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Delhi District Court
Rupali Rai vs Sshubh Aarambh Propdeal Pvt. Ltd on 7 August, 2025
IN THE COURT OF SHRI DEVENDER KUMAR, DISTRICT JUDGE
(COMMERCIAL COURT-01), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 313/2023
Rupali Rai
W/o Sh. Rajiv Kumar
R/o A-98, Second Floor, Madhuban,
Nirman Vihar, Delhi- 110092
Also at:-
Village & Post Sathiaon
Distt. Azamgarh
Uttar Pradesh ..................Plaintiff
Versus
Sshubh Aarambh Propdeal Pvt. Ltd.
Through its Director
Mr. Chander Shekhar
Regd. Office At:- K-102,
Main Bazar, Laxmi Nagar,
Delhi-110092
Also At:-
No. A-146, Khasra No. 79,
Situated At The Abdali of
Shakarpur, Village Shakarpur Khas
Illaqa Shahdara, Delhi-110092 ............Defendant
Date of institution : 25.08.2023
Date of reserving judgment : 29.07.2025
Date of judgment : 07.08.2025
(SUIT FOR RECOVERY OF ARREARS OF RENT)
Digitally signed
CS (Comm) No. 313/2023 by DEVENDRA
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA KUMAR 1/34
KUMAR Date:
2025.08.07
15:52:31 +0530
JUDGMENT :
–
1. Vide this judgment, I shall dispose of this petition for recovery of
Rs.52,32,000/- (Rs.48,00,000/- as rent and Rs.4,32,000/- as interest) filed
by the plaintiff and against the defendant. Brief Facts of the case are as
under:-
2. Plaintiff has alleged to be the owner/landlord of one part of the
property bearing no. A-146, plot measuring area 120 Sq.Yds., Out of
Khasra No. 79, situated in the abadi of Shakarpur, in the area of village
Shakarpur Khas, Illaqa Shahdara, Delhi-110092, constructed from
basement upto third floor and terrace. It is further alleged that in the month
of June, 2018, the defendant company, through its Director Mr. Chandra
Shekhar, approached to the plaintiff for letting out the aforesaid property to
run a PG on rent and the plaintiff conceded to his request and inducted the
defendant company as tenant against a monthly rent of Rs.2,00,000/-
excluding electricity and water charges and GST @ 18%, subject to revision
from time to time. It was further agreed that the rent of the premises would
be enhanced @ 15% after 3 years and tenancy was fixed for a period of nine
years, with lock in period of 18 months, extendable for further nine years at
the option of the defendant. A lease deed dated 26.06.2018 was executed
and registered between the parties.
2.1. Plaintiff has further alleged that the defendant company was habitual
defaulter in payment of the rent and the plaintiff reminded many times
through WhatsApp messages but still no rent was paid by the defendant
CS (Comm) No. 313/2023 Digitally signed
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. by DEVENDRA 2/34
DEVENDRA KUMAR
KUMAR Date: 2025.08.07
15:52:36 +0530
during the period from January, 2020 to December, 2021. It is further
alleged that on 26th February, 2020, the defendant company sent a
WhatsApp message to vacate the property w.e.f. 1ST March, 2020, which
was not a legal notice, due to the plaintiff responded that 6 Months legal
notice was required in writing to terminate the tenancy. It is further alleged
that a meeting was held between the plaintiff and director of the defendant
company agreed on 18.03.2020 that overdue rent would be paid within next
two three days, whereas no rent was paid and the plaintiff again reminded
the defendant to pay the rent by 21.03.2020, which was again not paid and
again 15 days’ time was sought but the rent remained unpaid.
2.2. Plaintiff has further alleged that 06.04.2020, the defendant again
promised to pay the rent amount by cheque on 15.04.2020, but nothing was
paid, whereas on 13.04.2020, the defendant served a back dated notice
dated 18.03.2020 thereby stating that Covid-19 virus spread had effected
business of the defendant, due to the defendant had invoked Clause 4 of
lease deed and terminated the tenancy by applying condition of Force
Majeure. It is further alleged that the plaintiff objected to this legal notice
and reason of termination of the tenancy and served a notice dated 13-5-
2020 thereby demanding arrears of rent till March 2020, only than any
relaxation of the rent to the defendant during lockdown could be
considered, as allowed by advisory of Government of India, whereas the
defendant failed to pay any amount despite repeated demands and
reminders. It is further alleged that the plaintiff is also entitled to get
interest @ 9 % per annum against the outstanding rent amount.
Digitally signed
CS (Comm) No. 313/2023 by DEVENDRA
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA KUMAR 3/34
KUMAR Date: 2025.08.07
15:52:42 +0530
2.3. Plaintiff filed a Civil Suit No. 436/2020 titled as “RUPALI RAI VS.
SSHUBH AARAMBH PROPDEAL PVT. LTD.” before the court of Ld.
ADJ, but the said suit was returned for want of jurisdiction before the
commercial court. However, in the meanwhile, the defendant surrendered
the vacant possession of the tenanted premises to the plaintiff on 15-1-
2022, (ought to be 05.01.2022 as per Ex.PW1/D1) but did not pay
outstanding rental and withheld the payment of outstanding rent.
2.4. After returning the earlier suit by the court, the plaintiff has filed the
present suit after enhancement of pecuniary valuation, as earlier suit was
filed for recovery of Rs. 16 Lacs whereas this suit has been filed for
recovery of Rs. 52, 32,000/-, with interest @ 9% per annum. Plaintiff has
prayed for decree of suit amount along with interest @ 9% per annum.
3. Defendant has filed reply/ WS to the suit and has denied all the
allegations of the plaintiff and has alleged that the suit is barred by
limitation, as the earlier suit was filed before the Court of Sh. Rajesh
Kumar, Ld. ADJ East, vide CS No. 436/2020, which was returned vide
order dated 16.02.2023, whereas the plaintiff failed to follow the procedure
to file the same plaint before this court and rather has filed a fresh suit
without leave of the court, which is beyond the period of limitation. It is
further alleged that the plaintiff has not affixed sufficient stamp duty and
rather has used a locked court fees and has played a fraud against the court.
It is further alleged that there was no cause of action to file this present in
favour of the plaintiff and against the defendant, as both the parties entered
Digitally signed
CS (Comm) No. 313/2023 by DEVENDRA
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA KUMAR 4/34
KUMAR Date:
2025.08.07
15:52:46 +0530
into MOU dated 05.01.2022, in which, the plaintiff agreed not to institute
any other or further suit/claim/ complaint against the defendant before any
court of law except the suit already pending, due to this suit is not
maintainable.
3.1. Defendant has further alleged that this suit is not under the provisions
of the Commercial Court Act and even compliance of Order 6 Rule 15A has
not been made, due to this case is not covered under a commercial dispute.
It is further alleged that suit is barred by Order 2 Rule 2 CPC, as no relief of
the possession was sought in this case. Defendant has denied all the
allegations of the plaintiff and has alleged that the lease deed executed on
26.06.2018 commenced w.e.f. 01.7.2018 with lock in period of 18 months,
was terminable after expiry of lock in period. It is further alleged that at the
time of execution of lease deed, the defendant deposited Rs.12,00,000/- as
security and said amount has not been refunded by the plaintiff. It is further
alleged that the defendant conveyed on 18.12.2019 regarding termination of
lease deed w.e.f. 01.03.2020 after lock in period and the plaintiff also
acknowledged request of termination of the tenancy w.e.f. 01.03.2020, but
still she has filed this false case. It is further alleged that even in the month
of February 2020, the defendant again reminded to the plaintiff to vacate
the tenanted premises by 01.03.2020 on account of heavy losses in
business, but still the plaintiff has claimed this amount and did not give any
benefit of government guidelines on corona.
3.2. Defendant has further alleged that the plaintiff was intimated to
collect the keys of the premises and was sent a WhatsApp message dated
Digitally signed
CS (Comm) No. 313/2023 by DEVENDRA
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA KUMAR 5/34
KUMAR Date:
2025.08.07
15:52:51 +0530
26-02-2020, followed by letter dated 13-4-2020 (wrongly typed as 18-03-
2020), but still the possession of the tenanted premises was not taken over.
The defendant again requested for suspension of lease deed due to outbreak
of Covid 19, but the plaintiff again failed to respond, though lease deed got
suspended w.e.f. 25-04-2020, due to lockdown, but after expiry of one
month, it got terminated w.e.f. 28-05-2020. It is further alleged that the
defendant has paid entire rental amount but still the plaintiff has failed to
refund security amount despite request in the month of August 2022. It is
further alleged that the defendant adjusted amount of rent for the month of
January and February, 2022, but an amount of Rs.8,00,000/- is still
outstanding towards the plaintiff qua security after adjustment of two
month’s rent.
3.3. Defendant has further alleged that the defendant served a legal notice
dated 23-12-2020 (no notice on record) upon the plaintiff thereby calling
upon to refund amount of Rs.8,00,000/-, but the plaintiff has failed to
refund said amount. It is denied that the defendant is liable to pay any rent
for the period from January 2020 to December 2021. Defendant has
alleged that the plaintiff is not entitled for any recovery and case is liable to
be dismissed.
4. Plaintiff has filed replication to WS thereby denying all allegations of
the defendant and has reaffirmed the pleadings.
5. On the basis of pleadings of the parties, the following issues were
framed vide order dated 07.01.2025 as under:
Digitally signed
CS (Comm) No. 313/2023 by DEVENDRA
KUMAR
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA 6/34
Date:
KUMAR 2025.08.07
15:52:59
+0530
ISSUES
1.Whether the plaintiff is entitled for a decree of recovery of
Rs.52,32,000/- against the defendant? OPP
2. Whether the plaintiff is entitled for any interest? If so, at what
rate and for which period? OPP
3. Whether the plaintiff has not paid the sufficient court fees on the
plaint? OPD
4. Relief
6. To discharge the onus to prove these issues, the plaintiff has
examined Rajesh Rai as PW1. PW1 has tendered two affidavits Ex.PW1/A
and Ex.PW1/B in examination-in-chief and has relied upon the following
documents as under:
i. The certified copy of order dated 16.02.2023 as Ex. PW1/1.
ii. The certified copy of Statement of plaintiff dated 16.02.2023 as
Ex. PW1/2.
iii. Original plaint of CS No. 436/2020 as Ex. PW1/3.
iv. Copy of Rent Agreement as Ex. PW1/4 (OSR).
v. Notice sent by plaintiff through WhatsApp to the defendant as Ex.
PW1/5.
vi. Copy of WhatsApp Chat between the plaintiff and the defendant
as Ex. PW1/6.
vii. Notice sent by defendant through WhatsApp to the plaintiff as Ex.
PW1/7.
viii. SPA of plaintiff as Ex. PW1/8.
ix. Non-starter report as Ex. PW1/9.
x. Certificate u/s 65B Indian Evidence Act as Ex. PW1/10.
Digitally signed
by DEVENDRA
CS (Comm) No. 313/2023 DEVENDRA KUMAR
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. KUMAR Date: 7/34
2025.08.07
15:53:05 +0530
xi. Bank Statement of the plaintiff from 01.01.2018 to 31.12.2020,
Ex.PW1/11(colly 7 pages).
xii. Certificate under Section 65B of Indian Evidence Act for the bank
statement, Ex.PW1/12.
xiii. Copy of memorandum of settlement, Mark A.
xiv. Copy of the written statement filed by defendant in earlier civil
suit no. 436/2020, titled as “Rupali Rai vs Sshubh Aarambh
Propdeal Pvt. Ltd., Mark B.6.1. During cross examination, PW1 has deposed that he is 12th class
passed and has also completed diploma in Electrical Engineering. It is
further deposed that he did not remember the date when Power of Attorney
Ex. PW-1/8 was executed and rather did not know where Special Power of
Attorney was executed. However, his counsel was present there at the time
of its execution and he did not remember whether anyone else was also
present there. It is further deposed that he is original inhabitant of
Ghazipur, Uttar Pradesh and the plaintiff is his daughter, who is residing at
Delhi with him. It is further deposed that he does not know how to read
English language properly. It is further deposed that SPA Ex. PW-1/8 was
prepared by advocate of the plaintiff on his asking/ instruction.
6.2. PW1 has further deposed that the plaintiff has visited the court
premises at Karkardooma on one or two occasions and visited court
premises at the time of filing of the suit and also put her signatures. It is
further deposed that the property in question was let out by the plaintiff to
the defendant for running a PG Hostel. It is further deposed that he has not
gone through the contents of Lease Deed Ex.PW-1/4, but mobile messages
Digitally signed
CS (Comm) No. 313/2023 by DEVENDRA
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA KUMAR
8/34
KUMAR Date:
2025.08.07
15:53:12 +0530
Ex.PW-1/6 delivered to him by Mr. Chandrashekhar, who also sent
message that the defendant would vacate the premises in question on
01.03.2020. It is further deposed that no message was sent through
WhatsApp by Rupali Rai to the defendant through her mobile. Vol. Only he
sent the messages.
6.3. PW1 has further deposed that the defendant had vacated the premises
on 01.03.2020. Again said that the defendant has vacated the suit property
in January, 2022. It is denied that he did not receive keys from the
defendant under the pretext that he will take keys after finding a tenant for
the premises. It is admitted that the plaintiff had also filed one more case
against the defendant with respect to the suit property for recovery of rent,
of which plaint is already exhibited as Ex.PW-1/3. It is denied that the
defendant vacated the property in question in March, 2020. Vol. defendant
vacated the property in January, 2022. It is admitted that a sum of Rs. 12
Lakhs as security was paid by the defendant at the time of commencement
of the tenancy, which was refundable and same is still with them. It is
further admitted that a memorandum of understanding Mark A was
executed between the plaintiff and the defendant, which is exhibited Ex.
PW-1/D-1. It is denied that Power of Attorney Ex. PW-1/8 was neither
executed by the plaintiff nor got attested in accordance with law. It is
further denied that the defendant was liable to pay rent only for two months
i.e. January and February, 2020, or that he is not authorized to depose on
behalf of the plaintiff.
Digitally signed
by DEVENDRA
KUMAR
CS (Comm) No. 313/2023 DEVENDRA
Date:
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. KUMAR 2025.08.07 9/34
15:53:17
+0530
7. Defendant led his evidence by way of affidavit Ex.DW1/A and has
relied upon Resolution of board of directors dated 31.05.2024 as
Ex.DW1/1.
7.1. During cross examination, DW1 has deposed that his father knew
Rajesh Kumar Rai very well. It is admitted that the defendant had been
making payment of rent of the tenanted premises regularly, but there may
be defaults on one or two occasions. It is admitted that he can file record to
show that the defendant has paid rent to the plaintiff upto 01.03.2020. It is
further admitted that he was not aware, if the defendant sent any message
or wrote any letter to the plaintiff to refund the security amount. The letter
Ex.PW1/7 was sent by the defendant to the plaintiff but there is no
reference of refund of security money in the said letter.
8. I have heard the arguments and perused the record. My issue wise
findings are as under: –
ISSUE No. 3:- I am taking up issue no.3 first, as it pertains to payment of
court fees which goes into the merit of the case. The onus to prove this
issue was fixed upon the defendant and the defendant was supposed to
prove that the plaintiff has not paid sufficient court fees on the plaint.
Plaintiff has paid court fees of Rs.17,972/- and Rs.35,466/- respectively,
whereas the defendant has neither cross-examined PW1 nor led any
evidence nor arguments to prove that the court fees paid by the plaintiff
was/is deficient. Defendant has not proved, as to what was actual court fees
supposed to be paid by the plaintiff, due to the defendant has failed to
prove that the plaintiff has affixed deficient court fees.
Digitally signed
CS (Comm) No. 313/2023 by DEVENDRA
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA KUMAR
10/34
KUMAR Date:
2025.08.07
15:53:22 +0530
9. Ld. Counsel for defendant has argued that the plaintiff has used
electronically generated locked court fees of Rs.17,972/-, due to it is not a
payment of proper court fees. However, this court fees was locked and paid
by the plaintiff at the time of presentation of earlier suit Ex.PW1/3 and if
the suit was returned along with court fees, then there was no harm in using
similar court fees and there was no illegality in it, as unused court fees
cannot cancel by subsequent utilization. The purpose of the payment of
court fees is to pay revenue to State for institution of a suit and if suit has
been instituted and returned under Order 7 Rule 10 CPC along with court
fees, then the purpose of such return was to utilize same court fees, so it
cannot be said that the court fees could not have been utilized by the
plaintiff. Hence, the defendant has failed to discharge the onus to prove this
issue and issue no.3 is decided in favour of the plaintiff and against the
defendant.
10. ISSUE NO. 1 – The onus to prove this issue was fixed upon the
plaintiff and to discharge the onus, the plaintiff has examined her father
Rajesh Kumar Rai as PW1. On the other hand, the defendant has examined
DW1 to disprove this onus. However, before deciding this case on facts, it
is necessary to decide various legal objections raised by Ld. Counsel for
defendant regarding maintainability of this case.
Reliability of Testimony of PW1/ SPA
11. First objection raised by Ld. Counsel for defendant is pertaining to
non-examination of the plaintiff to prove this case. Ld. Counsel for
defendant has argued that the plaintiff has not examined herself to prove the
Digitally signed
CS (Comm) No. 313/2023 by DEVENDRA
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA KUMAR 11/34
KUMAR Date:
2025.08.07
15:53:28 +0530
allegations of this case, whereas the testimony of PW1 has failed to prove
this case for the want of personal knowledge of the witness, due to an
adverse inference may be drawn against the plaintiff that she has
deliberately withheld her examination to prove this case. It is further argued
that PW1 has been examined in the capacity of Special Power of Attorney,
whereas he has admitted that he has no personal knowledge about this case,
due to his testimony was not sufficient to prove this case. It is further argued
that PW1 could have deposed only about those facts which were within his
personal knowledge in terms of Order 3 Rule 2 of CPC, whereas PW1 has
also deposed those facts which were not within his personal knowledge, due
to this case could not be proved and is liable to be dismissed. It is further
argued that the plaintiff has preferred not to examine herself, due to neither
institution of this suit could be proved nor any reliable evidence could be
led and suit is liable to be dismissed.
12. On the other hand, Ld. Counsel for plaintiff has opposed these
submissions and has submitted that the pleas taken by the defendant are not
sustainable, as the plaintiff was not supposed to enter into the witness box
to prove her case, if she has already examined another witness having
personal knowledge about this case. It is further argued that PW1 being
father of the plaintiff was dealing with the tenancy as well as tenant
personally and had personal knowledge, due to the examination of PW1
was sufficient to prove this case and all the pleas taken by the defendant are
not sustainable.
Digitally signed
by DEVENDRA
CS (Comm) No. 313/2023 DEVENDRA KUMAR
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. KUMAR Date: 12/34
2025.08.07
15:53:35 +0530
13. Admittedly, this suit has been instituted by the plaintiff Rupali Rai,
whereas she has examined her father as PW1. The testimony of PW1 has
been opposed by the defendant on the ground that he had no personal
knowledge about this case, due to his testimony is of no use. However,
before weighing the testimony of PW1, it is necessary to see legal
proposition to this effect. Order 3 Rule 2 is relevant provision to authorize a
person to institute and contest a case through authorized representative. Any
representative may be authorized through a Power of Attorney, executed
under the provisions of Power of Attorney Act, 1982, to be authenticated
u/s 85 of Evidence Act, 1872, (now Section 84 of BSA, 2023). Order 3 Rule
1 & 2 and Section 84 of Bharatiya Shakshya Adhiniyam, 2023 are as under:
ORDER III
Recognized Agents and Pleaders
Rule 1. Appearances, etc., may be in person, by recognized agent or
by pleader.–Any appearance, application or act in or to any Court,
required or authorized by law to be made or done by a party in such
Court, may, except where otherwise expressly provided by any law
for the time being in force, be made or done by the party in person, or
by his recognized agent, or by a pleader 1 [appearing, applying or
acting, as the case may be,] on his behalf :
Provided that any such appearance shall, if the Court so directs, be
made by the party in person.
Rule 2. Recognised agents.–The recognised agents of parties by
whom such appearances, applications and acts may be made or done
are–
(a) persons holding powers-of-attorney, authorising them to make and
do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of
parties not resident within the local limits of the jurisdiction of the
Court within which limits the appearance, application or act is made
or done, in matters connected with such trade or business only, where
Digitally signed
by DEVENDRA
KUMAR
DEVENDRA
CS (Comm) No. 313/2023 Date:
KUMAR 2025.08.07
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. 13/34
15:53:41
+0530
no other agent is expressly authorised to make and do such
appearances, applications and acts.
Rule 3. XXXXXXXXXXXXXXXXXXXXXXX
Rule 4. XXXXXXXXXXXXXXXXXXXXXXX
Rule 5. XXXXXXXXXXXXXXXXXXXXXXX
Rule 6. XXXXXXXXXXXXXXXXXXXXXXX
&
Section- 84. Presumption as to powers-of-attorney.–The Court shall
presume that every document purporting to be a power-of-attorney,
and to have been executed before, and authenticated by, a Notary
Public, or any Court, Judge, Magistrate, Indian Consul or Vice-
Consul, or representative of the Central Government, was so executed
and authenticated.
14. A joint reading of Order 3 Rule 2 r/w Section 84 of BSA makes it
clear that any party may authorize any agent to act and plead on its
behalf through Power of Attorney executed under the provisions of
Power of Attorney Act, 1882 and duly authenticated under Section 84 of
BSA. In fact, authentication of Power of Attorney creates a presumption
of genuineness about it.
15. However, only that Power of Attorney can carry a presumption of
authentication which was executed and authenticated u/s 84 of BSA
before the authorities mentioned therein, including Notary Public, which
is very frequent authority to authenticate a Power of Attorney. The law
laid down by Hon’ble High Court in case titled Baker Oil Tools (India)
Pvt. Ltd. vs Baker Hughes Ltd. & Anr. RFA No. 583/2004, is relevant as
under:
Digitally signed
by DEVENDRA
CS (Comm) No. 313/2023 DEVENDRA KUMAR
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. KUMAR Date: 14/34
2025.08.07
15:53:47 +0530
21. For raising a presumption under this section, the twin
requirements to be fulfillled are : (1) that the document in question
must purport to be a power of attorney, and (2) that it must purport to
have been executed before and authenticated by a notary public, or
any court, judge, magistrate, Indian consul, or vice-consul, or
representative of to Central Government. Exhibit P-42A is a document
which purports to be a power to be a power of attorney. It further
purports to have been executed before and authenticated by a notary
public. Thus, both these requirements stand fulfillled and there is no
dispute to this extent.
22. What presumption has to be raised under s. 85 of the Evidence
Act ? Section 85 says that the court shall presume that such a
document was so executed and authenticated. Executed by who :
obviously by the person purporting to have executed the power of
attorney before the notary public. Exhibit P-42A is purported to have
been executed by Water R. Humphrey, executing officer, and Carl W.
Desch, cashier, for the First National City Bank. It bears the seal of
the bank. The real executant or the donor of powers is, therefore, the
First National City Bank. Section 85 in terms makes no distinction
between a natural person and legal person. Thus, a presumption would
have to be raised under s. 85 that this power of attorney had been
executed by the said bank. In other words, it will also be presumed
that the two officers had the authority to execute the power of attorney
on behalf of the bank.
23. The authentication is not merely attestation but something more
According to Law Lexicon by T. P. Mukherjee and K. K. Singh,
authentication connotes an attestation made by an authorised officer
by which he certifies that a record is in due form of law. The words
“due form of law” are very important and lend support to the
contention of the learned counsel for the plaintiff, namely, that
under s. 85 a presumption would arise that the two officers, who
executed the power of attorney on behalf of the bank, were competent
to do so. The nature ad manner of the authentication by the notary
public also support this contention. If it was not required of the notary
public to satisfy himself about the competence of these two officers to
execute the power of attorney, there was no necessity for him to
satisfy himself about their power to execute the power of attorney.
24. In the absence of any provision contained in s. 85 of the Evidence
Act, any party to a suit, etc., relying on a power of attorney would
have to prove it like any other document by producing in the witness-
box the executant of the document, or the person in whose presence it
Digitally signed
CS (Comm) No. 313/2023
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA by DEVENDRA
KUMAR 15/34
KUMAR Date: 2025.08.07
15:53:52 +0530
was so executed, or the person acquainted with the signatures of
the executant, etc., as the case may be. If that party is a company
corporated in India or in any other country, it would be further
required to prove that the person or persons executing the power
executing the power of attorney on its behalf had been duly authorised
by means of a resolution duly passed in accordance with law and the
articles of association. The purpose of s. 85, in my view, is to
eliminate all this cumbersome evidence in case such a power of
attorney is executed before and authenticated by a notary public, or
other authorities mentioned therein. If evidence to prove these facts
except the fact of execution by the executant was insisted upon, most
of the purpose of s. 85 would be frustrated specially in these days of
prevalent international trade.
16. In view of abovesaid law, it stands proved that a Power of Attorney
may carry presumption, if it was duly authenticated before the authorities
mentioned in the section. However, in this case, Special Power of Attorney
Ex.PW1/8 was neither authenticated by Notary Public, nor any other
authority mentioned in the section to raise this presumption of
authentication in favor of the plaintiff. In such condition, the plaintiff was
required to prove her Special Power of Attorney that she authorized her
husband/ PW1 to contest and prove this case. However, the plaintiff has not
appeared as witness to prove Special Power of Attorney Ex.PW1/8, nor SPA
got authenticated to raise presumption, due to authenticity of this document
could not be proved.
17. Further, PW1 has himself admitted that he himself got prepared this
Special Power of Attorney Ex.PW1/8 and the plaintiff never visited court to
get it prepared. If the plaintiff has not examined herself and was also not
present at the time of execution of Special Power of Attorney, then she
never executed any Special Power of Attorney in favour of PW1. As such,
Digitally signed
by DEVENDRA
KUMAR
CS (Comm) No. 313/2023 DEVENDRA
Date:
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Ex. PW1/8, which is bearing signature of the plaintiff, was prepared by
PW1 itself, in the absence of the plaintiff, and such conduct of PW1 cannot
be appreciated. PW1 has relied upon a false document to depose and his
testimony cannot be accepted to prove this case.
18. Further, it is to be seen as to what acts may be done by an authorized
person on behalf of the parties. Order 3 Rule 2 of CPC prescribes that an
authorized agent may put appearances, move applications and acts on
behalf of the principal. First two terms are not much relevant here but the
term acts is most relevant, which came into interpretation before various
higher courts in various cases. The landmark judgment on this issue is
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors, AIR 2005
SC 439 and relevant observations are as under;
Apart from what has been stated, this Court in the case of Vidhyadhar
vs. Manikrao and Another, (1999) 3 SCC 573 observed at page 583
SCC that “where a party to the suit does not appear in the witness-box
and states his own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise that the case
set up by him is not correct”. In civil dispute the conduct of the parties
is material. The appellants have not approached the Court with clean
hands. From the conduct of the parties it is apparent that it was a ploy
to salvage the property from sale in the execution of Decree. On the
question of power of attorney, the High Courts have divergent
views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan,
1986 2WLL 713 it was held that a general power of attorney holder
can appear, plead and act on behalf of the party but he cannot become
a witness on behalf of the party. He can only appear in his own
capacity. No one can delegate the power to appear in witness box on
behalf of himself. To appear in a witness box is altogether a different
act. A general power of attorney holder cannot be allowed to appear as
a witness on behalf of the plaintiff in the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in the case
of Ram Prasad Vs. Hari Narain & Ors. AIR 1998 Raj. 185. It was
held that the word “acts” used in Rule 2 of Order III of the CPC does
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not include the act of power of attorney holder to appear as a witness
on behalf of a party. Power of attorney holder of a party can appear
only as a witness in his personal capacity and whatever knowledge he
has about the case he can state on oath but be cannot appear as a
witness on behalf of the party in the capacity of that party. If the
plaintiff is unable to appear in the court, a commission for recording
his evidence may be issued under the relevant provisions of the CPC.
In the case of Dr.Pradeep Mohanbay Vs. Minguel Carlos
Dias reported in 2000 Vol.102 (1) Bom.L.R.908, the Goa Bench of
the Bombay High Court held that a power of attorney can file a
complaint under Section 138 but cannot depose on behalf of the
complainant. He can only appear as a witness.
However, in the case of Humberto Luis & Anr. Vs. Floriano Armando
Luis & Anr. reported in 2002 (2) Bom.C.R.754 on which the reliance
has been placed by the Tribunal in the present case, the High Court
took a dissenting view and held that the provisions contained in order
III Rule 2 of CPC cannot be construed to disentitle the power of
attorney holder to depose on behalf of his principal. The High Court
further held that the word “act” appearing in order III Rule 2 of
CPC takes within its sweep “depose”. We are unable to agree with
this view taken by the Bombay High Court in Floriano
Armando (supra).
We hold that the view taken by the Rajasthan High Court in the case
of Shambhu Dutt Shastri (supra) followed and reiterated in the case
of Ram Prasad (supra) is the correct view. The view taken in the case
of Floriano Armando Luis (supra) cannot be said to have laid down a
correct law and is accordingly overruled. In the view that we have
taken we hold that the appellants have failed to discharge the burden
that they have contributed towards the purchase of property at 38,
Koregaon Park, Pune from any independent source of income and
failed to prove that they were co- owners of the property at 38,
Koregaon Park, Pune. This being the core question, on this score
alone, the appeal is liable to be dismissed
19. Further, in case titled Man Kaur (Dead) By Lrs vs Hartar Singh
Sangha, CIVIL APPEAL NOS. 147-148 OF 2001, it has held that;
12. We may now summarise for convenience, the position as to who
should give evidence in regard to matters involving personal
knowledge:
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by DEVENDRA
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(a) An attorney holder who has signed the plaint and instituted the
suit, but has no personal knowledge of the transaction can only give
formal evidence about the validity of the power of attorney and the
filing of the suit.
(b) If the attorney holder has done any act or handled any transactions,
in pursuance of the power of attorney granted by the principal, he may
be examined as a witness to prove those acts or transactions. If the
attorney holder alone has personal knowledge of such acts and
transactions and not the principal, the attorney holder shall be
examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his
principal for the acts done by the principal or transactions or dealings
of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or
dealt with or participated in the transaction and has no personal
knowledge of the transaction, and where the entire transaction has
been handled by an attorney holder, necessarily the attorney holder
alone can give evidence in regard to the transaction. This frequently
happens in case of principals carrying on business through authorized
managers/attorney holders or persons residing abroad managing their
affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a
particular attorney holder, the principal has to examine that attorney
holder to prove the transaction, and not a different or subsequent
attorney holder.
(f) Where different attorney holders had dealt with the matter at
different stages of the transaction, if evidence has to be led as to what
transpired at those different stages, all the attorney holders will have
to be examined.
(g) Where the law requires or contemplated the plaintiff or other party
to a proceeding, to establish or prove something with reference to his
`state of mind’ or `conduct’, normally the person concerned alone has
to give evidence and not an attorney holder. A landlord who seeks
eviction of his tenant, on the ground of his `bona fide’ need and a
purchaser seeking specific performance who has to show his
`readiness and willingness’ fall under this category. There is however
a recognized exception to this requirement. Where all the affairs of a
party are completely managed, transacted and looked after by an
attorney (who may happen to be a close family member), it may be
possible to accept the evidence of such attorney even with reference to
bona fides or `readiness and willingness’. Examples of such attorney
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holders are a husband/wife exclusively managing the affairs of his/her
spouse, a son/daughter exclusively managing the affairs of an old and
infirm parent, a father/mother exclusively managing the affairs of a
son/daughter living abroad.
20. In view of abovesaid case law, it stands proved that the term acts
does not include power of deposition, which cannot be delegated through
Power of Attorney. The witness deposing before the court must have
personal knowledge and, in the absence of any personal knowledge, Power
of Attorney cannot prove any fact. No doubt close family members
managing family affairs may have personal knowledge about a case, but it
must be proved by evidence of said witness and veracity of such witness
must be checked on the touchstone of cross examination.
21. However, in this case, the plaintiff has not examined herself to prove
institution of this case, though this suit was instituted by her. The plaintiff
was supposed to examine herself to prove that she was owner / landlord of
the suit property and let out it to the defendant against monthly rent of Rs. 2
Lacs per month. It was also to be proved that the defendant failed to pay
rent of the suit property, due to she has filed this case. However, the plaintiff
has preferred not to examine herself, whereas PW1 has admitted that he has
not gone through even content of lease deed Ex.PW1/4, which suggests that
PW1 was not appropriate witness to prove this case.
22. Admittedly, if a witness was not aware about the contents of a power
of attorney or lease deed, then how he can prove termination of lease.
Similarly, legal notice was also supposed to be proved by the plaintiff,
which is again not proved. Plaintiff was supposed to prove, as to when the
Digitally signed
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Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. KUMAR Date: 20/34
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tenancy was commenced or when possession was handed over, or that
outstanding amount was not paid by the defendant, as settlement document
by which tenancy was surrendered was also signed by the plaintiff only and
not by PW1. The possession of the suit property was to be handed over to
the plaintiff and rent was also payable to her only, due to, in the absence of
examination of the plaintiff, all such facts could not be proved including
institution of this suit. The facts deposed by PW1 suggests that the plaintiff
has delegated the power to deposed to him, which was not supposed to be
done, due to facts of this case could not be proved.
23. No doubt, PW1 was / is husband of the plaintiff and must have been
handling her affairs, but he has shown his ignorance for many material facts
and rather has admitted that he got prepared Special Power of Attorney of
the plaintiff of his own and has failed to pass the test of cross examination.
In fact, the testimony of PW1 is not sufficient to prove this case and case
could not be proved through the testimony of Special Power of Attorney of
the plaintiff.
Whether Adverse Inference May be Drawn Against Plaintiff for Her
Non-Examination?
24. Another plea taken by the defendant is that an adverse inference may
be drawn against the plaintiff that she has filed a false case that is why she
has not examined herself. Admittedly, if any party fails to examine himself/
herself to prove his / her case, then an adverse inference may be drawn
against him/her. The law to this effect has laid down by case titled
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Vidhyadhar vs Manikrao & Anr., AIR 1999 SC1441 and relevant
observations are as under:
16. Where a party to the suit does not appear into the witness box and
states his own case on oath and does not offer himself to be cross
examined by the other side, a presumption would arise that the case
set up by him is not correct as has been held in a series of decisions
passed by various High Courts and the Privy Council beginning from
the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and
Anr. . This was followed by the Lahore High Court in Kirpa Singh v.
Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High
Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao
Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court
in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also
followed the Privy Council decision in Sardar Gurbakhsh Singh‘s case
(supra). The Allahabad High Court in Arjun Singh v. Virender Nath
and Anr. held that if a party abstains from entering the witness box, it
would give rise to an inference adverse against him. Similarly, a
Division Bench of the Punjab & Haryana High Court in Bhagwan
Dass v. Bhishan Chand and Ors. , drew a presumption under Section
114 of the Evidence Act against a party who did not enter into the
witness box.
17. Defendant No. 1 himself was not a party to the transaction of sale
between defendant No. 2 and the plaintiff. He himself had no personal
knowledge of the terms settled between defendant No. 2 and the
plaintiff. The transaction was not settled in his presence nor was any
payment made in his presence. Nor, for that matter, was he a scribe or
marginal witness of that sale deed. Could, in this situation, defendant
No. 1 have raised a plea as to the validity of the sale deed on the
ground of inadequacy of consideration or part-payment thereof?
Defendant No. 2 alone, who was the executant of the sale deed, could
have raised an objection as to the validity of the sale deed on the
ground that it was without consideration or that the consideration paid
to him was highly inadequate. But he, as pointed out earlier, admitted
the claim of the plaintiff whose claim in the suit was based on the sale
deed, executed by defendant No. 2 in his favour. The property having
been transferred to him, the plaintiff became entitled to all the reliefs
which could have been claimed by defendant No. 2 against defendant
No. 1 including redemption of the mortgaged property.
19. In Lal Achal Ram v. Raja Kazim Hussain Khan (1905) 32 Indian
Appeals 113, the Privy Council laid down the principle that a stranger
to a sale deed cannot dispute payment of consideration or its
adequacy. This decision has since been considered by various High
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Courts and a distinction has been drawn between a deed which was
intended to be real or operative between the parties and a deed which
is fictitious in character and was never designed as a genuine
document to effect transfer of title. In such a situation, it would be
open even to a stranger to impeach the deed as void and invalid on all
possible grounds. This was also laid down in Kamini Kumar Deb v.
Durga Charan Nag and Ors. AIR (1923) Calcutta 521 and again
in Saradindu Mukherjee v. S.M. Kunja Katnini Roy and Ors. . The
Patna High Court in Jugal Kishore Tiwari and Anr. v. Umesh Chandra
Tiwari and Ors. and the Orissa High Court in Sanatan Mohapatra and
Ors. v. Hakim Mohammad Kazim Mohammad and Ors. have also
taken the same view.
20. The above decisions appear to be based on the principle that a
person in his capacity as a defendant can raise any legitimate plea
available to him under law to defeat the suit of the plaintiff. This
would also include the plea that the sale deed by which title to the
property was intended to be conveyed to plaintiff was void or
fictitious or, for that matter, collusive and not intended to be acted
upon. Thus, the whole question would depend upon the pleadings of
the parties, the nature of the suit, the nature of the deed, the evidence
led by the parties in the suit and other attending circumstances.
In view of this case law, it stands proved that the plaintiff was a material
witness and she was supposed to prove institution of this case coupled with
all the documents and facts giving raise to seek this relief of recovery, but
she has preferred not to examine herself, due to an adverse inference has to
be drawn against her that she has filed a case which was not correct and her
non examination is fatal to this case.
Whether The Plaintiff Concealed MOU Ex.PW1/D1 From This Court?
25. Ld. Counsel for defendant has argued that the plaintiff has executed
one MOU Ex.PW1/D1, which was executed between the parties at the time
of settlement, but the plaintiff has concealed this document deliberately. It
is further argued that the defendant executed this document to compromise
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all disputes and surrendered the possession of the suit premises to the
plaintiff, but she has not disclosed this MOU just to take undue benefits,
otherwise she was agreed not to institute any further case qua suit property
except the suit already pending, whereas she has violated the terms of this
MOU and the present suit filed in violation of this MOU is liable to be
dismissed.
26. On the other hand, Ld. Counsel for plaintiff has argued that MOU
was not concealed by the plaintiff and rather PW1 has admitted this
document, due to the plea taken by the defendant is not sustainable. It is
further argued that this suit is in continuation of earlier suit filed before the
court of Ld. ADJ, which was returned u/o 7 rule 10 CPC. It is further
argued that the plaintiff was within her rights to make necessary
amendments in the suit after taking it back from the court to bring it with
the jurisdiction of this court, which was even legally permissible. It is
further argued that modification / amendment made in the suit has not
changed the nature of the suit, due to there is neither any concealment nor
change in the nature of the suit and both the pleas taken by the defendant
are liable to be discarded.
27. Admittedly, the plaintiff tendered a copy of MOU on record as Mark
A, which was exhibited during cross examination of PW1 as Ex.PW1/D1,
which suggests that the plaintiff did not conceal this document from this
court. No doubt this document was not disclosed initially and was filed later
on, but still it cannot be said concealment. The plea taken by the defendant
that the document was concealed by the plaintiff has no force.
Digitally signed
by DEVENDRA
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Date:
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Whether This Suit Is A New Suit and Barred By MOU/Ex.PW1/D1?
28. Ld. Counsel for defendant has further argued that Ex.PW1/D1 was
prepared by both the parties to set out terms and conditions of settlement,
as per which, the plaintiff was not allowed to file any other suit against the
defendant except the suit already pending. It is further argued by Ld.
Counsel for defendant that the plaintiff has violated the terms of MOU, due
to this suit is liable to be dismissed.
29. Ld. Counsel for defendant has further argued that the suit of the
plaintiff was already pending before the court of Ld. ADJ, due to both the
parties agreed not to file any other suit, which was returned u/o 7 rule 10 of
CPC. However, the plaintiff instead of filing similar suit, has filed another
one by adding more amount in clear violation of MOU. It is further argued
that the same suit returned by the court was supposed to be filed before this
court but the plaintiff has made various amendments and that too without
permission of the court, which suggests that this suit may be considered a
fresh suit in terms of MOU and same is liable to be dismissed.
30. On the other hand, Ld. Counsel for plaintiff has argued that the
plaintiff withdrew earlier suit pending before the Court of Ld. ADJ on
account implementation of the Commercial Courts Act, 2015 and presented
the same suit by adding some more due amount to avoid multiplicity of
litigation, due to this suit is very well maintainable. It is further argued that
the plaintiff was within her powers to make necessary amendments in the
suit to bring it within the jurisdiction of this court, due to this suit is very
well maintainable.
Digitally signed
by DEVENDRA
CS (Comm) No. 313/2023
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31. I have gone through record. Admittedly, the plaintiff has not
presented the similar plaint before the court, which was returned U/O 7
Rule 10 of CPC, which is evident from the reliefs claimed in both the
pleadings. Now issue arises, as to whether the plaintiff was within her rights
to make additions in the suit returned u/o 7 rule 10 CPC before its
presentation before the competent court of jurisdiction or not? Before
giving answer to this question, it is necessary to go through legal
proposition regarding it.
32. The Hon’ble Supreme Court has held in case titled Hanamanthappa
& Anr v. Chandrashekharappa & Ors, AIR 1997 SC 1307 as under:
It is contended by Shri Kulkarni, learned counsel for the petitioners,
that since the petition had been filed with amended averments in the
plaint, necessarily it must be treated to be a fresh plaint and not one
after representation to the proper court. We find no force in the
contention. The object of Order VII, Rule 10-A is that the plaintiff, on
return of the plaint, can either challenge in an appellate forum or
represent to the court having territorial jurisdiction to entertain the
suit. In substance, it is a suit filed afresh subject to the limitation,
pecuniary jurisdiction and payment of the court fee as had rightly
been pointed out by the High Court. Therefore, it cannot be dismissed
on the ground that the plaintiff made averments which did not find
place in the original plaint presented before the court of District
Munsiff, Navalgund. It is not always necessary for the plaintiff to seek
amendment of the plaint under Order VI, Rule 17, CPC. At best it can
be treated to be a fresh plaint and the matter can be proceeded with
according to law. Under those circumstances, we do not think that
there is any error of law committed by the High Court in giving the
above direction.
33. Further, in case titled ONGC Ltd vs M/S. Modern Construction And
Co., 2013 AIR SCW 5806, it has held that;
13. Thus, in view of the above, the law on the issue can be
summarised to the effect that if the court where the suit is instituted, is
of the view that it has no jurisdiction, the plaint is to be returned in
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view of the provisions of Order VII Rule 10 CPC and the plaintiff can
present it before the court having competent jurisdiction. In such a
factual matrix, the plaintiff is entitled to exclude the period during
which he prosecuted the case before the court having no jurisdiction
in view of the provisions of Section 14 of the Limitation Act, and
may also seek adjustment of court fee paid in that court. However,
after presentation before the court of competent jurisdiction, the plaint
is to be considered as a fresh plaint and the trial is to be conducted de
novo even if it stood concluded before the court having no
competence to try the same.
In view of the abovesaid judgments, it stands proved that the amendment
in the pleadings after returning u/o 7 rule 10 CPC is permissible, but it
shall be considered a new suit.
34. However, present suit is under the provisions of The Commercial
Courts Act, 2015, which has amended many provisions of CPC, due to it
has to be seen, as to whether such amendment is allowed after returning
of the plaint u/o 7 rule 10 CPC to present before the commercial courts.
The observation of Hon’ble High Court of Delhi in case titled Virender
Kumar v. Rekha Bhayana, CM (M) 842/2022, is as under:
11. There is a clear difference in protocol between commercial suits
and non-commercial suits. Commercial suits follow their own distinct
procedure, and are subjected to much greater rigour than non-
commercial suits. A commercial suit has its own distinct format,
which involves, inter alia, the requirement of filing a Statement of
Truth both with the plaint as well as with the written statement.
12. Various provisions of the CPC, including Section 26, Section 35,
Section 35-A, have been amended by the Commercial Courts Act to
cater to commercial suits. It would, therefore, be counter- productive
to permit commercial suits, which have not been filed following the
protocol prescribed in, or in the format prescribed by, the Commercial
Courts Act, to be transferred to the Commercial Court as a matter of
course.
Digitally signed
by DEVENDRA
CS (Comm) No. 313/2023 KUMAR
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14. Commercial Courts are different from non-Commercial Courts. If
a commercial suit is instituted before a Civil Court, it is, clearly,
instituted before a Court other than the Court before which it should
have been instituted. Order VII Rule 10 (1), in such circumstances,
directly comes into play and requires the suit to be returned to the
plaintiff to be instituted before the appropriate Court, i.e., the
Commercial Court.
In fact, this case has laid down that a plaint has to be returned to the
plaintiff to present the same before the court of appropriate jurisdiction and
not to be rejected. However, this issue is not involved in this case.
35. Another case relied upon by the Ld. counsel for plaintiff is case titled
Mrs Kanti Singh & Ors. vs Lords Mark Industries Pvt. Ltd & Anr., CM(M)
1455/2023 and the relevant observations are as under:
38. Order VII Rule 10 CPC mandates return of plaint for approaching
the competent court. The law provides that if the court where the suit
is instituted, is of the view that it has no jurisdiction, the plaint is to be
returned in view of the provisions of Order VII Rule 10 CPC and the
plaintiff can present it before the court having competent jurisdiction.
It is no more res integra, that a court of District Judge, Commercial
Court is a court of competent jurisdiction for holding trial of a
commercial suit.
39. Pertinently, the present suit is being tried by the Court of
competent jurisdiction i.e., District Judge, Commercial Court.
Moreover by following the amendment procedure, the non-
commerical suit of the plaintiff has been amended and is now a
commercial suit as per the provisions of the Commercial Courts
Act and thereby confirms to the protocol and procedure of a
commercial suit. Moreso, the impleadment of Section 12A of the
Commercial Courts Act has also been removed as is apparent from the
order dated 13.12.2021 passed by the learned District Judge,
Commercial Court. The learned Trial Court has adopted a hyper
technical view by suo moto reviewing the orders dated 05.04.2021
and 28.04.2021 and passing the impugned order on the basis of the
judgment titled as Virendra Kumar vs Rekha Bhayana (supra) which
was passed subsequent to the passing of the aforesaid transfer orders.
Digitally signed
by DEVENDRA
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Similarly, the facts of this judgment were also altogether different to the
present case, as in that case amendment application was moved after
returning of the plaint and order was reviewed on the basis of subsequent
judgment of Hon’ble High Court, which are not the facts of this case.
36. In fact, judgments relied upon by Ld. Counsel for defendant are
dealing with return of the plaint by civil court to present the same before
the commercial courts and it was observed that necessary amendments
may be sought to bring the case into the jurisdiction of the court. As
such, the case with amendments after returning of the plaint shall be
considered a new case as held in Hanamanthappa & Anr v.
Chandrashekharappa & Ors, AIR 1997 SC 1307 & ONGC Ltd vs M/S.
Modern Construction And Co., 2013 AIR SCW 5806.
37. Now the plea of the defendant has to be determined. Defendant has
taken a plea that the present suit was barred by MOU/ Ex.PW1/D1, as
both the parties agreed not to file any fresh case after the case already
pending. On the other hand, Ld. Counsel for plaintiff has argued that this
case was not barred as term suits has been used in MOU which classifies
a class of suits, like recovery of arrears of rent case, which were allowed
and not any other type of suit/s.
38. However, before determining the plea of the defendant, it is
necessary to go through the contents of MOU/ Ex.PW1/D1 as under:
Now the memorandum of settlement witnesseth as under:-
1. That the second party has agreed to vacate the said property and
handing over the vacant physical possession of the above mentioned
tenanted property to the first party at the time of singing thisDigitally signed
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Date: 2025.08.07
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Memorandum of understanding and the first party has agreed to
receive the vacant physical possession of the said property from the
second party.
2. That the second party will clear all the pending dues of
abovementioned property till 05.01.2022 such as electricity charges,
water charges except the monthly rent for which the first party already
filed a suit for recovery.
3. Xxxxxxxxxxxxxxxxxxxx
4. That the first party herein undertakes that the first party will not file
any suit, claim, complaint against second party before any court,
authority, forum etc. except the recovery suits of arrears of rent which
already has been filed by the first party against the second party.
5. Xxxxxxxxxxxxxxxxxxxx
6. That both the parties have undertaken to remain bound by the terms of
the present MOU and shall not resile back.
Perusal of abovesaid terms/ clauses, it is clear that both the parties were
agreed by Clause 4 that first party / plaintiff shall not file any other suit /
claim/ complaint against second party/ defendant except the suits of
recovery of arrears of rent already filed. In fact, there was only one single
suit pending between the parties and they agreed not to file any other suit
after execution of Ex.PW1/D1, thereby meaning no other suit was allowed
to be filed.
39. Admittedly, the plaintiff initially filed this case before the court of
Ld. ADJ, copy of which is Ex.PW1/3. The said case was returned under
Order 7 Rule 10 CPC on the basis of application of the plaintiff Ex.PW1/1.
Order 7 Rule 10 CPC prescribes that the plaint has to be returned with
endorsement of the court to present the same before the court of
appropriate jurisdiction. However, new averments may be made only after
presentation of the returned plaint, with the permission of the court, in
Digitally signed by
CS (Comm) No. 313/2023
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA DEVENDRA
KUMAR 30/34
KUMAR Date: 2025.08.07
15:55:32 +0530
terms of Order 6 Rule 17 CPC. New averments may be made in routine
manner in a plaint rejected under order 7 rule 11 CPC to overcome
objections of rejection of the suit, as a suit under order 7 rule 13 of CPC is
allowed. However, this procedure is not permissible in a case under order 7
Rule 10 CPC, and if allowed, then it shall be considered a new case, which
was not allowed by Ex.PW1/D1.
40. In fact, both the parties were well aware that only one case was
pending between them, otherwise they would have mentioned about other
cases also, if they were going to settle their all disputes. PW1 has deposed
during examination in chief that the defendant handed over the possession
of the suit property to the plaintiff on 15.01.2022 (On 05.01.22 mentioned
in Ex.PW1/D1) and if the suit property was vacated through Ex.PW1/D1,
then it can be easily assumed that both the parties agreed not to file any
subsequent case, which may be considered the present case also.
41. If the interpretation of Ld. Counsel for defendant that this clause
excludes a class of all recovery suits of arrears of rent is accepted, then the
plaintiff may file a number of cases despite execution of Ex.PW1/D1,
which was never intention of the parties. In fact, both the parties were well
aware that only one case was pending between them and they agreed not to
file any further suit in future. However, the plaintiff very cleverly took the
opportunity of returning of the suit of Rs. 16 Lacs by Ld. ADJ and made
amendments without permission of the court and enhanced its valuation for
Rs. 52,32,000/- and refiled it in the year 2023, which cannot be justified in
any manner and amounts to violation of Clause 4 of MOU. As such, this
Digitally signed
by DEVENDRA
CS (Comm) No. 313/2023 DEVENDRA KUMAR
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. KUMAR Date: 31/34
2025.08.07
15:55:39 +0530
suit is hit by Clause 4 of MOU and is not maintainable. In fact, the plaintiff
could have recovered amount of Rs. 16 Lacs involved in Ex.PW1/3 i.e. in
earlier suit, but not amount of this suit.
Whether Tenancy Terminated by Force Majeure?
42. Plaintiff has filed this suit for recovery of Rs. 52,32,000/-, which is
opposed by Ld. Counsel for defendant. Before determining the claim of the
plaintiff, it is necessary to ascertain, as to whether tenancy of the defendant
got terminated or surrendered?
43. Admittedly, a lease deed Ex.PW1/4 was executed between the parties
and rate of rent of the tenanted premises was fixed Rs. 2 Lacs per month.
The tenure of tenancy was determined by Clause 1.1. and initial term was
for 9 years, with lock in period of 18 months, with clause of further
extension for 9 years at the option of the defendant. The defendant has
alleged that Clause 4.1. provides for termination of lease on the ground for
Force Majeure, in case of any natural calamity like war/ fires/ floods/ civil
commotion/ riots / earthquakes/terrorism / strikes / lockouts/ not causing by
the willful misconduct of the parties. In such case, lease deed was to be
suspended, if situation continued for 1 month and then was terminable after
3 months.
44. Ld. Counsel for defendant has argued that the defendant served a legal
notice Ex.PW1/7 upon the plaintiff and same is not disputed by the plaintiff
also, but cannot be considered a due notice to the plaintiff. Clause 4.1. of
lease deed prescribes for suspension of lease deed in case of natural
Digitally signed
CS (Comm) No. 313/2023 DEVENDRA by DEVENDRA
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. KUMAR 32/34
KUMAR Date: 2025.08.07
15:55:45 +0530
calamity for 1 month and then terminable, but the defendant did not
terminate the tenancy by this legal notice. Rather legal notice was not
addressed to the plaintiff.
45. Clause 6.2. of lease deed provides for termination of tenancy by
serving of a legal notice of 6 months. It is not disputed that termination of
tenancy is to be governed either by terms of the lease deed or by section
106 of TP Act, whereas in this case, lease deed has defined a period of 6
months to terminate the lease deed, due to 6 months advance notice was
required, which was not served, due to lease deed could not be terminated
by intimation. In fact, information was just to intimate to invoke Force
Majeure and not for termination of tenancy, which was surrendered through
MOU / Ex.PW1/D1. As such, the tenancy was not terminated by Force
Majeure.
46. Now issue arises, as to whether the plaintiff was entitled to recover
rent despite invoking Force Majeure due to Corona 19 pandemic or not?
Clause 4.1. governs Force Majeure but this clause gave option to the
defendant to terminate lease deed on this ground but it was nowhere
mentioned that rent was not payable. If option to terminate lease deed was
not exercised by the defendant, then rent could have been suspended only
for 1 month and 3 months period was not for suspension of rent but for
termination of lease deed, due to lease amount was payable by the
defendant till surrender of the possession of the premises through
Ex.PW1/D1. The rent shall be recoverable in terms of judgment of Hon’ble
High court of Delhi titled Ramanand & Ors v. Dr. Girish Soni & Ors, AIR
CS (Comm) No. 313/2023 Digitally signed
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. DEVENDRA by DEVENDRA
KUMAR 33/34
KUMAR Date: 2025.08.07
15:55:54 +0530
2020 Delhi 96, but the plaintiff had already forgone this recovery by
executing Ex.PW1/D1 at the time of accepting possession of the tenanted
premises on 05.01.2022. No doubt, she was entitled to pursue earlier suit
Ex.PW1/3 for recovery of Rs, 16 Lacs, but after withdrawal of said suit, this
suit is not maintainable being barred by Ex.PW1/D1.
47. In fact, the plaintiff was entitled to recover the suit amount mentioned
in Ex.PW1/3 but she has filed a new suit for recovery of rent for the period
from January, 2020 to December 2021, which was already forgone, due to
she has failed to prove this case, not legally but also factually. As such, the
plaintiff has failed to prove this case and this issue no.1 is decided in favor
of the defendant and against the plaintiff.
48. ISSUE No. 2: This issue is related to issue no. 1 and since the
plaintiff is not entitled for recovery of rent, due to interest is out of question
and the plaintiff has again failed to discharge onus to prove this issue no. 2
and issue is decided against the plaintiff and in favour of the defendant.
49. Relief:- In view of my findings on the aforesaid issues, the suit of the
plaintiff is not maintainable, hence dismissed. Decree sheet be prepared.
No order as to cost. File be consigned to Record Room after necessary
Digitally signed
compliance. by DEVENDRA
DEVENDRA KUMAR
ANNOUNCED IN OPEN COURT KUMAR Date: 2025.08.07
15:56:02 +0530
ON 7th day of August, 2025
(DEVENDER KUMAR)
District Judge (Commercial Court-01)
East District
Karkardooma Courts, Delhi
CS (Comm) No. 313/2023
Rupali Rai Vs. Sshubh Aarambh Propdeal Pvt. Ltd. 34/34
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