INFINITY INFOTECH PARKS LIMITED versus SHIVA JUTE MILLS PRIVATE LIMITED THROUGH CHIEF EXECUTIVE (AUTHORISED SIGNATORY) & ANR. on 7 February 2020

1. This petition is directed against the order passed by the HighCourt of Calcutta dated 31.07.2019 in C.O. No.541 of 2019 whereby itallowed the petition of the respondent no. 1 herein and directed theBpetitioner herein to restore the electricity of the property occupied bythe respondent no.1 herein.

2. The grievance of the petitioner is that the respondent no. 1 whois occupying the 16[th]floor of the building in question comprising about29,445 sq. ft., has not paid a single rupee on account of lease rent,Cmaintenance charges, electricity charges and other charges and, therefore,the order directing restoration of electricity without requiring the tenant-sub lessee to pay the requisite charges is totally without jurisdiction.

3. We are only referring to the facts which are necessary fordecision of this case and our discussion is restricted to passing an equitableDorder. The facts, shorn of unnecessary details, are that the petitioner-Infinity Infotech Parks Limited is a lessee in the building known asINFINITY BENCHMARK, Bidhannagar, in the District of North24-Parganas, Kolkata. The 16[th] floor of the said building was dividedinto 3 offices. The entire 16[th] floor along with 5 car parking spaces wassub-leased by the petitioner in favour of the respondent no. 2- M/s.PearlEStudios Pvt. Ltd., which in turn sub-leased the entire premises in favourof respondent no. 1 vide lease deed dated 01.02.2012 and the admittedcase of the parties is that from 01.02.2012, the respondent no. 1 is inoccupation of the property. The claim of the petitioner is that it is entitledto Rs.7,29,240/- on account of lease rentup to 02.12.2019.F

4. At the outset, we may note that certain disputes betweenpetitioner and respondent no. 2 are the subject matter of arbitrationproceedings and, therefore, we are not commenting on the merits of thesame and are confining ourselves to the admitted fact that respondentno. 1 is in possession of the entire premises from 01.02.2012. We mayGalso note that an objection was raised that the sub-lease in favour ofrespondent no. 1 is unregistered and insufficiently stamped and, therefore,should be impounded. We feel that this is a matter for the trial court todecide and we have looked into the lease deed only to strike out a balancebetween the parties and anything said in this order is without prejudiceto the rights of the parties with regard to the admissibility of the leaseH

INFINITY INFOTECH PARKS LTD. v. SHIVA JUTE MILLS PVT. LTD. THR.CHIEF EXECUTIVE (AUTHORISED SIGNATORY) [DEEPAK GUPTA, J.]

deed in evidence.We make it clear that we have passed this order at theinterim stage and any observations made herein are only for passing thisinterim order and shall not be taken into consideration while deciding themain proceedings which must be decided on the basis of the evidenceled before the trial court or the arbitral tribunal.

5. The petitioner claims Rs.7,29,240/- as lease rent from01.02.2012 to 02.12.2019 which amount is not seriously disputed by therespondent no. 1.

6. The petitioner has also claimed a sum of Rs.15 per sq. ft. permonth as maintenance charges inclusive of taxes for the 3 office areasmeasuring 29,445 sq. ft. Reference has been made to clause 5 and 7 ofthe lease deed, which are reproduced as under:

“V. To bear and pay proportionate share of all kinds of expensesfor all periodical repairs for common areas of the said building,Air conditioning, additions, alterations, treatment, polishing,maintaining, rebuilding and cleaning, painting, entrances, commonlandings corridors, staircases, sewers, drains pipes, electric linesand installation, insurance and other conveniences including annualmaintenance charges in respect thereof as may be incurred bythe Sub-Lessor, from time to time and such proportionate sharetogether with service tax shall be calculated and apportioned bythe Sub-Lessor conclusively and the same shall be binding on theSub-Lessee.

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VII. It is made clear that the said service and maintenance togetherwith air-conditioning charges as envisaged herein to be providedby the Sub-Lessor to the Sub-Lessee and such charges for thesame shall be based upon all kinds of actual proportionate costs,charges and expenses of whatsoever nature plus 20% (twentypercent) management fee to be levied thereon and service tax asmay be applicable shall be paid by the Sub-Lessee to the Sub-Lessor during the subsistence of this Sub-Lease and suchproportionate share together with service tax shall be calculatedand apportioned by the Sub-Lessor conclusively and the sameshall be binding on the Sub-Lessee, provided further it is made A

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Aclear that the Sub-Lessee shall pay aforesaid charges for commonservices and maintenance as enumerated in the Fifth Schedule asstated hereunder and air-conditioning charges to be provided inthe said sub-demised space at the fixed rate of Rs.15/- per Sq.ft.for a period of one year from the date of commencement hereofBand Sub-Lessor 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 periodof two months from the date of commencement and thereafterwith effect from 15[th] November, 2009 until the completion of oneyear the Sub-Lessee shall pay at the rate of Rs.15/- per Sq.ft. permonth as stated hereinabove.”

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7. The case of the petitioner is that the respondent no.1 has notpaid a single rupee as maintenance charges and as per the terms of thelease deed, Rs.15/- per sq. ft. was to be paid except for the months ofAugust and September, 2009 for which a rebate of Rs.7 per sq. ft. wasto be given, meaning thereby that for these two months only Rs. 8/- perDsq. ft. was to be charged. On the other hand, on behalf of the respondentno. 1 it is claimed that no air-conditioning is being provided to the premisesin its possession and, therefore, the rate of Rs.15/- per sq. ft. is notpayable. Relying upon clause 7 quoted hereinabove, it is contended thatthe amount of Rs.15/- per sq. ft. was payable only for the first year fromEcommencement of the sub-lease and, thereafter, it was to be paid onactual basis plus 20% as management fees to be levied thereupon andservice tax as may be applicable. It is submitted on behalf of therespondent no. 1 that the management never raised invoices on the basisof the actual expenses incurred by it and, therefore, this amount was notpaid.F

8. We have considered the rival contentions of the parties and wemake it clear that we are not deciding this plea on merits. However, wehave no doubt in our mind that the sub-lessee cannot claim that no amountis payable by it. It has not paid a single rupee to the petitioner despiteoccupying the premises for more than 7 years. We cannot appreciateGthis conduct of the sub-lessee. In a multi-storeyed building of this naturethere has to be provision for security guards, cleaning services, liftoperators, parking attendants, etc. When the parties had agreed thatRs.15/- per sq. ft. per month would be paid in the first year,we canpresume that the sub-lessee must have satisfied itself that these are theHapproximate expenses to be incurred by the petitioner for maintenance of the building. Since air-conditioning has admittedly not been providedby the petitioner, for the purpose of this order, we deem it fit and properto fix the maintenance charges at 50% of the regular rateby giving adiscount of 50% for not providing the air-conditioning, which comes toRs.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 roundedof to 2,20,000/- per month.

9. Coming to the second claim of electricity charges, the petitionerhas claimed minimum demand charges at Rs. 384 per KVA per monthplus electricity duty, transmission and distribution losses from theelectricity bills placed on record by both the sides. It is not disputed thatthe entire building has a sanctioned load of 1445 KVA. The sanctionedload in respect of the premises on the 16[th] floor works out to 266.43KVA. The contention of the respondent no.1 is that it has hardly usedthe premises and is only liable to pay the actual charges for the electricityconsumed by it. It is also contended that since the petitioner has notraised invoices or produced the bills of actual consumption of the 16[th]floor, the respondent no.1is not liable make such payment. We find thatthe respondent no.1 has placed on record bills of the year 2011 raised bythe petitioner in respect of the same premises to the account of PearlStudios Pvt. Ltd.-respondent no. 2 and these bills are for a sum ofRs.76,571/- + Rs.59,706/- + Rs.3,96,855/- i.e. total Rs.5,33,132/-,for aperiod of approximately one month.Electricity tariff has not come downand the contention of the respondentno.1 that it is only liable to payelectricity charges at the rate of Rs. 10,000/-, cannot be accepted. Thearea 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 of04.11.2019, the demand charges are Rs. 384 per KVA per month.Therefore, at present the minimum demand charges for 266.43 KVAworks out to Rs.1,02,309.12. In any event, the respondent no.1 cannotescape its liability has to pay the minimum demand charges. It iscontended that earlier demand charges were at a lower rate of Rs. 317per KVA but we are sure that there may have been some months wherethe respondent no.1 may have utilised more than the minimum demandand it is liable to pay minimum charges which for the purpose of thisorder are ascertained at Rs.1,00,000/- per month. In addition to theminimum demand charges, some fixed charges are payable to the WestBengal State Electricity Distribution Company Ltd. in addition to theenergy consumed charges. Keeping all these factors into consideration AB

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Awe feel that as an interim measure the respondent no.1shall pay at leastRs.1,10,000/- per month on this account.

10. It was also urged on behalf of the respondent no.1 that therewere some periods during which the electricity was disconnected and,therefore, it should not be asked to pay any charges for the said period.BWe are not in agreement with the said submission. The respondent no.1did not pay a single rupee either on account of lease rent, maintenancecharges, electricity charges or other charges and in such event, thepetitioner had no option but to disconnect the electricity. We are, therefore,of the view that the High Court clearly misdirected itself in directingrestoration of the electricity without ensuring payment of some amountCto the petitioner.

11. As far as the claim of the petitioner for other charges includingwater 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.DTherefore, the liability only on account of minimum electricity chargesof Rs.1,10,000/- per month from 01.02.2012 till 31.01.2020 works out toRs.1,05,60,000/-.

12. In view of the aforesaid discussion we set aside the order ofthe Calcutta High Court and direct as under:

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I. We are of the view that respondent no. 1 must pay the followingamounts for the restoration of electricity:-

i) Lease Rent of Rs.7,29,240 (for the period from 01.02.2012to 02.12.2019).

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ii) Maintenance charges of Rs.2,11,20,000 (@ Rs.2,20,000per month from 01.02.2012 to 31.01.2020).

iii) Electricity charges of Rs.1,05,60,000 (@ Rs.1,10,000 permonth 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 equalinstalments of Rs.74,69,746, Rs.74,69,747, and Rs.74,69,747 tobe paid on 15.03.2020, 15.04.2020 and 15.05.2020 respectively.

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INFINITY INFOTECH PARKS LTD. v. SHIVA JUTE MILLS PVT. LTD. THR.CHIEF EXECUTIVE (AUTHORISED SIGNATORY) [DEEPAK GUPTA, J. ]

III. In case the respondent no.1 pays the amount ofRs.1,00,00,000/- to the petitioner then within 3 days of this payment,the petitionershall restore the electricity.

IV. With respect to the lease rent, electricity charges, maintenancecharges and other charges, the petitioner shall raise a bill on orbefore 10[th] day of each month. The first such bill shall be raisedon 10[th] March, 2020 and the amount shall be paid by respondentno.1 latest by 20[th] March, 2020. Even in case of any dispute, itshall deposit a sum of Rs.3,50,000/- every month without prejudiceto the rights of the parties. The dispute with regard to the remainingamount can be decided in accordance with law.

V. The respondent no.1 through its Chief Executive (AuthorisedSignatory) shall file an affidavit undertaking to comply with theaforesaid direction within 2 weeks from today.

VI. If any of these conditions are violated, the petitioner shall beentitled to disconnect the electricity.

13. The petition is disposed of in the aforesaid terms. Pendingapplication(s), if any, stand(s) disposed of.

Kalpana K. Tripathy

Petition disposed of.

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