Delhi District Court
Ardee Mall Maintenance Services Pvt Ltd vs Purshottam Sarup Aggarwal Huf on 23 December, 2024
-1-
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 restaurantCS (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 monthCS (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
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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 theCS (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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 branchCS (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 theCS (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 communicationsCS (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 ofCS (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? OPDIssue 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; and60.5 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 claimCS (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 toCS (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 orCS (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 ofCS (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, theCS (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:-
“xxxx
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 DELHICS (COMM.) /157/2022 Page 55 of 55