Confirming Party at New Delhi and had handed over to the defendant for its registration by the owner of the premises.
2.6 Thus, it is stated that parties to the suit entered into an agreement, whereby the plaintiff company agreed to provide Common Area Maintenance & Utilities services to the defendant. It is stated that maintenance charges were fixed and accepted @ Rs.30/- per sq. ft. per month. The defendant was liable to pay Rs.1,03,043/-, besides GST per month CS (COMM.) /157/2022 Page 3 of 55 -4- as CAM and Utility charges till the date of occupation of the demised premises. The defendant paid the CAM charges of Rs.1,02,169/- per month till January 2020 through the Account Payee cheques of Yes Bank, Janpath branch, New Delhi.
2.7 It is further averred that the defendant sought concession in payment of CAM charges, vide letter dated 19.03.2020, which could not be materialized between the parties.
2.8 It is alleged that the defendant is in arrears of such maintenance and Utility charges (CAM charges) since February,2020 till January, 2022. It is stated that a sum of Rs.23,80,714/- is due on account of CAM charges, a sum of Rs.2,85,310/- is due on account of interest calculated @ 12% per annum, and further, a sum of Rs.3,69,661/- is due on account of Utility charges towards the defendant till January, 2022.In this manner, the plaintiff has claimed that the defendant is liable to pay a total amount of Rs.30,35,685/- to the plaintiff company.
The plaintiff has provided detailed calculation in Para no. 10 of the plaint.
2.9 It is stated that invoices were raised from the Principal Office of the plaintiff and the same were distributed/given to the defendant.
2.10 It is further the case of the plaintiff that invoices CS (COMM.) /157/2022 Page 4 of 55 -5- were raised upon the defendant, but, the defendant failed to pay the outstanding dues and charges despite assurance to pay the same, vide e-mail dated 14.03.2020. The plaintiff sent an e-mail dated 09.07.2020 to the defendant, thereby raising demand for payment of the aforesaid amount due and payable by the defendant but to no effect. Hence, the present suit has been filed.
3. Summons of the suit were issued to the defendant in terms of relevant orders passed by Ld. Predecessor of this Court. The defendant put its appearance through its counsel and filed written statement contesting the suit on various grounds.
4. In its written statement, the defendant has taken various preliminary objections and stated as under:-
4.1 That the plaintiff has deliberately and with a malafide intention, suppressed from this Court that a Commercial suit bearing No. 8/2021, instituted much prior to the present suit, is already pending adjudication before the Court of Ld. Civil Judge (Junior Division), Gurugram District Courts, Haryana, on the same lis and cause of action for which the plaintiff herein has filed the present suit.The said commercial suit has been filed by the defendant herein, inter alia, praying in respect of the amounts due and payable by the landlord and the CS (COMM.) /157/2022 Page 5 of 55 -6- Ardee Mall agencies to the defendant herein, in respect of the 'lease agreement' dated 12.05.2019.
The summons have already been issued to the parties in the said suit, including the Mall agencies and is now listed for further proceedings on 05.05.2022.
4.2 The subject matter of the said previously instituted suit, pending before the Court of Civil Judge, Gurugram District Courts, Haryana and the present suit, arise out of the same cause of action, i.e. the lease agreement dated 12.05.2019, entered into between the owner/landlord [M/s Ashok Kumar Mehra & Sons (HUF)], the defendant herein and the Mall Agencies i.e. Ardee Infrastructure Private Limited (admittedly forming part of the Ardee Group to which the plaintiff company herein also belongs to). It is also stated that the plaintiff herein and the said Ardee Infrastructure Private Limited are owned and controlled by the same persons and are infact one; which is also evident from the fact that the Directors and Shareholders of both the said companies have been the same group of people, throughout the years. Thus, it is stated that the present case is a fit case which requires lifting and piercing of 'corporate veil' to unearth the evident and apparent fact that both the plaintiff company and Ardee Infrastructure Private Limited are actually CS (COMM.) /157/2022 Page 6 of 55 -7- same companies, owned and controlled by the same group of persons. The plaintiff herein is trying to mislead the Court and is playing a fraud on the Court just to thwart the legal rights of the defendant as are already under adjudication before the Courts at Gurugram, Haryana.
4.3 The lease agreement dated 12.05.2019 also clearly stipulates in Para 5.1, that said Ardee Infrastructure Private Limited (Developer) will undertake maintenance through its nominated agency, clearly shows that infact, both the plaintiff and the said Ardee Infrastructure Private Limited are same and the present suit has been filed by the plaintiff with mala fide Intentions to harass the defendant.The present suit is clearly an abuse of process of law, by which the plaintiff is trying to not only defeat the legal rights of the defendant, but is also playing fraud upon the Court, by suppressing such material facts. Without prejudice to the above contentions,it is stated that in fact Para 5.1 of the lease clearly shows that the maintenance was being undertaken by the said Ardee Infrastructure Private Limited only. Even the plaintiff itself is claiming it to be a part of the Ardee Group, being an associate company of Ardee Infrastructure Private Limited. In any case, it is also submitted that for all purposes, the representatives of the Mall agencies dealing with CS (COMM.) /157/2022 Page 7 of 55 -8- the defendant always represented themselves as representatives of the complete Ardee Group; the operations and management of both the said Companies are undertaken under one roof and by same persons, there is no such separation of entities in real life day to day operations of both the said Companies i.e. the plaintiff herein and Ardee Infrastructure Private Limited. Even the companies registered office is at the same place.
4.4 In view of the fact that the present suit and the said previously instituted pending suit arise out of the same cause of action, there is every chance of conflicting judgments being passed, therefore also, the present suit is liable to be dismissed.
4.5 It is also stated that the plaintiff is liable to be punished for the offence of perjury, in as much as, the plaintiff has specifically stated on oath in Para 16 of the plaint, that no similar suit is pending in any court or had been previously instituted and that the plaintiff has not suppressed any facts in the plaint, whereas admittedly the correct facts are otherwise, as detailed above.
4.6 Without prejudice to the above contentions, it is stated that there is no privity of contract between the plaintiff company and the defendant. There exists no agreement or contract between the parties herein.
CS (COMM.) /157/2022 Page 8 of 55 -9-For all purposes, during the complete period, it was Ardee Infrastructure Private Limited who was dealing with the defendant. There is no due whatsoever of the defendant payable to the plaintiff.
4.7 Further, it is stated in the plaint itself that the said month to month tenancy already stood terminated in the month of March 2020 and the complete amount due till the month of February 2020 already stood paid, therefore, the defendant is not liable to pay any amount to the plaintiff towards alleged maintenance and as such, no cause of action has arisen in favour of the plaintiff and against the defendant. It is further stated that after the termination of the month to month tenancy, the defendant had already surrendered the premises to the landlord and had offered the possession to the landlord, however with mala fide intention and in connivance with the landlord, the defendant was not allowed to take out its materials worth lakhs of rupees from the leased premises, including the storage area provided in the basement, on several dates and occasions, including 07.07.2020, 09.07.2020, etc., which continued to be illegally retained by the landlord and Mall. In fact, the Mall Agencies themselves cut the electricity of the leased premises on 24.03.2020, since when the defendant has not used the leased premises. Therefore, it is stated that the neither any amount is CS (COMM.) /157/2022 Page 9 of 55 -10- due, nor payable by the defendant to the plaintiff.
4.8 The present suit is also liable to be rejected and dismissed for non-joinder of necessary party i.e. the owner of the leased premises, who has purchased the leased premises from the Mall Agencies. It is submitted that since the month to month lease has admittedly been terminated and possession surrendered, therefore, the liability to pay any amount since March 2020, is that of the landlord, who is now in possession and occupation of the leased premises, but very conveniently and as a deliberate and malafide act, is not made a party to the present suit. The defendant was only a tenant in the premises, which has admittedly surrendered the possession, and therefore, there is no question of any liability of the defendant.
4.9 The present suit is nothing but a counter blast to the previously instituted already pending suit as filed by the defendant herein. The present suit has only been filed with a malafide intention to harass the defendant herein and to defeat its legal rights, as being adjudicated in the said previously instituted pending suit bearing No. 8/2021.
4.10 This Court lacks territorial jurisdiction to try and entertain the present suit as no cause of action has arisen within the territorial jurisdiction of this Court.
CS (COMM.) /157/2022 Page 10 of 55 -11-The complete transaction between the parties had happened in Gurugram, Haryana and even the property in relation to which the alleged amounts are being claimed, is also admittedly situated in Gurugram, Haryana. Moreover, even the lease agreement, which forms basis of the cause of action, even in the present suit, clearly specifies that only Courts at Gurugram, Haryana, will have exclusive jurisdiction to try and entertain any dispute which may arise out of the or in connection with the terms of the lease deed.
4.11 Without prejudice to the above contentions, it is stated that infact, the defendant is not liable to pay any amount towards maintenance, since there were no services which were being provided. The various problems with the alleged services being faced by the defendant and similar tenants (restaurant owners) of the 3rd Floor of the Mall, including, no air-conditioning services on the 3rd and 4th Floor of the Mall, non- maintained washrooms, charging of huge arbitrary amounts towards electricity charges, for non launching of mall, no branding, etc., were duly conveyed,vide various letters/ emails including, ones, dated 21.09.2019.Since literally no services were being provided to the defendant by the Mall Agencies/ Management, therefore, the defendant is/ was not liable to pay any amount to the plaintiff or CS (COMM.) /157/2022 Page 11 of 55 -12- the Mall.
5. Likewise, in 'Reply on Merits', the defendant has denied and controverted the averments made in the plaint. Besides other, it is also denied that the defendant is operating and running a restaurant and eating house under the brand name "not JUST Parathas/ Maachis" at Ardee Mall, Sector 52, Gurugram, Haryana.
6. It is stated that the month to month tenancy between the landlord had admittedly been terminated in March, 2020, as stated in the plaint itself and the defendant had already surrendered/ vacated the premises and offered possession to the landlord, who is now in possession and use thereof, therefore the question of liability to pay any maintenance for further period does not arise. Based on all the aforesaid contentions, the defendant has prayed for dismissal of the present suit.
7. The plaintiff filed replication to the written statement, thereby denying and controverting the averments made in the written statement, while affirming the averments made in the plaint. In replication, it is denied by the plaintiff that the plaintiff had any knowledge about the pending Commercial Suit No.08/2021 at Gurugram Civil Court before filing of the present suit while submitting that the said commercial suit has not been filed against the plaintiff. The present suit was filed on 10-2-2022 and the defendant through his counsel appeared before this Court CS (COMM.) /157/2022 Page 12 of 55 -13- on 23-3-2022 but did not apprise the Court or the plaintiff or its counsel about the pendency of any suit associated with this matter at Court of Gurugram. However, a summon was received on 06-4-2022 by M/s Ardee Infrastructure Private Limited, wherein, the plaintiff is not a party in the said commercial suit titled as 'PS Agarwal v. Ashok Kumar Mehra'. It is stated that the plaintiff company and the defendant no.2 in the said suit are two separate legal entities running as per the law and having different directors.It is also denied that both the companies are controlled by the same directors while stating that both the companies are having separate directors. It is reaffirmed that Ardee Infrastructure Pvt. Ltd. had signed the lease agreement as a confirming party at New Delhi office and handed over to the defendant for its registration but the defendant had not shared the signed copy of lease deed with the maintenance office, however, the plaintiff has been assigned for maintenance at Ardee Mall.
ISSUES:
8. From pleadings of the parties, the following issues were framed, vide order dated 04.05.2024, passed by this Court:-
(1) Whether this Court lacks territorial jurisdiction to entertain and try the present suit.If so, to what effect? OPD.
(2) Whether there was no privity of contract CS (COMM.) /157/2022 Page 13 of 55 -14- between the plaintiff and the defendant.If so, to what effect? OPD.
(3) Whether the suit is bad for non-joinder of necessary party i.e. owner of the leased premises.If so, to what effect? OPD (4) Whether the defendant did not avail requisite services and was not liable to pay 'Common Area Maintenance' (CAM) charges and other misc.
charges, in view of preliminary objection no.14 of the Written Statement? OPD (5) Whether the plaintiff is entitled to recover Rs.30,35,685/- from the defendant? OPP.
(6) Whether plaintiff is entitled to order directing the defendant to pay the regular maintenance charges from the month of January, 2022 till the occupancy period of leases premises? OPP (7) Whether plaintiff is entitled to recover interest from the defendant?If yes, then at what rate of interest and for which period? OPP (8) Relief.
9. It may be noted that after framing the issues, while exercising the power conferred under Order XVA Rule 6(o) and (p) CPC, the Court had directed that the evidence shall be recorded by Ld. Local Commissioner on commission basis, vide order dated 04-05-2024, passed by CS (COMM.) /157/2022 Page 14 of 55 -15- this Court. Accordingly, both the parties were directed to lead their respective evidence before Ld. Local Commissioner, in terms of the timeline/ scheduled framed therein. In pursuant thereto, both the parties led their respective evidence before Ld. Local Commissioner.
10. In support of its case, the plaintiff has examined only one witness namely Sh. Chandji Bhat i.e. its AR, who led his examination-in-chief by way of affidavit (Ex.PW1/A) and deposed in terms of the averments made in the plaint. He has relied upon the following documents:-
Sr. Details of documents Exhibit
No.
1. Copy of Board Resolution dated Ex.PW1/1
25.1.2022
2. E-mail dated 19.3.2020 of the Ex.PW1/2
defendant with attachment
3. E-mail dated 14.3.2020 of the Ex.PW1/3
defendant
4. E-mail dated 23.06.2020 of the Ex.PW1/4
defendant with attachment
5. E-mail dated 07.07.2020 of the Ex.PW1/5
defendant to the owner of the
premises with attachment
6. Demand letter dated 09.07.2020 of Ex.PW1/6
the plaintiff
7. Photocopies of the cheques issued Ex.PW1/7
by the defendant which were duly
encashed
8. Statement of Bank account of the Ex.PW1/8
plaintiff's bank
CS (COMM.) /157/2022 Page 15 of 55
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Sr. Details of documents Exhibit
No.
9. Copy of Ledger Account of the Ex.PW1/9
plaintiff
10. Copy of emails with attached Ex.PW1/10
invoices issued by the plaintiff
from February, 2020 to December,
2021
11. Copy of the Master Data Ex.PW1/11
maintained by the Registrar of the
Company in respect of the plaintiff
company
12. Pre-institution mediation report Ex.PW1/12
dated 01.2.2022
13. Certificate u/s 65B of Indian Ex.PW1/13
Evidence Act in respect of
e-documents
11. PW-1 was cross-examined at length. In his
cross-examination, PW1 has stated that the Statement of Truth (Ex.PW-1/D1) annexed with the plaint has been signed by him and on seeing the same, which runs into 3 pages, he stated that the same bears his signatures on each page and he had signed the same on 05.02.2022 at his office in Gopal Das Bhawan, Connaught Place, New Delhi. No Advocate was present when he had signed Ex.PW-1/D1. Similarly, he stated that he had read Ex.PW-1/13 when he had signed the same on 05.02.2022 at his said office and no Advocate was present at that time. Similarly, he stated in respect of Ex.PW-1/D2 that he had read Ex.PW-1/D2 when he had signed the same on CS (COMM.) /157/2022 Page 16 of 55 -17- 05.02.2022 at his said office and no Advocate was present at that time. He further stated that he had signed Ex.PW-1/D2 on behalf of the plaintiff Company and not on behalf of Gopal Das Estates and Housing Pvt. Ltd.
12. The printouts of Ex.PW-1/1 to Ex.PW-1/13 were taken either by him or by the computer operator. He did not remember exactly as to who had taken out the printouts of which document out of Ex.PW-1/1 to Ex.PW-1/13. The printouts were taken at his office in Gopal Das Bhawan, Cannaught Place, New Delhi. He did not exactly remember as to when these printouts were taken may be on 05.02.2022. He did not remember the make of the computer in which these documents were stored. The printer HP 1020 was used in taking out the prints. The computer and the printer are under the lock and key, and security of the plaintiff company.
13. He did not remember whether any agreement either with the defendant or with anyone else has been placed on record or not. There is no agreement between the plaintiff company and the defendant for providing any services in respect of the suit premises. The plaintiff company had entered into an agreement with M/s Night Watchman Security Pvt. Ltd. for security purposes; Express House Keeping Services Pvt. Ltd. for providing the cleaning, etc. and with M/s D.C. Technical Pvt. Ltd. for providing all technical services, like lift operator, etc. for the entire Mall.
CS (COMM.) /157/2022 Page 17 of 55 -18-14. He was not aware of any contract for maintenance between the plaintiff and Sh. Ajay Mehra or M/s Ardee Infrastructure Pvt. Ltd. He denied the suggestion that the defendant is a tenant under Sh. Ajay Mehra. He voluntarily stated that the defendant is a tenant under M/s Ashok Mehra and Sons HUF. He was not aware that the amount paid by the defendant to the plaintiff company was under
the instructions of Sh. Ajay Mehra, who represents M/s Ashok Mehra and Sons HUF. At present, no one is paying the maintenance charges in respect of the said premises. In respect of the shops, which are lying vacant, the person who had taken those shops owner pays the maintenance charges.
15. PW1 further deposed that he had not filed any document relating to title of the shop in question. The plaintiff company is not the owner of the shop in question. He had not filed any authority, which authorizes the plaintiff company to collect the maintenance charges from the shop owners in the mall. He voluntarily stated that there is an agreement of the plaintiff company with the owner of the mall, authorizing the plaintiff to do the maintenance and collect the maintenance charges. The plaintiff company also used to have an agreement for maintenance with the individual shop owners. He stated that he is not aware that the Electricity connection of the mall was disconnected with effect from 24.03.2020, and also that on account of disconnection of Electricity, no business could be carried CS (COMM.) /157/2022 Page 18 of 55 -19- out from the suit premises resulting in huge losses to the defendant. He feigned ignorance that there was a large quantity of perishable items kept in the suit premises when the Electricity was disconnected, which got rotten on account of disconnection of Electricity causing losses to the defendant and also that the Electrical Machinery and Appliances got damaged and developed malfunctioning.
16. He denied the suggestion that after 22.03.2020, neither any maintenance services were provided to the defendant, nor the defendant availed any maintenance services after that day from the plaintiff company,however, he voluntarily stated that the plaintiff company had provided the services throughout. The Electrical Board Connection in the mall is in the name of Gopal Das Estates and Housing Pvt. Ltd. He did not exactly remember when the plaintiff company got the Electrical Board Connection, it may be in 2020 or 2021. He did not remember when the Cinema Hall started functioning in the mall. The plaintiff company has demanded Rs.3,69,661/- on account of PNG Gas, Electricity Charges, etc. The plaintiff company may have filed the documents in support of the claim for Rs.3,69,661/-.The Ardee Mall got the Completion Certificate in 2010. He admitted that the defendant was a tenant and has terminated the tenancy, however, voluntarily stated that the plaintiff company had received an email regarding the termination. He feigned ignorance whether the owner of the shop prevented the defendant CS (COMM.) /157/2022 Page 19 of 55 -20- from removing his articles after termination of tenancy. He stated that he knew Ms. Shweta Nayyar, she is the General Manager of the mall. She is on the payroll of the plaintiff company.
17. Defendant's evidence was led, during which, the defendant has examined Sh. Varun Agarwal as DW1. He also led his examination-in-chief by way of affidavit (Ex.DW1/A) and deposed in terms of the averments made in the written statement. He has also relied upon following documents:-
Sr. Details of documents Exhibit/Mark
No.
1 Photocopy of the certified copy of Ex. DW-1/1
the plaint filed before the Civil
Judge, Gurugram in a case title P.S.
Aggarwal (through karta Mr. Varun
Aggarwal) Vs. M/s Ashok Kumar
Mehra and Sons (HUF) and Anr.
2 Photocopy of the certified copy of Ex. DW-1/2
the written statement of the
Defendant No.2 (Aardee
Infrastructure Pvt. Ltd.) before the
Civil Judge, Gurugram
3 Photocopy of the Unregistered Ex. DW-1/3
Lease Deed dated 12.05.2019 in
respect of the subject property
CS (COMM.) /157/2022 Page 20 of 55
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4 Photocopy of the email dated Ex. DW-1/4
24.06.2020 of the Defendant.
5 Photocopy of the email dated Ex. DW-1/5
07.07.2020 of the Sh. Ajay Mehra
on behalf of the Landlord Sh. Ashok
Kumar Mehra and Sons HUF
6 Photocopy of the certified copy of Ex. DW-1/6
the written statement of the
Defendant No.1 (Sh. Ashok Kumar
Mehra and Sons HUF.) before the
Civil Judge, Gurugram.
7 Photocopy of the email dated Ex. DW-1/7
19.08.2019 from the Defendant to
Sh. Ajay Mehra
8 Photocopy of the email dated Ex. DW-1/8
21.08.2019 of Sh. Ajay Mehra to the
Defendant
9. Photocopy of the email dated Ex. DW-1/9
21.08.2019 of the Defendant to Sh.
Ajay Mehra
10 Photocopy of the email dated Ex. DW-1/10
21.08.2019 of Sh. Ajay Mehra to the
Defendant
11 Photocopy of the letter dated Ex. DW-1/11
21.09.2019 of the Defendant and
occupants of other shops to the
CS (COMM.) /157/2022 Page 21 of 55
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Plaintiff
12 Photocopy of the email dated Ex. DW-1/12
07.12.2019 of the Defendant to Sh.
Ajay Mehra is Ex.DW-1/12
13 Photocopy of the email dated Ex. DW-1/13
09.12.2019 of Sh. Ajay Mehra to the
Defendant
14 Photocopy of the email dated Ex. DW-1/14
18.03.2020 of the Defendant to Sh.
Ajay Mehra
15 Photocopy of the email dated Ex. DW-1/15
19.03.2020 of the Defendant to Sh.
Ashok Kumar Mehra and Sons
16 Photocopy of the email dated Ex. DW-1/16
04.04.2020 of the Sh. Ajay Mehra to
the Defendant
17 The certificate under Section 65B of Ex.DW1/B
the Indian Evidence Act, 1872 in
respect of document Ex.DW-1/1,
Ex.DW-1/2, Ex.DW-1/4 to
Ex.DW-1/10, Ex.DW-1/12 to
Ex.DW-1/16
18. It may be noted that in respect of e-mails, which are Ex.DW1/4, Ex.DW1/7 to Ex.DW1/10 and Ex.DW1/12 to Ex.DW1/16, the exhibition thereof was objected to by Ld. Counsel of plaintiff on the ground that same were not CS (COMM.) /157/2022 Page 22 of 55 -23- addressed to the plaintiff and are irrelevant.
19. DW1 was cross-examined at length. In his cross-examination, he stated that he had signed the Lease Deed Ex.DW-1/3 after going through its contents.
20. (Per LC: that the Lease Deed Ex.DW-1/3 filed with the list of documents dated 08.04.2022 does not appear to be a complete document as it is only up to paragraph 5.2. The Ld. Counsel for the defendant has pointed out that complete Lease Deed running into 21 pages from page No.9 to 29 in list of documents dated 17.12.2022 and prays that Ex.DW-1/3 only Lease Deed filed on 08.04.2022, may be ignored and may be placed on the Lease Deed filed on 17.12.2022.) The complete Lease Deed filed on 17.12.2022 is Ex. DW-1/3(1).
21. DW1 admitted that his signature appear on each page of the Lease Deed Ex. DW-1/3(1) and that the Lease Deed under clause 5.1 find mention of the rate of the maintenance charges in respect of the tenanted premises and also that the clause 5.9 of the Lease Deed Ex.DW-1/3(1) provides for the time up to which the maintenance charges are payable.
22. In response to question - is it correct that you had a dispute relating to rent with the Lessor M/s Ashok Kumar Mehra and Sons HUF, he stated that the dispute had arisen after March, 2020 when the defendant terminated the month to month tenancy and were not allowed to remove its CS (COMM.) /157/2022 Page 23 of 55 -24- belongings from the tenanted premises in connivance with the plaintiff.
23. The witness was shown the Material Outgoing Receipt dated 10.06.2024 and on seeing the same, he stated that it bears his signatures and stamp. The Letter is Ex.DW-1/P1.He voluntarily stated that this document was got signed on the assurance by the plaintiff that he shall be allowed to remove his kitchen equipments only, and he was allowed to remove only few kitchen equipments. Moreover, this document is not complete as it does not find attached with the list of articles removed and the remaining articles lying there. All his furniture, fixtures, lights and material worth Lakhs of rupees had already been stolen from the mall premises. He stated that he had a lot of conversations on phone and whatsapp chats with the Mall management after 10.06.2024. However, he had not lodged any complaint with the police regarding non-permitting the removal of goods and also regarding the goods stolen from the tenanted premises. He was not in possession of the tenanted premises from 19.03.2020 and all his goods which were lying in the tenanted premises, were in the possession of the Mall management and the Landlord, which they have retained and not allowed him to remove those articles.
24. He further stated that there is no formal document signed by both the parties regarding handing over and taking over of the tenanted premises after March, 2020. However, he CS (COMM.) /157/2022 Page 24 of 55 -25- voluntarily stated that the defendant visited the Mall on 07.07.2020 after writing a letter to the Landlord regarding the removal of material upon opening of the Lock-down, and the same was not allowed and he returned empty handed on 07.07.2020 and the tenanted premises was not kept under lock and key of the defendant as it was an open shop without doors and keys and always remains in possession and security of the Mall.
25. In his further cross-examination, he could not say that the plaintiff company keeps the key of the main door of the Mall and not of any individual shop. He again voluntarily stated that the shop of the defendant was not having any door and it was not under the lock and key of the defendant and always remained in the possession and security of the Lessor and the Mall.
26. DW1 admitted that the defendant had got the payment stopped in respect of rent for the month of March, 2020 and again said he did not remember and he has to check his record to ascertain whether the payment was stopped for the rent of March, 2020.
27. On seeing the Email dated 17.04.2020 along with its Annexures, he stated that he has to check his records to say anything about it. The Email with its Annexures is Ex.DW-1/P2.
28. DW1 admitted that defendant had filed a suit against the Lessor which is pending before the Gurugram Civil Court, CS (COMM.) /157/2022 Page 25 of 55 -26- the copy of the plaint of that suit is Ex.DW-1/1. The defendant had never purchased any Stamp Papers for registration of the Lease Deed dated 12.05.2019. It is denied that the Lease Deed Ex.DW-1/3(1) was not registered because of defendant's fault and that the Lease Deed Ex.DW-1/3(1) was drafted in consultation with the Lessor, the defendant and JLL representative Ms. Arpita Tandon.
29. In his further cross-examination conducted on 02-9-2024, DW1 has stated that Smt. Manju Agarwal is his mother. She is authorized to sign the cheques. He stated that he is also authorized to sign the cheques being the Karta of the HUF after the death of his father. Before signing or issuing the cheques, he knew the reasons for issuing the cheques. He feigned ignorance whether he had issued any cheque in favour of the plaintiff, however, on seeing Ex.PW-1/7 from page 63 to 75, he stated that he had signed the cheques in favour of the plaintiff Company. However, he stated that he did not remember till what time he had issued the cheques in favour of the plaintiff company. There was a dispute with Sh. Ashok Kumar Mehra and Sons. He voluntarily stated that there was also dispute with the plaintiff company as the plaintiff company was not providing any maintenance services.
30. He denied that he has not produced any document showing handing over of the possession to the Lesser. He did not remember whether the Lesser had formally conveyed CS (COMM.) /157/2022 Page 26 of 55 -27- anything stating that he had not accepted the possession. However, he had not allowed the defendant to remove all their articles.
31. He denied the suggestion that he was not entitled to stop payment of maintenance charges from March 2020 onwards or that he was liable to pay the maintenance charges from March 2020 onwards. He did not remember whether he had ever asked for waiver of maintenance charges to the extent of 50%. He denied that post Covid normalization, he had requested for 50% waiver of maintenance charges. Had there been no Covid, he would have continued to carry on business in the lease premises and pay the rental and as regards the maintenance charges, had the services been provided satisfactorily, he would have made the payment of maintenance charges.
32. He did not know that the Court can impound the Lease Deed dated 12.05.2019 on account of being insufficiently stamped. He also did not know that the Court can compel him to pay the deficient stamp duty. (Objected to by the Ld. Counsel for the Defendant stating that the question is of purely legal character).
33. He stated that he had not removed any goods from the tenanted premises in June 2024, though he had signed the requisite document. He denied that he is not stating the truth as regards removal of articles from the tenanted premises in June 2024.
CS (COMM.) /157/2022 Page 27 of 55 -28-34. He did not remember whether there was any issue with the Yes Bank in respect of bank account of the defendant in February 2020. Sh. Mukesh Kantwal was one of the staff members of the defendant. He admitted that the defendant is the owner of M-87, First Floor Outer Circle, Connaught Place, New Delhi. He also did not know whether the summon Ex.DW-1/P4 was issued by the Gurugram Court in that case. The copy of summon is Ex.DW-1/P4 (copy given). He denied that contents of Para nos.2 and 3 of his Affidavit Ex.DW-1/A are incorrect.
35. He could not say that the defendant in Gurugram case had appeared for the first time on 27.05.2022. He denied the suggestion that plaintiff had never stopped defendant from taking away the articles lying in the tenanted premises.
36. In response to question whether the defendant is ready to remove the articles within one week from today, he stated that he was ready to remove the articles within this time frame in the presence of representative of the plaintiff company and on preparing the inventory of the articles lying and removed therefrom, which shall be signed by both the parties.
37. DW1 also denied in his further cross-examination that the electricity of the Mall was never disconnected, as running of Restaurant was an exempted activity from the ban during Covid and that no perishable goods were damaged for want of electricity.
CS (COMM.) /157/2022 Page 28 of 55 -29-38. He denied that termination of tenancy has no relation with the maintenance services and that defendant is liable to pay the maintenance services till occupancy. He voluntarily stated that he was not in occupancy of the premises since March 2020. He denied that he is still occupying the premises and is not stating the truth on that account.
39. I have already heard Ld. Counsels of the parties. I have also gone through the material available on record including the written submissions and the authorities cited at the Bar and relied upon by the parties.
40. My issue-wise findings are as under:-
ISSUE NO.1
41. Firstly, I shall take up the issue no. (1) regarding territorial jurisdiction of this Court, which is reproduced hereunder:-
Issue no.1 - Whether this Court lacks territorial jurisdiction to entertain and try the present suit.If so, to what effect? OPD.
42. The onus to prove this issue was placed upon the defendant.
Arguments advanced on behalf of the parties.
43. Ld. Counsel of plaintiff, after referring to the pleadings of the parties and the evidence led by both the sides during trial, vehemently argued that the defendant is working for CS (COMM.) /157/2022 Page 29 of 55 -30- gain from its office situated in Connaught Circus, New Delhi, which falls within territorial jurisdiction of this Court and thus, this Court has got territorial jurisdiction to entertain and try the present suit. He further contended that the defendant was previously paying CAM and Utility Charges at the office of plaintiff, which is situated at Barakhamba Road, New Delhi, which also falls within the territorial jurisdiction of this Court. Further, it has been argued that the plaintiff had been encashing the cheques issued by defendant against CAM and Utility Charges through its banker i.e. Vijaya Bank (now Bank of Baroda) having its branch at Barakhamba Road, New Delhi, which is also situated within the territorial jurisdiction of this Court. He further argued that the defendant has failed to discharge the initial burden of proving this issue and therefore, this issue should be decided against the defendant and in favour of the plaintiff.
44. Per contra, Ld. Counsel of defendant, while referring to copy of Lease Deed dated 12-05-2019 [Ex.DW1/3(1)] in respect of the subject property, submitted that the subject property is situated at Gurugram, Haryana and therefore, this Court lacks territorial jurisdiction to entertain and try the suit. However, he fairly conceded during the course of arguments that the subject matter involved in the present suit does not seek enforcement of any right relating to subject property and also that the defendant had been paying the maintenance on account of CAM and Utility CS (COMM.) /157/2022 Page 30 of 55 -31- Charges to the plaintiff at its office situated within the territorial jurisdiction of this Court and, therefore, he does not press this issue any further.
45. It may be noted that PW1 namely Sh. Chandji Bhat has categorically deposed during chief-examination by way of affidavit in evidence (Ex.PW1/A) that the maintenance charge was fixed and accepted by the defendant at New Delhi. Further, he deposed that the plaintiff is having its registered office situated at Barakhamba Road, New Delhi, situated within the territorial jurisdiction of this Court, for which, he also proved its Master Data as available in the record of Registrar of Companies as Ex.PW1/11 and also that the cheques issued by defendant on account of CAM and Utility Charges, were duly got encashed by the plaintiff through its banker having branch at Barakhamba Road, New Delhi, which also falls within the territorial jurisdiction of this Court.
46. Admittedly, the registered office of the defendant herein is also situated within the territorial jurisdiction of this Court and thus, by virtue of S. 20 (a) CPC, this Court has got territorial jurisdiction of this Court. In this regard, it would also be apposite to refer to the decision in the case of "N. V. Distilleries Pvt. Ltd. v. Frost Falcon Distilleries Ltd." reported as 2018 SCC OnLine Del 12544, wherein similar type of arguments were raised on behalf of defendant seeking return/rejection of plaint for want of territorial jurisdiction and while referring to the decision of CS (COMM.) /157/2022 Page 31 of 55 -32- Hon'ble Apex Court in the case of Patel Roadways Ltd. (supra), Hon'ble Delhi High Court has held as under:-
12. The senior counsel for the applicant/ defendant pegs his case on Patel Roadways Ltd. Supra and argues that Supreme Court therein has on an interpretation of Section 20 of the CPC held that a corporation/ company cannot be sued at the address of its registered office, if has a subordinate/ branch office elsewhere and where the cause of action has also accrued. It is argued that the plaintiff in the plaint has admitted using the mark/ label, of which infringement is claimed, in Haryana and to having its distillery at Ambala in Haryana. It is argued that the cause of action has accrued at Haryana and the defendant, owing to having distillery at Sonipat, Haryana has a subordinate office at Haryana and the suit could have been filed at Haryana only and not at Delhi where though registered office of defendant is but no cause of action has arisen.
xxxx
14. As would immediately become clear on a careful reading of the aforesaid, Supreme Court in Patel Roadways Ltd. supra though held the explanation to Section 20 of the CPC to be an explanation to thereof rather than to Clause (c) thereof but was concerned with se the alternative "carries on business", of the several alternatives Clause (a). It was not the contention before the Supreme Court in Pate Roadways Ltd. supra that the place where the registered office of corporation/company is situated is also the place where the corporation, if a defendant in the suit, "actually and voluntarily resides".
Thus, no finding was returned in the said judgment on the said aspect. Supreme Court, in the context only of alternative "carries on business" in Clause (a) of Section 20 having held that by virtue of explanation, which also is only to, where a corporation shall be deemed to carry on business, having held that where a defendant company/corporation has its principal office at one place and subordinate office at another place and cause of action arises at a place where the subordinate office is located, suit has to be filed only in the Court within whose jurisdiction the company/corporation has its subordinate office and not in Court within whose jurisdiction it has its principal office, cannot be held to have also held that notwithstanding the word "or" between the words "actually and voluntarily resides" or "carries on business" or "personally works for gain", the CS (COMM.) /157/2022 Page 32 of 55 -33- alternative of suing the corporation at the place where it actually and voluntarily resides is also not available. The judgment cannot be read as eclipsing the option given by the legislature to a plaintiff, under Section 20(a) of the Code, of suing at the place where the defendant, at the time of commencement of the suit, actually and voluntarily resides.
15. I have not come across any judgment holding that in case a defendant is a company or a corporation, only the option in Section 20 (a) of the CPC, of "carries on business" is available and not the option of "actually and voluntarily resides". In Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, it was held, as far as India is concerned, the residence of the company is where the registered office is located and normally cases should be filed only where the registered office of the company is situated. Again, in Dhodha House v. S.K. Maingi, (2006) 9 SCC 41, it was reiterated that ordinarily the residence of the company would be where its registered office is. Once it is so, a company can always be sued under Section 20(a) of the CPC, in the Court within whose jurisdiction the registered office of the company is located. Not only as per the language of the explanation to Section 20 but even as per Patel Roadways Ltd., the explanation to Section 20 is attracted only to the alternative "carries on business" in Section 20(a). xxxx"
47. Needless to say that the plaintiff has filed the present suit simplicitor for recovery of arrears of CAM and Utility Charges from March,2020 onwards. Hence, the present suit would be governed by S. 20(c) of CPC and not by provision of S. 16 of CPC. It is not in dispute that the defendant works for gain from its office situated at Connaught Circus, New Delhi and also that the plaintiff is having its office at Barakhamba Road, New Delhi. Further, the defendant was paying maintenance and utility charges to the plaintiff through cheques, which were being encashed by the plaintiff through its banker having branch CS (COMM.) /157/2022 Page 33 of 55 -34- at Barakhamba Road, which also falls within the territorial jurisdiction of this Court. For all these reasons, the Court is of the considered opinion that the defendant has miserably failed to prove this issue even on the basis of preponderance of probability. Thus, it is held that this Court has got territorial jurisdiction to entertain and try the suit. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO.2
48. Now, I shall take up the issue no. (2), which is reproduced hereunder:-
Issue no.2 - Whether there was no privity of contract between the plaintiff and the defendant.If so, to what effect? OPD.
49. The onus to prove this issue was also placed upon the defendant. As already noted above, the defendant has examined only one witness i.e. DW1 Sh. Varun Agarwal towards DE. After referring to the testimony of witnesses examined during the trial, Ld. Counsel of defendant vehemently argued that the whole case of the plaintiff is based upon lease deed dated 12-5-2019 (Ex.DW1/3), to which, the plaintiff herein was not a party. He also referred to the relevant portion of cross-examination of PW1, whereby he admitted that there is no agreement between the plaintiff and the defendant for providing any services in respect of the subject property. He also argued that the CS (COMM.) /157/2022 Page 34 of 55 -35- plaintiff has failed to place any document/ authorization in its favour either from landlord or owner of the Mall, so as to empower it to institute the present suit against the defendant. Based on all these facts and submissions, Ld. Counsel of defendant contended that the plaintiff has failed to establish the existence of any privity of contract between the plaintiff and the defendant and thus, the suit is liable to be dismissed on this ground.
50. On the other hand, Ld. Counsel of plaintiff, while repelling the aforesaid submissions advanced on behalf of defendant, vehemently argued that there is a privity of contract between the parties, inasmuch as the defendant had been paying CAM and Utility Charges in respect of the subject property to the plaintiff through cheques till February, 2020 and therefore, he urged that this issue should be decided against the defendant and in favour of the plaintiff.
51. PW-1 has categorically deposed in his examination-in-chief by way of affidavit (Ex.PW1/A) that the defendant had accepted payment of maintenance charges @ Rs.30/- per sq. ft. per month to the plaintiff and thus, the defendant was under an obligation to pay such charges till the date of occupation of subject property. Ld. Counsel of the plaintiff also referred to the e-mails dated 19-03-2020 and 14-03-2020 (Ex.PW1/2 and Ex.PW1/3 respectively) sent by defendant to the plaintiff, in order to bring home his point that the said communications CS (COMM.) /157/2022 Page 35 of 55 -36- exchanged between the parties, would defy the plea / stand taken by the defendant regarding non existence of privity of contract between the parties. He also referred to and relied upon the relevant portion of the cross-examination of DW1, whereby he admitted that the defendant had issued certain cheques on account of CAM and Utility Charges to the plaintiff till February, 2020 and therefore, it is urged that this issue may be decided against the defendant and in favour of the plaintiff.
52. The relevant portion of the testimony of PW1 whereby he stated to have received e-mails dated 19-3-2020 and 14-3-2020 (Ex.PW1/2 and Ex.PW1/3 respectively) from the defendant, has gone unchallenged and unrebutted from the side of defendant.The defendant has nowhere disputed to have sent the said two e-mails to the plaintiff during the relevant period. A bare perusal of e-mail dated 19-3-2020 would show that the defendant had requested the plaintiff for reduction of CAM and Utility Charges. Not only this, the defendant had also assured through e-mail dated 14-3-2020 to the plaintiff that he could not pay CAM and utility charges because of restriction imposed upon Yes Bank by Reserve Bank of India and also assured the plaintiff that all future CAM and Utility Charges will be paid in full on the due date as usual. Such conduct on the part of defendant in making request to the plaintiff for reduction in CAM and Utility Charges and also in giving assurance to the plaintiff for regularly making payment of CS (COMM.) /157/2022 Page 36 of 55 -37- CAM and Utility Charges in future, would completely destroy the stand taken by the defendant that there was no privity of contract between the parties. Moreover, DW1 Sh. Varun Aggarwal has categorically admitted during his cross-examination conducted on 02-9-2024 that before signing or issuing the cheques on behalf of defendant, he was knowing the reasons for issuing the cheques and also that he had signed cheques [Ex.PW-1/7 (Colly.)] in favour of the plaintiff Company. Not only this, he further deposed during his cross-examination that had there been no Covid, he would have continued to carry on business in the leased premises and would also continue to pay the rental and as regards the maintenance charges, had the services been provided satisfactorily, he would have made the payment of maintenance charges. Such portion of his testimony would leave no scope of any doubt that there was an agreement between the parties, whereby the defendant had agreed to pay CAM and Utility Charges at the agreed rate in lieu of the services being provided by the plaintiff in respect of the subject property and also that the defendant had in fact paid CAM and Utility Charges to the plaintiff through cheques or otherwise till February, 2020. Hence, this Court is of the considered view that the defendant has failed to discharge the burden of proving this issue even on the basis of preponderance of probability. It has been duly established on record that there is privity of contract between the parties and thus, this issue no.2 is also decided against the defendant and in favour of the plaintiff.CS (COMM.) /157/2022 Page 37 of 55 -38-
ISSUE NO.3
53. Now, I shall take up the issue no. (3), which is reproduced hereunder:-
Issue no.3 - Whether the suit is bad for non-joinder of necessary party i.e. owner of the leased premises.If so, to what effect? OPD
54. The initial burden to prove this issue was also placed upon the defendant. As already noted above, the present money suit seeks recovery of arrears of amount on account of CAM and Utility Charges filed by the plaintiff against the defendant. It has been the specific case of the plaintiff that it used to provide certain services like security service, housekeeping service like cleaning and technical services like lift operators etc. for the entire Ardee Mall, Gurugram, wherein the subject property in occupation of the defendant is situated. It has already been held while rendering findings on issue no.2 hereinabove that there is a privity of contract for providing said services between the parties. Thus, the Court is of the considered view that owner of the said property was neither necessary nor relevant party to the present suit seeking enforcement of right to recover dues on account CAM and Utility Charges. Even otherwise,this issue was not pressed by Ld. Counsel of defendant at the time of submissions of arguments. Accordingly, this issue no.3 is decided against the defendant and in favour of the plaintiff.
CS (COMM.) /157/2022 Page 38 of 55 -39-55. Now, I shall take up the issue nos. (3) and (4) as they are interconnected, which are reproduced hereunder:-
Issue no.4 - Whether the defendant did not avail requisite services and was not liable to pay 'Common Area Maintenance' (CAM) charges and other misc. charges, in view of preliminary objection no.14 of the Written Statement? OPD Issue no.5 - Whether the plaintiff is entitled to recover Rs.30,35,685/- from the defendant? OPP.
56. It has been the categorical stand taken by the defendant in their written statement that they did not avail requisite service of the plaintiff against the subject property after March, 2020, whereas, the plaintiff has set up its case that the relevant services were actually availed by the defendant and thus, the defendant is under an obligation to pay the suit amount to it.
57. PW1 has categorically deposed that the defendant is exclusively occupying and is under control of the subject property till date and all the assets of the defendant are still lying therein. Further, he has deposed in Para no.6 of his affidavit in evidence (Ex.PW1/A) that the defendant is still receiving the service till date and all the furniture and fixtures of their restaurant is under the proper security, watch and warden of the plaintiff and the defendant has not removed said furniture and fixtures from the restaurant. He has further deposed that the Ledger Account is CS (COMM.) /157/2022 Page 39 of 55 -40- maintained in the normal course of business and is duly audited and a sum of Rs.23,80,714/- and Rs.3,69,661/- are due and payable by the defendant towards utility charges. He has also proved copy of said ledger account as Ex.PW1/9 (Colly.) and computer generated e-invoices for the months of February, 2020 to December, 2021 as Ex.PW1/10 (Colly.). During his cross-examination, PW1 deposed that no one was presently paying the maintenance charges in respect of the subject property. He denied that after 22-3-2020, neither maintenance services were provided, nor the defendant availed any maintenance services after that day from the plaintiff. He clarified that payment of Rs.3,69,661/- is on account of PNG Gas, Electricity Charges etc. and admitted that defendant was a tenant and has terminated the tenancy through e-mail dated 24-6-2020 sent to the landlord.
58. DW1 deposed during examination-in-chief by way of affidavit in evidence (Ex.DW1/A) that the lease deed dated 12-5-2019 being unregistered one, it was month to month tenancy, which also stood terminated in March, 2020.Further, the defendant had surrendered the subject property to the landlord and it offered physical possession thereof to the landlord by taking out his material, however, the landlord refused to accept the possession on 07-07-2020. Further, he deposed that the plaintiff, in connivance with the landlord, did not allow the defendant to remove his material from the subject property. He has CS (COMM.) /157/2022 Page 40 of 55 -41- proved copy of e-mail dated 24-6-2020 along with termination letter as Ex.DW1/4 and copy of another e-mail dated 07-07-2020 as Ex.DW1/5. In view thereof, he further deposed that the defendant is not liable to pay any amount towards maintenance charges since no services were provided by the plaintiff after February, 2020 and thus, liability to pay such maintenance charges since March, 2020 is that of the landlord, who being in possession and occupation of the subject property since March, 2020.
59. During his cross-examination, DW1 admitted his signature appearing on Material Outgoing Receipt dated 10.06.2024 (Ex.DW-1/P1), but claimed that such document was got signed on the assurance by the plaintiff that he shall be allowed to remove his kitchen equipments only. He admitted not to have lodged police complaint regarding non-permitting the removal of goods.Although, he claimed that he was not in possession of the tenanted premises from 19-3-2020, but admitted that all his goods are still lying in the tenanted premises. He denied the suggestion that the plaintiff never stopped the defendant to remove all their belongings from the tenanted premises or that the defendant was watching Covid situation and that is why, the defendant was not removing their belongings from the tenanted premises. He, however, stated that there was no formal document signed by both the parties regarding handing over and taking over of the tenanted premises after March, 2020. The tenanted premises was not kept CS (COMM.) /157/2022 Page 41 of 55 -42- under lock and key of the defendant as it was an open shop without doors and keys and always remains in possession and security of the Mall. He denied the suggestion that he never surrendered the tenanted premises because of Lock-down. He admitted with regard to e-mail dated 17-4-2020 along with its annexures as Ex.DW1/P2. Initially, he denied to have received e-mail dated 14-8-2020 sent by the official of the plaintiff, but on being confronted therewith, he admitted that e-mail address mentioned there upon was of him, as such, the said e-mail was exhibited as Ex.DW1/P3.
60. In view of the aforesaid discussion, the admitted position which emerges on record may be summarized here as under:-
60.1 The plaintiff company used to provide relevant services like security, house keeping, lift maintenance, etc. to the defendant concerning the subject property at the agreed rate of Rs.30/- per sq. ft. per month;
60.2 The defendant had been paying CAM and Utility Charges at the aforesaid agreed rate to the plaintiff, which stood paid till February, 2020;
60.3 The defendant failed to pay the CAM and Utility Charges to the plaintiff in lieu of the services provided by the plaintiff to them against the subject property w.e.f. March, 2020;CS (COMM.) /157/2022 Page 42 of 55 -43-
60.4 Although, the defendant terminated the lease agreement through e-mail dated 24-6-2020 (Ex.DW1/4), however, the goods of the defendant were indisputably lying in the leased premises till after institution of the present suit; and 60.5 One civil suit bearing CS No. 8/2021 seeking relief of declaration and recovery of money filed by defendant herein/lessee of the subject property against the lessor before the Court of Ld. Civil Judge (Junior Division), Gurugram District Courts, Haryana is pending adjudication.
61. In the light of above mentioned admitted position, the facts and the evidence available on record, this Court is required to examine as to whether or not, the defendant had actually availed maintenance and utility services from the plaintiff company after February,2020, as also as to whether or not the defendant is liable to pay any CAM and utility charges to the plaintiff in lieu of availing maintenance and utility services from it.
62. Before examining the aforesaid issues, it may be noted that the plaintiff through its counsel Sh. Bimlendu Shekhar, Advocate gave up part of the relief to the extent of Rs.3,69,661/- by making statement through said counsel on 12-11-2024 that the plaintiff does not press the relevant claim/ relief to the extent of Rs.3,69,661/- on account of utility charges as claimed in the plaint and hence, the claim CS (COMM.) /157/2022 Page 43 of 55 -44- of the plaintiff is now confined to Rs.23,80,714/- towards CAM from March, 2020 till December, 2022, besides statutory tax amount payable to the government. For this reason, this Court need not discuss the relevant piece of evidence available on record with regard to the utility charges qua electricity, PNG Gas facility, etc.
63. While opening the arguments, Ld. Counsel of defendant vehemently argued that the testimony of PW1 is inadmissible under the law in view of the fact that he admitted to have signed the Statement of Truth (Ex.PW1/D1) while sitting in his office and in the absence of his Advocate. Likewise, he stated in respect of Affidavit of Certificate u/s 65B of Indian Evidence Act with respect to electronic records (PW1/13) and affidavit under Order XI Rule 6 (3) CPC, as applicable to the Commercial Courts Act, 2015 (Ex.PW1/D2) that same were also signed by him in his office in the absence of his advocate. While relying upon the decision of Hon'ble Delhi High Court in the case of 'KBT Plastic Pvt. Ltd. v. Rajender Singh' , W.P.(C) No.12072/2019 decided on 8-10-2021 and also decision of Hon'ble Karnataka High Court in the case of 'V. R. Kamath v. Divisional Controller, Karnataka State Road Transport Corporation & Ors.' reported as AIR 1997 Kant 275, Ld. Counsel of the defendant submitted that since the said documents i.e. Statement of Truth and Affidavit under S. 65-B of Indian Evidence Act and affidavit under Order XI Rule 6 (3) CPC, as applicable to CS (COMM.) /157/2022 Page 44 of 55 -45- the Commercial Courts Act, 2015 were not sworn-in before Oath Commissioner, same are not valid documents in the eyes of law.
64. On the other hand, Ld. Counsel of the plaintiff argued to the contrary, by submitting that non-swearing of Statement of Truth should not be considered fatal to the case of the plaintiff to the extent that the plaintiff is non-suited on this ground alone. Further, certificate u/s 65-B of the Indian Evidence Act is admitted to have been issued by the said witness of the plaintiff and therefore, the same has been properly proved in accordance with law and may be considered by the Court. Similar is the position with regard to Affidavit under Order XI Rule 6 (3) CPC, as applicable to the Commercial Courts Act, 2015.
65. There cannot be any dispute with regard to legal proposition of law as laid down in the above cited judgments relied upon by the defendant. However, said judgments are distinguishable on facts and circumstances of the present case, inasmuch as in the cited judgments, the main affidavits which were the basis/foundation of the relief(s) sought therein, were not found to have been sworn-in either before Notary or Oath Commissioner and in this backdrop, it was held that they should not be considered under the law. In the case in hand, no question whatsoever is shown to have been put on behalf of defendant regarding the affidavit in evidence (Ex. PW1/A) of PW1. Hence, this Court does not find any reason or CS (COMM.) /157/2022 Page 45 of 55 -46- ground to reject the entire testimony of the said witness or to disbelieve him. In fact, the defendant has challenged the authenticity of the Statement of Truth, Certificate u/s 65-B of Indian Evidence Act and Affidavit under Order XI Rule 6 (3) CPC, as applicable to the Commercial Courts Act, 2015 on the ground that the witness had signed the said three documents while sitting in the office of plaintiff and failed to swear-in these documents before Oath Commissioner. No doubt, it was obligatory on the part of PW1 to swear-in said three documents before Oath Commissioner, before their attestation by the said Authority, however, it cannot be overlooked that the Statement of Truth is only a supporting affidavit, which is required to be filed along with the plaint in commercial suit and thus same would not, in the opinion of this Court, be fatal to the case of the plaintiff to the extent that suit is liable to be dismissed on that ground alone.
66. As regards certificate u/s 65-B of Indian Evidence Act and Affidavit under Order XI Rule 6 (3) CPC, as applicable to the Commercial Courts Act, 2015, it may be noted that the existence of all the electronic record documents which are being relied upon by the plaintiff, have never been disputed from the side of the defendant. Pertinently, some of the e-mails are denied by the defendant merely on the premise that same being electronic documents are filed without compliance of S. 65B of Indian Evidence Act, 1872, in the affidavit concerning admission/ denial of CS (COMM.) /157/2022 Page 46 of 55 -47- documents filed on record. This would show that the defendant has not denied the authenticity, genuineness and existence of even those e-mails having been exchanged between the parties during the relevant period. It is trite law that any document which is admitted by the opposite side need not to be proved under the law.
67. This brings me down to the next limb of argument touching upon the merits of the present suit. The defendant allegedly terminated the lease deed through e-mail dated 24-6-2020 (Ex.DW1/4), whereby they allegedly informed the landlord that they would be removing articles from the subject property on 09-7-2020. Ld. Counsel of defendant vehemently argued that once the defendant terminated month to month tenancy vide said e-mail Ex.DW1/4 and the landlord refused to accept the physical possession thereof, there is a presumption under the law that since possession of the premises is offered to the landlord, its constructive possession would lie with the landlord/lessor and the liability of lessee to pay lease amount/rent ceased to exist. In support of said submission, he also relied upon the decision of Hon'ble Division Bench of Delhi High Court in case of ' Associate Journal Limited v. ICRA Limited' bearing RFA (OS) 62/2007 decided on 07-3-2012. He submitted that once liability of the defendant to pay lease amount ceases to exist, the defendant cannot be made liable to pay the maintenance charges being incidental charges and therefore, the CS (COMM.) /157/2022 Page 47 of 55 -48- plaintiff is not entitled to the suit amount, as claimed and therefore, he urged that the issue no.5 may be decided against the plaintiff and in favour of the defendant.
68. Ld. Counsel of defendant further submitted that the plaintiff has also failed to establish on record that it provided the requisite services to the defendant since after February, 2020 and therefore, the defendant even otherwise cannot be made liable to pay the suit amount on account of maintenance and utility charges and thus, it is urged that issue no.4 may also be decided against the plaintiff and in favour of the defendant.
69. The sole witness examined by the defendant has proved copy of the certified copy of the plaint and that of the written statements filed by both the defendants therein in CS No. 8/2021 as Ex. DW1/1, Ex. DW1/6 and Ex. DW1/2 respectively. It would be relevant to reproduce the reliefs sought by defendant herein in the aforesaid civil suit which is still pending adjudication before Ld. Civil Judge (Junior Division), Gurugram District Courts, Haryana. Same read as under:-
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10. In view of the above facts and circumstances, the Plaintiff therefore prays that
a) Pass a decree of declaration thereby declaring that the tenancy under the unregistered lease agreement stood terminated with effect from March 2020 owing to the material change in law and the plaintiff rightly terminated the agreement in view of the change in law and sought for refund of the security deposit from the defendants:CS (COMM.) /157/2022 Page 48 of 55 -49-
b) This Hon'ble Court may be pleased to pass a decree thereby directing the Defendant no. 1&2 to jointly and / or severally pay to the Plaintiff the Refund Amount of Rs. 15,85,380/- (Rupees Fifteen Lakh Eighty Five Thousand Three Hundred Eighty and Six Paisa only) towards interest free security deposit alongwith interest @ 12% with effect from the date of filing this suit till the date of payment;
c) The costs of this Suit be provided for in favour of the plaintiff, and
d) Such other reliefs, as this Hon'ble Court, in the facts and circumstances of the present case deems fit and proper"
70. It is evident from the bare perusal of the plaint Ex.DW1/1 that the defendant herein categorically averred that lease was terminated on 24-3-2020 and vide e-mail dated 24-6-2020, they had requested for refund of deposits from the landlord, as also that they would come on 09-7-2020 to hand over the physical possession of the suit property, remove the articles and vacate the premises. However, the landlord did not allow them to remove their material and articles from the leased premises. Further, a bare perusal of the written statement Ex.DW1/6 would show that the landlord has categorically taken the stand that as per relevant clause of the lease deed, the lease in question was carrying lock-in period of 3 years and would have expired on 12-5-2021 and thus, the same was not terminable at the instance of either of the parties till 12-5-2021. Further, it is also stated therein that in case, the lessee intended to terminate the lease even before expiry of lock-in period, the same could have been done only after payment of entire lease amount for remainder lock-in period by lessee CS (COMM.) /157/2022 Page 49 of 55 -50- to the lessor. Based on said averments, the landlord claimed that the alleged termination of lease deed unilaterally by the tenant/ defendant herein is illegal and void ab-initio and also that the lease deed dated 12-5-2019 is valid and subsisting.
71. Indisputably, the aforesaid other civil suit filed by defendant herein is still pending adjudication before the concerned Court at Gurugram, Haryana. All the relevant questions including as to whether or not the defendant had validly terminated the lease in question through e-mail Ex.DW1/4, or as to whether or not, the defendant offered to surrender vacant and peaceful possession of the tenanted premises to the landlord vide e-mail 24-6-2020, or as to whether or not there was any failure on the part of landlord in not accepting the vacant and peaceful possession, or as to whether or not the landlord had not allowed the lessee/defendant herein to remove their articles during the relevant period, cannot be gone into by this Court while deciding the issues in hand and all such issues have to be decided by the said other Court at Gurugram, Haryana, where all such points are directly and substantially involved. Thus, all these questions are left open to be decided by the said Civil Court of Gurugram, Haryana in the said other civil suit and no finding on any of these points is being given by this Court in the present suit, for the simple reason that in case, this Court proceeds to decide all or any of these questions, it would amount to CS (COMM.) /157/2022 Page 50 of 55 -51- usurping the jurisdiction of said Civil Court at Gurugram, Haryana, which is impermissible under the law. Moreover, the landlord is not a party to the present proceedings and for this reason also, it would not be appropriate for this Court to render any findings on the validity of the alleged termination of the lease deed dated 12-5-2019 or to give any findings at the back of the landlord.
72. As already mentioned above, the witness of the defendant has admitted during his cross-examination that goods of the defendant are still lying in the leased premises/subject property. At this juncture, it would be relevant to refer to the Material Outgoing Receipt dated 10.06.2024 (Ex.DW1/P1), which shows that the defendant herein removed some of the material / goods from the tenanted / leased premises on 10-6-2024. Further, the e-mail dated 14-8-2024 (Ex.DW1/P3) sent by plaintiff to the defendant would further demonstrate that the goods and materials of the defendant were still lying in the leased premises/ subject property till such date. The relevant portion of the testimony of DW1 coupled with the said documents, would amply demonstrate and establish on record that the defendant continued to be in actual possession of the subject property since all their goods and articles were still lying therein. That being so, this Court finds force in the submission made on behalf of the plaintiff that since tenanted premises/ leased premises could not be put to use by landlord or by any other occupant who may have been CS (COMM.) /157/2022 Page 51 of 55 -52- put into possession thereof at the instance of the land lord/ owner of the Mall, and the plaintiff continued to provide the requisite services concerning the leased premises/subject property to the defendant till institution of the suit. Thus, the plaintiff is entitled to recover the dues from the defendant against subject property towards maintenance from March,2020 till the date of institution of the present suit. For all these reasons, the Authority in the case of Associate Journal Limited (supra) cited on behalf of the defendant is entirely distinguishable from the facts and circumstances of the present case. Accordingly, the issue nos. 4 and 5 are decided in favour of the plaintiff and against the defendant.
ISSUE NO.6
73. Now, I shall take up the issue no.6, which is reproduced hereunder:-
Issue no. 6 - Whether plaintiff is entitled to order directing the defendant to pay the regular maintenance charges from the month of January, 2022 till the occupancy period of leases premises? OPP
74. It is a matter of record that the present suit was instituted on 07-02-2022. During the course of submissions, Ld. Counsel of plaintiff fairly conceded that in the present suit, the plaintiff is not entitled to claim dues towards maintenance charges after institution of the suit as it CS (COMM.) /157/2022 Page 52 of 55 -53- pertain to fresh cause of action, if any and the plaintiff may file separate suit seeking recovery of such dues from January, 2022 till the occupancy period of lease premises. Accordingly, the issue is decided against the plaintiff and in favour of the defendant.
ISSUE NO.7
75. Now, I shall take up the issue no.7 regarding interest, which is reproduced hereunder:-
Issue no. 7 - Whether plaintiff is entitled to recover interest from the defendant?If yes, then at what rate of interest and for which period? OPP
76. Section 34 CPC clearly provides that where the liability in relation to the sum so adjudged had arisen out of commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate of interest, or where, there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to the commercial transactions.
77. The plaintiff has claimed and calculated pre suit interest @ 12% per annum on the outstanding amount of Rs.23,80,714/- from the date when the amount against invoices became due till 01.01.2022 and hence, it has claimed Rs.2,85,310/- towards the same. Admittedly, there is no contractual agreement between the parties to any interest in case of the delayed payment, however, since CS (COMM.) /157/2022 Page 53 of 55 -54- the defendant has illegally withheld the legitimate dues of the plaintiff and the nature of transaction is commercial in nature, this Court is of the view that the plaintiff is entitled to the interest. However, keeping in view the overall facts and circumstances of the case, the Court is of the opinion that the claim of interest @ 12% per annum, in the absence of any contractual agreement, is on higher side, inappropriate and unjustifiable. Thus, interest of justice would be met by awarding interest @ 9% per annum from the date when the invoices became due till the date of filing of the suit. Further, the plaintiff shall also be entitled to the pendent-lite and future interest @ 9% per annum from the date of filing of the suit till the date of realization. It is so ordered accordingly.
78. The plaintiff has also claimed the cost of the suit. Keeping in view the provisions contained in Sections 35 and 35A CPC, it has been established that the defendant failed to pay the outstanding dues not only despite service of legal notice, but also, despite service of summons of the suit upon it. Therefore, the defendant is responsible for the cost of the litigation to the extent of court fee and lawyers fee etc. as per the relevant rules. In my view, the plaintiff is accordingly entitled for the cost of litigation against the defendant. Thus, the issue no.7 is decided in these terms.
RELIEF
79. In the light of aforesaid discussion, the Court is of the view CS (COMM.) /157/2022 Page 54 of 55 -55- that the plaintiff has been able to prove its case on the basis of preponderance of probability. Accordingly, the suit is decreed in favour of the plaintiff and against the defendant and thus, the following reliefs are granted:-
79.1 The plaintiff is entitled to recover Rs.23,80,714/-
(Rupees Twenty Three Lacs Eighty Thousand Seven Hundred & Fourteen only) from the defendant towards CAM from February, 2020 till the date of institution of the suit i.e. 07-2-2022;
79.2 Pre-suit interest is awarded @ 9% per annum from the date when invoices becomes due till filing of the suit;
79.3 Pendente-lite interest is awarded @ 9% per annum from the date of filing of the suit till the date of judgment;
79.4 Future interest is awarded @ 9% per annum from the date of judgment till the date of its realization; and 79.5 Proportionate costs of the suit is also awarded in favour of the plaintiff.
80. Decree sheet be prepared accordingly. File be consigned to Record Room, after due compliance. Digitally signed by VIDYA PRAKASH VIDYA Announced in the open Court PRAKASH Date:
2024.12.23 17:35:36 On this 23rd day of December, 2024. +0530 (VIDYA PRAKASH) DISTRICT JUDGE (COMMERCIAL COURT)-02 PATIALA HOUSE COURTS, NEW DELHI CS (COMM.) /157/2022 Page 55 of 55