REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 21341 OF 2019

INFINITY INFOTECH PARKS LIMITED        …PETITIONER(S)

VERSUS

SHIVA JUTE MILLS PRIVATE LIMITED  THROUGH CHIEF EXECUTIVE  (AUTHORISED SIGNATORY) & ANR.        …RESPONDENT(S)

O R D E R

Deepak Gupta, J.

This  petition is  directed  against the  order  passed  by the

High Court of Calcutta dated 31.07.2019 in C.O. No.541 of 2019

whereby it  allowed the petition of the respondent no. 1 herein

and directed the petitioner herein to restore the electricity of the

property occupied by the respondent no.1 herein.   

2. The grievance of the petitioner is that the respondent no. 1

who is occupying the 16th  floor of the building in question

comprising about 29,445 sq. ft., has not paid a single rupee on

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account of  lease rent,  maintenance charges, electricity charges

and other charges and, therefore, the order directing restoration

of electricity without requiring the tenant­sub lessee to pay the

requisite charges is totally without jurisdiction.   

3. We are only referring to the facts which are necessary for

decision of this case and our discussion is restricted to passing

an equitable order.  The facts, shorn of unnecessary details, are

that the petitioner­ Infinity Infotech Parks Limited is a lessee in

the building known as INFINITY BENCHMARK, Bidhannagar, in

the District of North 24­Parganas, Kolkata.  The 16th floor of the

said building  was divided  into  3 offices.  The entire  16th  floor

along with 5 car parking spaces was sub­leased by the petitioner

in favour of the respondent no. 2­ M/s. Pearl Studios Pvt. Ltd.,

which in turn sub­leased the entire premises in favour of

respondent no. 1 vide lease deed dated 01.02.2012 and the

admitted case of the parties is that from 01.02.2012, the

respondent no. 1 is in occupation of the property.   The claim of

the petitioner is that it is entitled to Rs.7,29,240/­ on account of

lease rent up to 02.12.2019.   

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4. At the outset, we may note that certain disputes between

petitioner and respondent no. 2 are the subject matter of

arbitration proceedings and, therefore, we are not commenting on

the merits of the same and are confining ourselves to the

admitted fact that respondent no. 1 is in possession of the entire

premises from 01.02.2012.   We may also note that an objection

was raised that the sub­lease in favour of respondent no. 1 is

unregistered and insufficiently stamped and, therefore, should be

impounded.   We feel that this is a matter for the trial court to

decide and we have looked into the lease deed only to strike out a

balance between the parties and anything said in this order is

without prejudice to the rights of the parties with regard to the

admissibility of the lease deed in evidence. We make it clear that

we have passed this order at the interim stage and any

observations made herein are only for passing this interim order

and shall not be taken into consideration while deciding the main

proceedings which must be decided on the basis of the evidence

led before the trial court or the arbitral tribunal.

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5. The petitioner claims Rs.7,29,240/­ as lease rent from

01.02.2012 to 02.12.2019 which amount is not seriously

disputed by the respondent no. 1.   

6. The petitioner has also claimed a sum of Rs.15 per sq. ft.

per month as maintenance charges inclusive of taxes for the 3

office areas measuring 29,445 sq. ft.  Reference has been made to

clause 5 and 7 of the lease deed, which are reproduced as under:

“V. To bear and pay proportionate share of all kinds of expenses for all periodical repairs for common areas of the said building, Air conditioning, additions, alterations, treatment, polishing, maintaining, rebuilding and cleaning, painting, entrances, common landings corridors, staircases, sewers, drains pipes, electric lines and installation, insurance and other conveniences including annual maintenance charges in respect thereof as may be incurred by the Sub­Lessor, from time to time and such proportionate share together with service tax shall  be calculated and apportioned by the Sub­Lessor conclusively and the same shall be binding on the Sub­ Lessee.

  xxx         xxx xxx

VII. It is made clear that the said service and maintenance together with air­conditioning charges as envisaged herein to be provided by the Sub­Lessor to the Sub­Lessee and such charges for the same shall be based upon all kinds of actual proportionate costs, charges and expenses of whatsoever nature plus 20% (twenty percent) management fee to be levied thereon and service tax as may be applicable shall be paid by the Sub­Lessee to the Sub­Lessor during the subsistence of this Sub­Lease and such proportionate share together with service tax shall be calculated and apportioned by the Sub­Lessor conclusively and the same shall be binding on the Sub­

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Lessee, provided further it is made clear that the Sub­ Lessee shall pay aforesaid charges for common services and maintenance as enumerated in the Fifth Schedule as stated hereunder and air­conditioning charges to be provided in the said sub­demised space at the fixed rate of Rs.15/­ per Sq.ft. for a period of one year from the date of commencement hereof and Sub­Lessor shall give rebate at the rate of  Rs.  7/­ per Sq.ft.  out  of the said charges of Rs.15/­ per Sq.ft. for the initial period of two months from the date of commencement and thereafter with effect from 15th November, 2009 until the completion of one year the Sub­Lessee shall pay at the rate of Rs.15/­ per Sq.ft. per month as stated hereinabove.”

7. The case of the petitioner is that the respondent no.1 has

not paid a single rupee as maintenance charges and as per the

terms of the lease deed, Rs.15/­ per sq. ft. was to be paid except

for the months of August and September, 2009 for which a

rebate of Rs.7 per sq. ft. was to be given, meaning thereby that

for these two months only Rs.8/­ per sq. ft. was to be charged.

On the other hand, on behalf of the respondent no. 1 it is claimed

that no air­conditioning is being provided to the premises in its

possession and, therefore, the rate of Rs.15/­ per sq. ft. is not

payable.   Relying upon clause 7 quoted hereinabove, it is

contended that the amount of  Rs.15/­ per sq. ft.  was payable

only for the first year from commencement of the sub­lease and,

thereafter, it was to be paid on actual basis plus 20% as

management fees to be levied thereupon and service tax as may

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be applicable.  It is submitted on behalf of the respondent no. 1

that the management never raised invoices on the basis of the

actual expenses incurred by it and, therefore, this amount was

not paid.

8. We have considered the rival contentions of the parties and

we make it clear that we are not deciding this plea on merits.

However,  we  have  no  doubt in our  mind that the sub­lessee

cannot claim that no amount is payable by it.  It has not paid a

single rupee to the petitioner despite occupying the premises for

more than 7 years.   We cannot appreciate this conduct of the

sub­lessee.  In a multi­storeyed building of this nature there has

to be provision for security guards, cleaning services, lift

operators, parking attendants, etc. When the parties had agreed

that Rs.15/­ per sq. ft. per month would be paid in the first year,

we can presume that the sub­lessee must have satisfied  itself

that these are the approximate expenses to be incurred by the

petitioner for maintenance of the building.  Since air­conditioning

has admittedly not been provided by the petitioner, for the

purpose of this order, we deem it fit and proper to fix the

maintenance charges at 50% of the regular rate by giving a

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discount  of  50%  for  not  providing the  air­conditioning,  which

comes to Rs.7.50 per sq. ft.   The maintenance charges payable

@7.50 per sq. ft. for 29,445 sq. ft. works out to Rs.2,20,837.50

per month which are rounded of to 2,20,000/­ per month.

9. Coming to the second claim of electricity charges, the

petitioner has claimed minimum demand charges at Rs. 384 per

KVA per month plus electricity duty, transmission and

distribution losses from the electricity bills placed on record by

both the sides.  It is not disputed that the entire building has a

sanctioned load of 1445 KVA.  The sanctioned load in respect of

the premises on the 16th  floor works out to 266.43 KVA.   The

contention of the respondent no.1 is that it has hardly used the

premises  and  is  only liable to  pay the  actual charges for the

electricity consumed by it.  It  is also contended that since the

petitioner has not raised invoices or produced the bills of actual

consumption of the 16th  floor, the respondent no.1 is not liable

make such payment.    We  find that the  respondent  no.1  has

placed on record bills of the year 2011 raised by the petitioner in

respect of the same premises to the account of Pearl Studios Pvt.

Ltd.­respondent no. 2 and these bills are for a sum of

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Rs.76,571/­ + Rs.59,706/­ + Rs.3,96,855/­ i.e. total

Rs.5,33,132/­,   for a period of approximately one month.

Electricity tariff  has not come down and the contention of  the

respondent no.1 that it is only liable to pay electricity charges at

the rate of Rs. 10,000/­, cannot be accepted.   The area in  its

possession is almost 30,000 sq. ft.   Even if there is no air­

conditioning, the sanctioned load is 266.43 KVA.   According to

the bill of 04.11.2019, the demand charges are Rs. 384 per KVA

per month.  Therefore, at present the minimum demand charges

for 266.43 KVA works out to Rs.1,02,309.12.   In any event, the

respondent no.1 cannot escape its liability has to pay the

minimum demand charges.  It is contended that earlier demand

charges were at a lower rate of Rs. 317 per KVA but we are sure

that there may have been some months where the respondent

no.1 may have utilised more than the minimum demand and it is

liable to  pay  minimum charges  which  for the  purpose  of this

order are ascertained at Rs.1,00,000/­ per month.  In addition to

the minimum demand charges, some fixed charges are payable to

the West Bengal State Electricity Distribution Company Ltd. in

addition to the energy consumed charges.  Keeping  all these

factors into consideration we feel that as an interim measure the

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respondent no.1 shall pay at least Rs.1,10,000/­ per month on

this account.  

10. It  was  also  urged  on behalf  of the respondent  no.1 that

there were some periods during which the electricity was

disconnected and, therefore, it should not be asked to pay any

charges for the said period.   We are not in agreement with the

said submission.  The respondent no.1 did not pay a single rupee

either on account of lease rent, maintenance charges, electricity

charges or other charges and in such event, the petitioner had no

option but to disconnect the electricity.  We are, therefore, of the

view that  the High Court clearly misdirected  itself in directing

restoration of the electricity without ensuring payment of some

amount to the petitioner.  

11. As far as the claim of the petitioner for other charges

including water charges are concerned, we are not passing any

order at this stage.   We are also not passing any order for

payment of interest at this stage.   These can be finally

determined by the Court which decides the matter.   Therefore,

the  liability only on account of minimum electricity charges of

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Rs.1,10,000/­ per month from 01.02.2012 till 31.01.2020 works

out to Rs.1,05,60,000/­.

12. In view of the aforesaid discussion we set aside the order of

the Calcutta High Court and direct as under:

I.  We are of the view that respondent no. 1 must pay the

following amounts for the restoration of electricity:­

i) Lease Rent of Rs.7,29,240 (for the period from

01.02.2012 to 02.12.2019).

ii) Maintenance charges of Rs.2,11,20,000 (@

Rs.2,20,000 per month from 01.02.2012 to

31.01.2020).

iii) Electricity charges of Rs.1,05,60,000 (@ Rs.1,10,000

per month from 01.02.2012 to 31.01.2020).

II. Out of the total of Rs. 3,24,09,240 payable by respondent

no.1, we direct  it  to pay Rs.1,00,00,000 within one month

from today. Respondent no.1 shall pay the rest of the amount

in three equal instalments of  Rs.74,69,746,  Rs.74,69,747,

and Rs. Rs.74,69,747 to be paid on 15.03.2020, 15.04.2020

and 15.05.2020 respectively.  

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III. In case the respondent no.1 pays the amount of

Rs.1,00,00,000/­ to the petitioner then within 3 days of this

payment, the petitioner shall restore the electricity.   

IV. With respect to the lease rent, electricity charges,

maintenance charges and other charges, the petitioner shall

raise a bill on or before 10th  day of each month.   The first

such bill shall be raised on 10th March, 2020 and the amount

shall be paid by respondent no.1 latest by 20th March, 2020.

Even in case of any dispute, it shall deposit a sum of

Rs.3,50,000/­ every month without prejudice to the rights of

the parties.   The dispute with regard to the remaining

amount can be decided in accordance with law.  

V. The respondent no.1 through its Chief Executive

(Authorised Signatory) shall file an affidavit undertaking to

comply with the aforesaid direction within 2 weeks from

today.

VI. If any of these conditions are violated, the petitioner shall

be entitled to disconnect the electricity.  

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13. The petition is disposed of in the aforesaid terms.  Pending

application(s), if any, stand(s) disposed of.

...................................J. (Deepak Gupta)

..................................J. (Aniruddha Bose)

New Delhi February 7, 2020

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