Delhi District Court
Bhushan Bakshi Through Spa Sandeep … vs Nitin Yadav on 22 May, 2026
IN THE COURT OF SH. RAJ KUMAR TRIPATHI
DISTRICT JUDGE (COMMERCIAL COURTS)-05
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CS (COMM) No.920/2022
(Bhushan Bakshi v. Nitin Kumar)
CNR No. DLWT01-011212-2022
Bhushan Bakshi
S/o Sh. Ram Nath Bakshi
R/o H. No. 101, Third Floor,
Mukherji Park, New Delhi - 110 018.
...Plaintiff
Through: Mr. N.P. Joshi, Advocate
Versus
Sh. Nitin Yadav
S/o Sh. Anil Kumar,
R/o 47, VPO Jaffar Pur Kalan.
Jafarpur, Delhi - 110 073.
...Defendant
Through: Mr.Udyan Srivastava, Advocate
Date of filing suit : 23.11.2022
Arguments heard on : 22.04.2026
Date of Judgment : 22.05.2026
JUDGMENT
1.1 Plaintiff has filed the present suit seeking recovery of a sum of
Rs.32,57,000/- (Rupees Thirty Two Lakhs Fifty Seven Thousand only) along
with pendente lite and future interest @ 18% per annum, damages of
Rs.5,00,000/- and cost of the suit.
Brief facts of the case
2.1 Plaintiff Mr. Bhushan Bakshi filed the present suit through his
Raj
Kumar brother-in-law/General Power of Attorney Holder Mr.Sandeep Sharma. Plaintiff
Tripathi
Digitally
claims to be owner of commercial space/shop nos. TF-09, TF-10 and TF-07 (open
signed by Raj
terrace) situated on the third floor, in the food court of Eros Metro Mall, Plot
Kumar Tripathi
Date:
2026.05.22
14:14:18
+0530CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 1 of 29
No.8, Sector-14, Dwarka, New Delhi (hereinafter to be referred as “suit
property”).
2.2 As per plaintiff, in November, 2015, defendant approached him for
taking the suit property along with fixtures, furniture, refrigerators etc. on rent for
running a business of restaurant. Accordingly, a rent agreement dated 23.01.2017
(Annexure-A2) containing the terms mutually agreed was executed between the
parties, whereby the lease was granted by plaintiff to defendant for a period of
thirty six months w.e.f. 01.02.2016. Defendant started his business of restaurant
in the suit property in the name and style of ‘Shesha Sky’.
2.3 In terms of rent agreement, defendant agreed to pay monthly rent
@ Rs.50,000/- with subsequent increase @ 10% every year. Thus, defendant was
required to make payment of monthly rent @ Rs.50,000/- for the first year, @
Rs.55,000/-per month for the second year and @ Rs.60,500/- per month for the
third year. In addition to the rent, defendant also agreed to pay maintenance and
electricity charges for the entire lease period w.e.f. 01.12.2016.
2.4 As per the terms of the rent agreement, defendant paid a sum of
Rs.1,50,000/- towards security deposit and Rs.50,000/- as advance rent at the
inception of tenancy.
2.5 Defendant is reported to have paid only an amount of Rs.2,50,000/-
towards lease rentals and further an amount of Rs.5,00,000/- towards electricity
and maintenance charges to Mall Maintenance Authorities managed by M/s Ajay
Enterprises Pvt. Ltd.
2.6 Plaintiff submits that he regularly followed up the defendant and
requested him to clear the outstanding dues, and after great persuasion, defendant
issued the following four cheques drawn on HDFC Bank, Dwarka Sector-14
Branch, New Delhi, towards discharge of his part liability:-
S No. Cheque Nos. Amount (Rs.) Raj Kumar Tripathi 1. 000079 1,50,000/- Digitally signed by Raj Kumar Tripathi Date: 2026.05.22 14:14:24 +0530 CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 2 of 29 2. 000080 1,50,000/- 3. 000082 1,50,000/- 4. 000084 1,50,000/- 2.7 Plaintiff avers that on the assurance of defendant, he presented the
aforesaid cheques in his bank i.e. Axis Bank, Rajouri Garden Branch, New Delhi
but same were dishonoured on presentation. Plaintiff informed the defendant
about dishonour of cheques, who assured to clear the outstanding dues.
Thereafter, defendant again issued a cheque bearing no.000078. However, the
said cheque was also dishonoured on presentation with remark “stop payment”
vide return memo dated 09.02.2018.
2.8 Aggrieved by acts of defendant, plaintiff issued legal notices dated
16.02.2018, 02.04.2018, 18.04.2018 and 05.06.2018 (Annexure-A7-colly.),
calling upon the defendant to make payment of the dishonoured cheques within
15 days from receipt of legal notices but no payment was made by him. In
response to the legal notice dated 16.02.2018, defendant sent evasive and vague
reply dated 28.02.2018 (Annexure-A8).
2.9 As no payment of dishonoured cheques was made by defendant,
plaintiff filed criminal complaints u/s 138 of The Negotiable Instruments Act,
1881 (in short ‘NI Act‘) against defendant, which are pending adjudication before
the Court of competent jurisdiction.
2.10 Plaintiff avers that after expiry of tenancy period, defendant
handed over possession of the suit property on 29.11.2019 in a damaged and
depleted condition, intimation whereof was given to him vide e-mail dated
29.11.2019 (Annexure-A9). He alleges that the fixtures and furniture were found
extensively damaged, causing loss to the tune of Rs.4 to 5 lakhs. It is submitted
that since defendant has occupied the tenanted premises for the entire tenancy
Raj
Kumar period i.e. upto 29.11.2019, he is liable to make payment of maintenance charges
Tripathi
Digitally signed
by Raj Kumar
as per statement of account provided by maintenance company i.e. M/s Ajay
Tripathi
Date: 2026.05.22
14:14:30 +0530CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 3 of 29
Enterprises Pvt. Ltd. The defendant is further liable to pay the entire outstanding
amount as per the agreed terms of the tenancy agreement which are as under:-
S.No. Particulars Amount (Rs.)
1. Towards monthly rentals till November 2019 19,86,000/-
i.e. 24 months
12 x 50,000/- = 6,00,000/-
12 x 55,000/- = 6,60,000/-
12x 60,500/- =7,26,000/-
2. Maintenance charges (w.e.f. 01.12.2016) 15,83,000/-
3. Electricity charges (w.e.f. 01.12.2016) 4,38,000/-
Total amount payable by defendant 40,07,000/-
Less amount already paid by defendant 7,50,000/-
Total amount payable by defendant 32,57,000/-
2.11 Plaintiff submits that apart from the aforesaid amount defendant is
also liable to pay interest @ 18% per annum on account of delay in making timely
payment. Further, defendant is also liable to make payment of damage caused to
the premises, fixtures and furniture etc.
2.12 Plaintiff claims to have contacted the defendant on number of
occasions demanding the outstanding amount, who did not give any positive
response. Hence the present suit.
2.13 Prior to filing of the suit, plaintiff filed an application for Pre-
Institution Mediation and Settlement before West District Legal Services
Authority, Tis Hazari Courts, Delhi on 22.08.2019 in compliance of section 12A
of The Commercial Courts Act, 2015. Pursuant to notice issued to defendant, he
appeared along with his advocate and filed written statement. However, theRaj
mediation was not successful between the parties. Accordingly, non-starter
Kumar
Tripathi report was issued on 26.09.2019.
Digitally signed
by Raj Kumar
Tripathi
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 4 of 29
Defence of the Defendant
3.1 The defendant, in his written statement, contends that the present
suit is liable to be dismissed on account of non-joinder of necessary and proper
parties, absence of cause of action, and insufficiency/deficient court fees. He
alleges that the present suit has been instituted only to harass him.
3.2 It is the case of defendant that plaintiff and his wife Smt. Neelam
Bakshi, through a broker, approached him for letting out the suit property for
running a lounge and bar under the name “Shesha Sky,” representing that no
common area maintenance or other charges, including electricity dues, were
pending towards the mall maintenance authority M/s Ajay Enterprises Pvt. Ltd.,
up to November 2016. Relying upon such assurances, defendant agreed to take
the suit property on rent @ Rs.50,000/- per month with 10% annual increase
besides maintenance, water, and electricity charges for a period of 36 months. He
claims to have paid Rs.50,000/- as advance rent and Rs.1,50,000/- towards
security deposit. The tenancy commenced on 01.12.2016, though the rent
agreement was executed on 23.01.2017.
3.3 Defendant submits that soon after taking the suit property on rent,
M/s Ajay Enterprises Pvt. Ltd. began disrupting essential services, including
electricity, lifts, escalators, air conditioning, and security, on account of
outstanding dues of plaintiff. He raised his concerns regarding the same with
plaintiff, his wife and also with M/s Ajay Enterprises Pvt. Ltd., who informed
about the outstanding dues of plaintiff. Defendant communicated the same to
plaintiff, who directed him to make entire payment of rent and other charges
directly to M/s Ajay Enterprises Pvt. Ltd. to offset his own liabilities. Thereafter,
defendant claims to have made the payments to M/s Ajay Enterprises on the
asking of plaintiff and his wife.
Raj 3.4 As per defendant, on account of outstanding dues, the suit property
Kumar
Tripathi was suffering from frequent power cuts, security issues and the common area
Digitally signed
by Raj Kumar
Tripathi
services were also not being provided i.e. lifts, escalators were not working and
Date: 2026.05.22
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 5 of 29
washrooms were not being cleaned, therefore, he had to install his own AC units
to survive in the suit property. Thus, he claims to have incurred additional
expenses, including installation of air-conditioning units.
3.5 Defendant alleged that plaintiff had concealed his outstanding
maintenance dues, thereby committing fraud and misrepresentation. Due to
persistent service disruptions, including power cuts during events, he suffered
financial and reputational losses.
3.6 It is averred that despite repeated communications, the issues
remained unresolved. In December 2017, plaintiff allegedly asked the defendant
to make payments directly to him, assuring resolution of the issues, pursuant to
which he paid Rs.4,00,000/- and Rs.2,00,000/- in cash to plaintiff. However, the
issues still persisted. Finally, defendant decided to terminate the tenancy and
offered to hand over possession of suit property to plaintiff and his wife but they
persuaded him to continue on assurances that the dues would be cleared. They
further persuaded him to provide advance cheques of Rs.1,50,000/- each to
continue in the suit property to better realize the amount as they were going
abroad. However, the situation did not improve. As a result thereof, defendant,
in the first week of May 2018, expressed his intention to vacate the suit property
and offered the keys. However, plaintiff allegedly asked him to clear all
outstanding dues payable to Ajay Enterprises Pvt. Ltd., but he did not fulfill his
unlawful demand.
3.7 Defendant claims to have closed his business in mid-2018 due to
incurring of huge losses. He communicated the said fact to plaintiff. He also
called upon plaintiff to take back the possession of the suit property but he
intentionally avoided with the sole objective to harass him. On the other hand, as
per defendant, M/s Ajay Enterprises Pvt. Ltd. through its officials, did not permit
him to remove his goods from the premises due to pending dues, resulting in the
Raj
Kumar goods remaining at the site and subsequently being lost due to theft, causing
Tripathi
Digitally signed
by Raj Kumar
further losses to him.
Tripathi
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 6 of 29
3.8 Defendant further alleges that plaintiff, his wife and M/s Ajay
Enterprises Pvt. Ltd. colluded to cause wrongful loss to him and unlawful gain to
themselves. Plaintiff deliberately avoided taking possession until November
2019, only to subsequently initiate false and frivolous litigation against him.
Defendant denied to have paid an amount of Rs.5,00,000/- to Mall Maintenance
Authorities being managed by M/s Ajay Enterprises Pvt. Ltd. towards payment
of maintenance and electricity charges. Denying other averments and allegations
of the plaint, defendant prayed to dismiss the suit with heavy cost.
Replication
4.1 In replication, plaintiff denied the averments made by the
defendant and reiterated reliance upon the terms and conditions of the rent
agreement, particularly Clauses 6 (for payment of maintenance, water and
electricity charges) and 12 (one month prior notice, if vacating the land before
expiry of lease period). The plaintiff placed reliance on e-mail dated 14.04.2017
to contend that the defendant had been duly intimated regarding payment of due
charges in terms of the agreement. He further asserts that the possession was
provided after the expiry of lease period.
4.2 Plaintiff has admitted that defendant had not paid Rs.5,00,000/- to
M/s Ajay Enterprises Pvt. Ltd. As per plaintiff, he was in possession of original
cheques along with the return memos of five cheques issued by defendant and on
the said basis, he contended that the defendant is liable to pay Rs.5,00,000/- in
addition to the amount claimed in the suit.
Issues
5.1 From the pleadings of the parties, the following issues were framed
on 16.04.2025:-
Raj (i) Whether the present suit is bad for non-joinder of
Kumar
Tripathi necessary parties?OPD.
Digitally signed by
Raj Kumar
Tripathi
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 7 of 29
(ii) Whether the present suit has been filed without any cause
of action?OPD.
(iii) Whether the present suit is liable to be dismissed for
filing insufficient court fees?OPD.
(iv) Whether the plaintiff has misused and misrepresented the
defendant and played fraud upon the defendant due to which
the rent agreement dated 23.01.2017 remained void ab initio?
OPD.
(v) Whether the plaintiff is entitled for recovery of
Rs.32,57,000/- from the defendant?OPP.
(vi) Whether the plaintiff is entitled for damages of Rs.5.00
Lac from the defendant?OPP.
(vii) Whether the plaintiff is entitled for interest @ 18% p.a.?
OPP
(viii) Relief.
Evidence of parties
6.1 In support of his case, plaintiff examined his SPA Holder Mr.
Sandeep Sharma as PW1. Mr. Sharma filed his evidence by way of affidavit, Ex.
PW1/A, wherein he deposed about the facts as mentioned in the plaint. He relied
upon the following documents:-
S.No. Details of documents Exhibit Mark
1. GPA dated 10.09.2018 issued by plaintiff Ex. PW1/1
2. Copy of registered rent agreement Ex. PW1/2
3. Both the cheques and bank memo Ex. PW1/3, Ex. PW1/4,
Ex. PW1/5 respectively
4. Legal notice dt. 16.02.2018, its reply dt. Ex. PW1/6, Ex. PW1/7,
Raj 28.02.2018, and another legal notice dt. Ex. PW1/8 respectively
Kumar 02.04.2018
Tripathi 5. Certified copy of abovestated cheques – except Ex. PW1/9 (colly)
Digitally signed
cheque bearing no. 00079
by Raj Kumar
Tripathi
6. Cheque bearing no. 00079 Mark-A
Date:
2026.05.22
7. Certified copy of cheque returning memos Ex.PW1/10 (colly)
14:15:03 +0530
8. Certified copy of cheque and bank memos Ex.PW1/11 & Ex.PW1/12
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 8 of 29
respectively
9. Certified copy of legal notices dt. 18.04.2018 Ex.PW1/13 (colly)
and 05.06.2018
10. Copy of intimation of handing over of tenanted Ex.PW1/14
premises on 29.11.2019 sent by defendant
11. Copy of photographs of premises Ex.PW1/15 (colly)
12. Statement of Account Mark-B
13. Cheques issued by defendant with bank memos Ex.PW1/17A to E (colly)
(set of 5 cheques)
14. Corresponding bank memos for above cheques Ex.PW1/18A to E (colly)
15. Copy of emails sent by plaintiff in March and Ex.PW1/19 (colly)
April, 2017
16. Copy of email dated 14.04.2017 Ex.PW1/20
17. Certificate u/s 65B Indian Evidence Act Ex.PW1/21
7.1 On the other hand, to prove his defence, defendant entered into the
witness box and examined himself as DW1. He filed his evidence by way of
affidavit, Ex.DW1/1. He relied upon the following documents:-
S.No. Details of document Exhibit Mark
1. Copies of the bank statements Ex.DW1/A (colly)
2. Copy of receipt dated 06.02.2018 Mark-PW1/D1.
3. Copies of email sent by defendant and Ex.DW1/C (colly)
whatsapp chat
4. Copy of FIR dated 27.01.2019 Ex.DW1/D
5. Certificate u/s 63 of The BSA 2023 Ex.DW1/E
Findings and observations
8.1 I have heard and considered the rival submissions of both the
parties and perused the material on record.
Issue wise findings are as under:-
Issue No.(i)
Whether the present suit is bad for non-joinder of necessary parties?OPD.
Raj
Kumar 9.1 Onus to prove this issue lies on defendant.
Tripathi
9.2 In order to discharge the onus to prove the issue, defendant
Digitally
signed by Raj
Kumar Tripathi
Date:
2026.05.22
examined himself as DW1.
14:15:10
+0530CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 9 of 29
9.3 The defendant, in para no.2 of the preliminary objections,
contended that plaintiff has no locus standi to file the present suit against him and
same is bad for non-joinder of necessary and proper parties.
9.4 Neither in the written statement nor in his evidence by way of
affidavit, defendant has disclosed as to who are the necessary and proper parties
to the suit. He has also not disclosed as to how their absence would affect the
complete and effectual adjudication of matter in dispute between the parties.
Thus, this Court finds that defendant has taken a vague and bald objection
regarding non-joinder of parties.
9.5 As per Order I Rule 9 of The Code of Civil Procedure, 1908 (in
short ‘CPC‘), no suit shall be defeated by reason of mis-joinder or non-joinder of
parties, save and except in the case of non-joinder of a necessary party. In view
of the same, the burden was upon defendant to establish as to who was the
necessary party for proper adjudication of the case, which was not impleaded by
plaintiff in the suit. Accordingly, it is held that defendant has failed to discharge
the onus to prove the issue.
9.6 Learned counsel for defendant submitted that Ms. Neelam, who is
also signatory to Rent Agreement, Ex.PW1/2 has not been impleaded as a party
in the case. He further submitted that she has neither filed any suit nor initiated
any proceedings against defendant in respect of the rent agreement. Plaintiff has
also not filed any authorization in his favour by Ms. Neelam or in favour of GPA
Holder. Inviting attention of this Court to the cross-examination of PW1 dated
17.07.2025, counsel for defendant submitted that the suit filed by plaintiff is bad
for non-joinder of necessary party.
9.7 It is well settled that one of the co-owners can alone and in his own
right file a suit for ejectment of tenant and it is no defence open to tenant, to
Raj question the maintainability of the suit on the ground that other co-owners were
Kumar
Tripathi not joined as parties to the suit. When the property forming subject matter of
Digitally signed
by Raj Kumar
eviction proceedings is owned by several owners, every co-owner owns every
Tripathi
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 10 of 29
part and every bit of the joint property along with others and it cannot be said that
he is only a part owner or a fractional owner of the property so long as the property
has not be partitioned. He can alone maintain a suit for eviction of tenant without
joining the other co-owners, if such other co-owners do not object (Reliance in
placed upon Sri Ram Pasricha v. Jagannath & Ors. MANU/SC/0473/1996; Kanta
Goel v. B.P. Pathan & Ors. MANU/SC/0348/1977 and Pal Singh v. Sunder Singh
(Dead) by LRs and Others MANU/SC/0404/1989).
9.8 In the present case, the registered Rent Agreement dated
23.01.2017, Ex.PW1/2 was executed between Mrs.Neelam Bakshi and
Mr.Bhushan Bakshi as owners and Mr. Nitin Yadav (defendant) as tenant of the
suit property. Admittedly, the instant suit for seeking recovery of arrears of rent
along with pendente lite and future interest and damages has been filed by
Mr.Bhushan Bakshi, one of the owners of the suit property against defendant.
Thus, applying the principles of law laid down in the cases given in para no.9.7
of the judgment, the suit filed by Mr. Bhushan Bakshi is very much maintainable
against defendant.
9.9 In view of above, it is held that the suit filed by plaintiff is not bad
for non-joinder of necessary and proper parties. The issue no.(i) is decided
accordingly in favour of plaintiff and against the defendant.
Issue no.(ii)
Whether the present suit has been filed without any cause of action?OPD.
10.1 Onus to prove this issue lies on defendant.
10.2 Learned counsel for defendant submitted that plaintiff has no cause
of action against defendant. The entire plaint does not disclose any cause of
action against defendant. Hence, the plaint is without cause of action and same
Raj is liable to be rejected under Order VII Rule 11 CPC.
Kumar
Tripathi 10.3 Per contra, learned counsel for plaintiff submitted that the averments
Digitally signed
made in the plaint and the documents filed along with it does disclose right to sue
by Raj Kumar
Tripathi
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 11 of 29
in favour of plaintiff and against the defendant. He prayed to reject the objections
of defendant accordingly.
10.4 Having considered the submissions advanced by learned counsel
for parties and on meaningful reading of the plaint, this Court is of the view that
the plaint does disclose a clearcut cause of action in favour of plaintiff for seeking
recovery of dues in respect of suit property against the defendant.
10.5 In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express (2006) 3 SCC
100, Hon’ble Court dealt with a similar issue. The relevant para i.e. para no.12
is extracted hereinbelow for ready reference:-
“12. From the aforesaid, it is apparent that the plaint cannot be
rejected on the basis of the allegations made by the defendant in
his written statement or in an application for rejection of the
plaint. The court has to read the entire plaint as a whole to find
out whether it discloses a cause of action and if it does, then the
plaint cannot be rejected by the court exercising the powers under
Order 7 Rule 11 of the Code. Essentially, whether the plaint
discloses a cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the plaint in its
entirety taking those averments to be correct. A cause of action is
a bundle of facts which are required to be proved for obtaining
relief and for the said purpose, the material facts are required to
be stated but not the evidence except in certain cases where the
pleadings relied on are in regard to misrepresentation, fraud,
willful default, undue influence or of the same nature. So long
as the plaint discloses some cause of action which requires
determination by the court, the mere fact that in the opinion of the
Judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint.”
10.6 In view of settled legal position and as the pleadings on record i.e.
averments made in the plaint disclose a bundle of facts giving rise to right to sue
for seeking recovery of dues by plaintiff against the defendant, this Court is of
the considered view that the plaint does disclose a cause of action for seeking the
relief for recovery of money against the defendant. Accordingly, the issue no.(ii)
Raj
is decided against defendant and in plaintiff’s favour.
Kumar
Tripathi
Digitally signed
by Raj Kumar
Tripathi
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2026.05.22
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 12 of 29
Issue no.(iii)
Whether the present suit is liable to be dismissed for filing insufficient court fees?
OPD.
11.1 Onus to prove this issue lies on defendant.
11.2 In the written statement, defendant contended that the present suit
is liable to be dismissed on account of deficient/insufficient Court fees paid by
plaintiff on the relief claimed.
11.3 Defendant has not disclosed as to on which relief, insufficient
Court fees has been paid by plaintiff and if so, to what amount.
11.4 In para no.25 of the plaint, plaintiff has averred as under:-
“The plaintiff has claimed an amount of money of Rs.32,57,000/-
along with interest @ 18% p.a. thereupon and appropriate
advalorem court fees has been affixed. Further the plaintiff has
also claimed the damages to be ascertained & assessed by this
court and for the same plaintiff undertakes to make the payment
of additional court fees as and when the same is directed to be
paid by this Hon’ble Court.”
11.5 PW1 in his cross-examination admitted that no Court fees has been
paid by plaintiff in respect of the relief of damages of Rs.5,00,000/- in the plaint.
He stated that plaintiff has given an undertaking to make good the additional
Court fees as and when directed by the Hon’ble Court.
11.6 In view of aforesaid undertaking given by plaintiff to makeup
deficiency of Court fees, if any, the suit filed by plaintiff cannot be dismissed.
Issue no.(iii) is disposed off accordingly.
Issue no.(iv)
Whether the plaintiff has misused and misrepresented the defendant and played
fraud upon the defendant due to which the rent agreement dated 23.01.2017
remained void ab initio?OPD.
Raj 12.1 In the written statement, defendant stated that the rent agreement
Kumar
Tripathi
dated 23.01.2017, Ex.PW1/2 suffers from fraud/misrepresentation as plaintiff and
Digitally signed
by Raj Kumar
Tripathi
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2026.05.22
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 13 of 29
his wife represented that the suit property was not having any dues on account of
common area maintenance charges and/or any other charges (inclusive of
electricity charges etc.) payable to Mall Maintenance Management Authority i.e.
M/s Ajay Enterprises Pvt. Ltd. till the end of November, 2016. However, after
taking the premises on rent, he came to know that the dues prior to letting out the
premises to him were not cleared by plaintiff. Thus, the rent agreement is void ab
initio. He further contended that due to non-payment of outstanding dues by
plaintiff and his wife, the smooth enjoyment of the common area facilities and
electricity was disrupted by M/s Ajay Enterprises Pvt. Ltd. The Mall
Maintenance Management Authority refused to entertain any of his request
without a mail from plaintiff and/or his wife. The plaintiff being informed of the
said situation, started giving excuse to hide his own
neglect/ignorance/misrepresentation and in the end, instructed him to make entire
payment of rent and other charges directly to M/s Ajay Enterprises Pvt. Ltd.
12.2 Plaintiff has denied the aforesaid allegations of defendant as false
and incorrect. In the replication, plaintiff asserted that he used to make payments
of all the charges in advance to the Mall Maintenance Authorities. Placing
reliance upon e-mail (Ex.PW1/19-colly.) sent by him in March and April, 2017,
plaintiff contends that the plea raised by defendant is without any merit. He
submitted that as per clause-6 of the Rent Agreement, it was the defendant’s
responsibility to make payments to the Mall Authorities and solely due to his
failure to pay the charges, time and again he had to face consequences.
12.3 Plaintiff further contended that defendant started using the tenanted
premises since 01.12.2016. The first e-mail message was sent by him on
09.01.2018 at 6:07 PM mentioning therein his complaints with respect to
maintenance of washrooms and escalators, in addition to seeking permission from
Raj the Mall Authorities for hanging board advertisement of restaurant in front and
Kumar
Tripathi back side of mall. Plaintiff states that defendant himself failed to make payment
Digitally signed
by Raj Kumar
Tripathi
of the maintenance charges, therefore, in order to take excuse of further non-
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CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 14 of 29
payment of the same, the mail was sent by him to justify non-payment of
maintenance charges. As per plaintiff, all the cheques issued by defendant qua the
year 2017 to the Mall Authorities amounting to Rs.5,00,000/- were dishonoured
and later on the said dues were cleared by him.
12.4 I have considered the rival submissions of both the parties, gone
through the testimony of witnesses and the documents relied upon by them.
12.5 Rent agreement, Ex.PW1/2 is not in dispute between the parties.
The suit property was let out to defendant in terms of Rent Agreement, Ex.PW1/2
w.e.f. 01.12.2016. The terms and conditions of Rent Agreement, Ex.PW1/2 were
signed by defendant after reading and understanding the same. He acknowledged
his liability to make payment of rent besides maintenance, electricity charges etc.
Pursuant to execution of Rent Agreement, defendant took the suit property on
rent. In terms of said agreement, he paid an amount of Rs.1,50,000/- to plaintiff
towards security deposit and also paid advance rent of one month. Thus, the rent
agreement dated 23.01.2017 cannot be said to be void ab initio.
12.6 Plaintiff claims to have cleared all the dues of Mall Management
Authority prior to letting the suit property to defendant. Ex.PW1/19 (colly.) is
the e-mail dated 10.04.2017 sent by plaintiff to the Mall Management. In the said
mail, plaintiff stated that he had paid almost Rs.10 Lakhs within last few months
while his maintenance is not more than Rs.5 Lakhs in one year. He asked the
Mall Management to send his statement of account for two years i.e. 2013 and
2014. As per plaintiff, he got possession of the shops in July, 2012 and paid one
year advance maintenance. This mail shows the bonafides on the part of plaintiff
that he had paid and was willing to pay the balance maintenance charges, if any
and, therefore, he asked the Mall Authorities to provide statement of account of
the suit property to him. Further, in the trailing mail, plaintiff asked the Mall
Management to provide him statement of account from 01.04.2013 to 31.03.2015.
Raj
Kumar Moreover, it was plaintiff’s responsibility to clear the dues of Mall Management
Tripathi
Digitally signed
Authorities prior to the date when defendant took the suit property on rent.
by Raj Kumar
Tripathi
Date: 2026.05.22
14:15:45 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 15 of 29
Further, if defendant has paid any amount of maintenance on plaintiff’s behalf,
he can adjust the same from the rent amount payable to plaintiff.
12.7 In view of foregoing reasons and discussions, this Court is of the
view that defendant has failed to prove that plaintiff played fraud upon him. The
alleged misrepresentation and fraud as claimed by defendant has not been proved
on record by defendant. Thus, defendant failed to discharge the onus to prove the
issue. Accordingly, issue no.(iv) is decided in plaintiff’s favour and against the
defendant.
Issue no.(v)
Whether the plaintiff is entitled for recovery of Rs.32,57,000/- from the
defendant? OPP.
13.1 Onus to prove this issue lies on plaintiff.
13.2 In order to prove the issue, plaintiff examined his Power of
Attorney Holder Mr.Sandeep Sharma as PW1. Mr. Sharma has proved the GPA
dated 10.09.2018 (Ex.PW1/1) executed by plaintiff in his favour.
13.3 PW1 Mr. Sandeep Sharma filed his evidence by way of affidavit,
wherein, he has deposed and corroborated the plaintiff’s case as pleaded in the
plaint. He relied upon and proved the documents mentioned in para no.6.1 of the
judgment. Admittedly, defendant was inducted as a tenant in the suit property
vide registered rent agreement, Ex.PW1/2 for a period of 36 months commencing
from 01.12.2016. The initial rent at the time when the suit property was taken by
defendant was Rs.50,000/- per month which was to increase @ 10% after every
year. Thus, the rent for second year was Rs.55,000/- per month and for the third
year, Rs.60,500/- per month.
13.4 In terms of rent agreement, defendant paid Rs.1,50,000/- towards
Raj security deposit to plaintiff. He also paid Rs.50,000/- as advance rent. Plaintiff
Kumar
Tripathi alleges that defendant was highly irregular in clearing the monthly lease rentals.
Digitally signed
by Raj Kumar
Tripathi
Date: 2026.05.22
14:15:51 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 16 of 29
He used to avoid making payments on one pretext or the other since his induction
as a tenant i.e. 01.12.2016.
13.5 As per PW1, defendant gave cheques bearing no.000078 and
000085 of Rs.1,50,000/- each towards clearing part payment of his outstanding
liability. However, the said cheques were dishonoured on presentation vide bank
return memo dated 09.02.2018. He proved the cheques along with bank memo
as Ex.PW1/3 to Ex.PW1/5 respectively. Thereafter, plaintiff sent legal notice u/s
138 of The NI Act dated 16.02.2018 calling upon defendant to make payment of
dishonoured cheque amount. Defendant replied to the legal notice on 28.02.2018.
Plaintiff also issued another legal notice dated 02.04.2018. However, no
complaint u/s 138 NI Act was filed by him against defendant as he assured to
clear his outstanding liability. PW1 has proved the legal notice dated 16.12.2018,
its reply dated 28.02.2018 and another legal notice dated 02.04.2018 as Ex.PW1/6
to Ex.PW1/8 respectively.
13.6 PW1 further deposed that defendant, after great persuasion, in
order to clear the part payment of his outstanding liability, subsequently issued
the four cheques bearing nos. 000079, 000080, 000082 and 000084 for an amount
of Rs.1,50,000/- each drawn on HDFC Bank, Sector-14, Dwarka Branch, New
Delhi-75. He assured that the cheques shall be duly honoured upon their
presentation. Certified copy of cheques have been proved as Ex.PW1/9 (colly.).
13.7 Plaintiff presented the cheques bearing nos.000079, 000080 and
000084 with his bank, however, they were dishonoured vide cheque returning
memos dated 22.03.2018 and 11.04.2018, Ex.PW1/10 (colly.). Thereafter,
plaintiff contacted the defendant to ask reasons for dishonour of cheques. The
defendant assured to clear the entire outstanding amount and requested for grant
of some more time. He asked plaintiff to deposit another cheque. On the
assurance of defendant, plaintiff presented cheque bearing no.000082, however,
Raj
Kumar the same was also dishonoured vide cheque returning memo dated 08.05.2018.
Tripathi
Digitally signed
by Raj Kumar
Tripathi
Date: 2026.05.22
14:15:57 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 17 of 29
PW1 has proved certified copy of cheque and bank memo as Ex.PW1/11 and
Ex.PW1/12 respectively.
13.8 Plaintiff issued legal notices dated 18.04.2018 and 05.06.2018 to
defendant calling upon him to make payment of dishonoured cheques within 15
days of the said notices but no payment was made by him. Whereafter, plaintiff
filed criminal case u/s 138 of NI Act against defendant. PW1 has proved certified
copy of legal notices dated 18.04.2018 and 05.06.2018 as Ex.PW1/13 (colly.).
13.9 PW1 has further deposed that despite having agreed term of earlier
vacation of tenanted premises as per clause 12 of the rent agreement, defendant
handed back the possession of the tenanted premises on 29.11.2019 i.e. after
expiry of complete tenancy period and that too in depleted condition. He also
sent an e-mail dated 29.11.2019 to plaintiff regarding vacation of the tenanted
premises. The copy of intimation of handing over of tenanted premises on
29.11.2019 sent by defendant has been proved as Ex.PW1/14.
13.10 In his cross-examination, PW1 stated that plaintiff has placed on
record the ledger statement of Mall Authorities qua the suit property, which is
Mark-B from page no.62 to 84 of plaintiff’s documents. He stated that the rent
as well as the maintenance amount of Rs.50,000/- became due each month after
the first of every calender month. He reasserted that defendant had paid only an
amount of Rs.2,50,000/- under the rent agreement during the entire tenancy
period. The said amount included Rs.1,50,000/- towards security and Rs.50,000/-
towards one month advance rent. As per the witness, defendant paid only one
month rent more during the entire tenancy period. He denied the suggestion that
defendant has paid an amount of Rs.6,00,000/- in cash to plaintiff in the month
of December, 2017. He admitted that an amount of Rs.2,00,000/- was paid by
defendant to wife of plaintiff on 06.02.2018 vide receipt Ex.PW1/D1. He further
denied the suggestion that defendant had paid an amount of Rs.2,50,000/- at the
Raj
Kumar time of rent agreement, further amount of Rs.8,00,000/- in cash and Rs.5,19,925/-
Tripathi Digitally signed by Raj Kumar to the Mall Management Authority. Tripathi Date: 2026.05.22 14:16:03 +0530 CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 18 of 29 13.11 Thus, from the deposition of PW1, it stands proved on record that
defendant paid only an amount of Rs.2,50,000/- i.e. Rs.1,50,000/- towards
security deposit, Rs.50,000/- towards one month’s advance rent and Rs.50,000/-
towards maintenance to plaintiff. The defendant has further paid an amount of
Rs.2,00,000/- to wife of plaintiff Mrs. Neelam Bakshi vide receipt Ex.PW1/D1.
13.12 DW1 Mr. Nitin Yadav, during his cross-examination was shown
clause 23 of rent agreement, Ex.PW1/2. He admitted that it was agreed that no
cash transaction as per the agreement will take place between the parties and all
the payments will be made through cheques, drafts or other banking transactions.
He further admitted that there was no receipt of cash transaction other than the
amount of Rs.2,00,000/- paid in cash to the wife of plaintiff.
13.13 Defendant has further admitted that as per Ex.PW1/2, he was to
make a payment of Rs.50,000/- towards maintenance on or before 1st day of each
month. Further, balance payment was to be made on getting the actual
maintenance charge bill, if any and he was to pay all the said charges as per the
invoices raised by Mall Authorities.
13.14 In the cross-examination, defendant has admitted to have issued
five cheques of Rs.1,00,000/- each, Ex.PW1/17 (colly.) to the Mall Maintenance
Authorities i.e. M/s Ajay Enterprises Pvt. Ltd. He further admitted that all the
said cheques were dishonoured upon presentation.
13.15 As per defendant, he handed over the possession of the tenanted
premises to plaintiff on 29.11.2019 i.e. before the expiry of the tenancy period.
He also sent an e-mail dated 29.11.2019 to plaintiff after the premises had been
seen by wife of plaintiff and Mr. Sandeep Sharma. Thus, from the deposition of
defendant, it is clear that the suit property remained in possession of defendant
from 01.12.2016 to 29.11.2019 i.e. 36 months.
Raj 13.16 Plaintiff has claimed an amount of Rs.19,86,000/- towards arrears
Kumar
Tripathi of rent. The bifurcation of amount as claimed, in terms of rent agreement,
Digitally signed
by Raj Kumar Ex.PW1/2 is as under:-
Tripathi
Date: 2026.05.22
14:16:09 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 19 of 29
Particulars
i) Towards monthly rentals till November 2019
12 X Rs. 50,000/- = Rs.6,00,000/-
12 X Rs.55,000/- = Rs.6,60,000/-
12 X Rs.60,500/- = Rs.7,26,000/-
_____________
Rs.19,86,000/-
______________
13.17 Defendant has admittedly paid an amount of Rs.4,00,000/- out of
Rs.19,86,000/- to plaintiff. The details of payment made by defendant are as
under:-
i) Towards security deposit Rs.1,50,000/-
ii) Advance rent of one month Rs.50,000/-
iii) Towards part payment of dishonoured cheques Rs.2,00,000/-
13.18 In view of above, after deducting Rs.4,00,000/- from the total
outstanding amount of Rs.19,86,000/-, an amount of Rs.15,86,000/- remains due
and payable by defendant to plaintiff towards arrears of rent. Defendant has
failed to prove that he has paid the entire balance amount of rent to plaintiff by
leading any reliable and cogent evidence on record. He claims to have paid an
amount of Rs.8,00,000/- in cash to plaintiff. No rent receipt or acknowledgment
of the said amount given either by plaintiff or his wife has been placed on record
by defendant. Thus, he could not prove the cash payment allegedly made by him
to plaintiff. Accordingly, plaintiff is held entitled to recover a sum of
Rs.15,86,000/- from defendant towards arrears of rent.
13.19 The judgments relied upon by counsel for defendant i.e. Surendra
Nath Bibra v. Stephen Court Ltd. AIR 1966 SC 1361; Raichurmatham Prabhakar
and Ors. v. Rawatmal Dugar AIR 2004 SC 3625; Budge Budge Co. Ltd. v. Jute
Raj Corporation of India Ltd. 2001 (2) RCR (Rent) 485 and Mangalore Minerals Pvt.
Kumar
Tripathi Ltd. v. The State of Andhra Pradesh & Ors. 2022 (5) ALD 592 regarding doctrine
Digitally signed
by Raj Kumar
Tripathi of suspension of rent are not found to be applicable in the facts and circumstances
Date:
2026.05.22
14:16:14 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 20 of 29
of the case as the delivery of whole suit property was given to defendant, who
used the same and it remained in his continuous possession till he handed over
the possession of suit property to plaintiff on 29.11.2019. As already observed,
the interruptions/disturbances, if any were caused due to acts of the defendant in
not making payment of maintenance and electricity charges to the Mall Authority
and not on account of plaintiff.
13.20 Plaintiff has further claimed an amount of Rs.15,83,000/- towards
maintenance charges and Rs.4,38,000/- towards electricity charges. Admittedly,
the suit premises remained in possession and occupation of defendant w.e.f.
01.12.2016 till 29.11.2019. Since, the premises remained in possession of
defendant during the said period, he is liable to pay the utility charges.
13.21 PW1 has relied upon the copy of statement of account provided to
plaintiff by the maintenance company of the Mall Authority, Mark-B. The
defendant put extensive questions pertaining to said documents during cross-
examination of PW1.
13.22 Defendant claims to have made payment of the following amounts
to M/s Ajay Enterprises Pvt. Ltd. from his bank accounts in SBI and DCB bank:-
S.No. Dated Bank Amount in Rs.
1. 12.01.2017 SBI 50,000/-
2. 25.01.2017 SBI 50,000/-
3. 25.01.2017 DCB 12,902/-
4. 14.03.2017 DCB 37,023/-
5. 15.03.2017 DCB 2,45,000/-
6. 18.04.2017 DCB 1,00,000/-
Raj Kumar 7. 07.05.2017 DCB 25,000/-
Tripathi
Digitally signed by
Total 5,19,925/-
Raj Kumar Tripathi
Date: 2026.05.22
14:16:20 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 21 of 29
13.23 The SPA of plaintiff as well as counsel for plaintiff, during the
course of final arguments, submitted that the aforesaid amount as claimed by
defendant may be adjusted from the total amount payable by him towards
maintenance and electricity charges. In view of the same, after deduction of
Rs.5,19,925/- out of total outstanding amount of Rs.20,21,000/- (Rs.15,83,000/-
towards maintenance charges +Rs.4,38,000/- towards electricity charges), an
amount of Rs.15,01,075/- remains and due and payable by defendant. Admittedly,
at the time of taking the premises on rent, defendant paid Rs.50,000/- as advance
for maintenance charges. Accordingly, after deduction of Rs.50,000/- from
Rs.15,01,075/-, the total amount which remains to be paid by defendant comes to
Rs.14,51,075/-. Thus, defendant is liable to pay an amount of Rs.14,51,075/-
towards maintenance and electricity charges during the tenancy period.
13.24 The first defence of defendant is that due to non-payment of
outstanding dues by plaintiff to M/s Ajay Enterprises Pvt. Ltd., the suit property
was suffering from frequent power cuts, security issues and common area
services were also not been provided i.e. the lifts, escalators were not working
and the washrooms were also not being cleaned. The defendant further claims to
have installed his own AC units to survive in the suit property.
13.25 The defendant has failed to prove the aforesaid defence on record.
He has not filed the invoices for purchase of alleged units and also not furnished
any proof of installation charges of the same in the suit property. There is no
material on record to suggest that defendant had infact installed his own AC units
in the suit property as claimed by him.
13.26 Further, from e-mail dated 14.04.2017, Ex.PW1/20 sent by plaintiff
Raj to defendant, it is seen that due to non-payment of electricity bill, the Mall
Kumar
Tripathi Authorities disconnected the electricity. In the said mail, plaintiff reminded the
Digitally signed
by Raj Kumar defendant that his rent and maintenance payments were always delayed. He also
Tripathi
Date: 2026.05.22
14:16:27 +0530 pointed out that the Mall Authorities disconnected the electricity in the premises
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 22 of 29
on 10.04.2017 due to non-payment of maintenance charge. The electricity was
restored after an hour when defendant made payment of Rs.1,00,000/- by cheque.
Plaintiff also informed the defendant that the said cheque was returned unpaid.
He asked the defendant to make a draft and submit the same as soon as possible
to keep his services running. Thus, no merit is found in the defence of defendant
that due to non-clearance of outstanding dues by plaintiff, the suit property was
suffering.
13.27 The other defence of defendant is that plaintiff and his wife
avoided him despite having full knowledge of the fact that he had closed his
business in May, 2018 and thereby avoided the agreement due to their
misrepresentation and fraud. Defendant claims to have been running after them
for handing over of the keys but they only came forward to take the keys in month
of 2019, whereafter, he was allowed to remove his belongings which were lying
arrested in the premises in reference to initiate false and frivolous litigation
against him.
13.28 In order to prove the aforesaid defence, he has relied upon the
document, Ex.PW1/D2 i.e. whatsapp chat. I have perused the said chat. In the
whatsapp conversation dated 01.06.2018, defendant has only informed the
plaintiff about closure of his business on 13th of last month. There is nothing in
the whatsapp communication that defendant proposed to handover the keys of the
suit property to plaintiff. PW1 in his cross-examination has denied the suggestion
that the message sent by defendant on 01.06.2018 regarding closure of his
business amounted to a termination notice under the rent agreement. As per
defendant himself, he handed over the possession of the tenanted premises to
plaintiff on 29.11.2019 and also sent an e-mail of even date to plaintiff in this
regard. Thus, defendant has miserably failed to prove on record that any fraud or
Raj mis-representation was played by plaintiff.
Kumar
Tripathi
13.29 For ease of convenience, clause-12 of the rent agreement,
Digitally signed
by Raj Kumar
Tripathi Ex.PW1/2 is extracted hereinbelow:-
Date:
2026.05.22
14:16:37
+0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 23 of 29
“That if the TENANT want to vacate the said premises before the
expiry of tenancy period, then he shall serve one month’s prior notice
to the LANDLORD and similarly if the LANDLORD under
unacceptable, unpleasant terms and conditions or circumstances, wants
to evict the said TENANT from the said premises, then he shall also
serve one month’s prior notice to the TENANT.”
13.30 In the case in hand, admittedly, defendant has not given one
month’s prior notice to the landlord of the premises prior to vacating the same on
29.11.2019. Sending of whatsapp message regarding closure of business by
defendant does not amount to termination notice. Moreover, defendant in the
whatsapp communication also did not express his willingness to vacate the
premises before expiry of tenancy period. He did not offer the keys of the suit
property to plaintiff. Thus, plaintiff and his wife cannot be blamed for any sort
of fraud or misrepresentation as alleged by defendant.
13.31 In view of foregoing reasons and discussions, this Court is of the
view that plaintiff has succeeded to prove his entitlement for seeking recovery of
Rs.30,37,075/- (Rs.15,86,000/- towards arrears of rent + Rs.14,51,075/- towards
maintenance and electricity charges) from defendant. The issue no.(v) is decided
accordingly in favour of plaintiff and against the defendant.
Issue no.(vi)
Whether the plaintiff is entitled for damages of Rs.5.00 Lac from the
defendant?OPP.
14.1 Onus to prove this issue lies on plaintiff.
14.2 PW1 in his evidence by way of affidavit, Ex.PW1/A deposed that
the entire fixtures and furniture provided by plaintiff worth lakhs of rupees were
completely damaged by defendant prior to handing over of the tenanted premises.
Further, damage was also caused to the premises which runs up to the tune of
Raj
Kumar Rs.4 to 5 Lakhs. However, defendant has neither paid any amount towards
Tripathi
Digitally signed damage caused nor has paid the outstanding due amount. He relied upon the
by Raj Kumar
Tripathi
Date: 2026.05.22
14:16:42 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 24 of 29
photographs of the premises given on rent before and after handing over of
premises in question as Ex.PW1/15 (colly.)
14.3 It is useful to refer to clause 8 and 10 of the rent agreement,
Ex.PW1/2 for deciding the issue at hand. Same reads as under:-
“8. That all existing equipment, installations made by the LANDLORD
shall be the property of the LANDLORD and being so LANDLORD
will be entitled to take possession of the said products at the end of the
termination of the instant agreement. It will be the responsibility of the
TENANT to repair or replace the products and handover to
LANDLORD in good working condition at the time of termination of
the instant agreement. A separate list of all equipments will be signed
for records.
10. That the TENANT shall not damage the said property or any
portion thereof and he shall keep the said property quite neat and
clean in all respect.”
14.4 The relevant portion of cross-examination of PW1 is reproduced
hereinbelow for ready reference:-
“Witness is shown clause no.8 of the rent agreement. Is it correct
that there was no separate list of all or any equipment installation
made by the pltf. and his wife in the suit property existing at the
time of induction of deft. as tenant and signed by both the parties
was ever prepared, signed, has been filed by you in the suit?
A. I say that such a list was prepared and also signed by both the
parties, however, same has not been filed on record of the present
suit.
Can you bring the said list as per clause 8 of the rent agreement
bearing signature of both the parties?
A.No
It is incorrect to suggest that no such list was ever prepared much
less signed by both the parties and, therefore, has not been filed
and is not produceable before this court. It is incorrect to suggest
that all the equipments/installation in the suit property were made
at the expense of the deft. for his business. I do not remember
whether the payment of one month’s advance rent under clause
16 of the rent agreement Ex. PW1/2 was paid in cash or not. I
cannot tell from the records of this case whether one month’s
advance rent was paid in cash or not.
Q. Can you tell the damages that has been caused by the deft. to
Raj Kumar the suit property for which you have claimed damages in the suit?
Tripathi A. Witness has referred to photographs on page no.58 and says
that we had provided false ceiling, partitions, refrigerators,
Digitally signed by
Raj Kumar Tripathi kitchen appliances etc. which were damaged by the deft. Even
Date: 2026.05.22
14:16:47 +0530 the walls of the suit property was damaged which we got repaired
subsequently.
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 25 of 29
It is correct that pltf. has not placed on record any such bill of
repair work done by the pltf. in the suit property. It is correct that
neither the false ceiling nor the partition inside the suit
property, refrigerators or kitchen appliances are visible in the
photographs on page no. 58 Ex. PW1/15. I say that photographs
on page no. 59 to 61 are the photographs taken at the time of
handing over the possession of the suit property by the deft. to
the pltf. Ex. PW1/15. It is correct that the photographs from page
no. 58 to 61 does not bear any date or time. It is correct that the
said photographs also do not show any identification of the suit
property. (Vol.- one photograph at page no. 59 and one on page
no. 61 shows the logo of the deft.i.e. Shisha Sky Lounge and Bar.
Q: Is it correct that no certificate u/s 65B Indian Evidence Ac has
been filed by you in respect of the source of origin/original
device which took these photographs?
A.It is correct.
It is correct that no complaint or notice has ever been
served upon the deft. by the pltf. in respect of any damage as
alleged by the pltf. I do not remember that alterations/additions
in the suit property done by the deft. were with the consent of the
pltf. and his wife or not. It is incorrect to suggest that
additions/alterations in the suit property done by the deft. were
with the consent of the pltf. and his wife because of which no
complaint or issue ever raised by the pltf.”
14.5 From the above deposition of PW1, it is seen that plaintiff has not
filed any list of installations bearing signature of both the parties prepared at the
time of renting out the suit property to defendant. Plaintiff has also not placed on
record any bill of repair work allegedly done by him in the suit property. The
photographs, Ex.PW1/15 (colly.) relied upon by PW1 do not bear any date or
time. They also do not show any identification of the suit property. The false
celling or partition inside the suit property, refrigerators or kitchen appliances are
also not visible in the photographs. PW1 has further not filed any Certificate u/s
65B of The Indian Evidence Act, 1872 in respect of source of origin/original
device which took the said photographs. No expert assessment valuation report
regarding the alleged damage to the suit property has been filed by plaintiff.
Thus, plaintiff has miserably failed to prove the damage allegedly caused to the
Raj
Kumar suit property and the fixtures furniture therein, if any.
Tripathi
Digitally signed
by Raj Kumar
Tripathi
Date: 2026.05.22
14:16:54 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 26 of 29
14.6 In view of above, plaintiff has failed to discharge the onus to prove
issue no.(vi). Same is decided accordingly in defendant’s favour and against the
plaintiff.
Issue no.(vii)
Whether the plaintiff is entitled for interest @ 18% p.a.?OPP.
15.1 Onus to prove this issue lies on plaintiff.
15.2 Plaintiff has claimed pre-suit, pendente lite and future interest @
18% per annum on the outstanding amount.
15.3 PW1 in his cross-examination has admitted that there is no clause
under the rent agreement dated 23.01.2017, Ex.PW1/2 and/or any other document
entitling the plaintiff to charge interest @ 18% per annum from the defendant.
15.4 This Court has already held that defendant is liable to pay an
amount of Rs.30,37,075/- to plaintiff. Since, defendant withheld the legitimate
dues of plaintiff without any justification and did not make payment despite
requests and reminders, he is liable to pay interest on the outstanding amount.
15.5 The concept of awarding interest on delayed payment has been
explained by Hon’ble Supreme Court in the case of Authorized Officer,
Karnataka Bank v. M/s RMS Granites Pvt. Ltd. & Ors. in Civil Appeal
No.12294/2024, wherein, it was held as under:-
“It may be mentioned that there is misconception about interest.
Interest is not a penalty or punishment at all, but it is the normal
accretion on capital. For example if A had to pay B a certain
amount, say ten years ago, but he offers that amount to him today,
then he has pocketed the interest on the principal amount. Had A
paid that amount to B ten years ago, B would have invested that
amount somewhere and earned interest thereon, but instead of
that A has kept that amount with himself and earned interest on
it for this period. Hence equity demands that A should not only
pay back the principal amount but also the interest thereon to B.
[See: Alok Shanker Pandey v. Union of India: AIR 2007 SC
Raj Kumar 1198.]”
Tripathi
Digitally signed by
Raj Kumar Tripathi
Date: 2026.05.22
14:16:59 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 27 of 29
15.6 In accordance with section 3 of The Interest Act, 1978 and in the
absence of a written contract between the parties, for charging interest @ 18%
per annum, this Court is of the view that interest of justice shall be subserved, if
plaintiff is granted pre-suit interest @ 9% per annum from the date of issuance of
Certificate of Non-starter report dated 26.09.2019 till the date of filing of the suit.
15.7 It is well settled that in terms of section 4 of The Interest Act, 1978
and section 34 of The Code of Civil Procedure, 1908, grant of pendente lite and
future interest is the discretion of the Court.
15.8 In M/s Tomorrowland Ltd. v. Housing and Urban Development
Corporation Ltd. & Another SLP(C) No. 34338/2016 decided on 13.02.2025,
Hon’ble Supreme Court observed as under:-
“49. It is trite law that under Section 34 of the CPC, the award of
interest is a discretionary exercise steeped in equitable considerations.
The law in this regard has been succinctly discussed in the Constitution
Bench judgment of this Court in Central Bank of India v. Ravindra &
Ors.; (2002) 1 SCC 367, which states:
“Award of interest pendente lite or post-decree is discretionary with the
Court as it is essentially governed by Section 34 of the CPC de hors the
contract between the parties. In a given case if the Court finds that in
the principal sum adjudged on the date of the suit, the component of
interest is disproportionate with the component of the principal sum
actually advanced, the Court may exercise its discretion in awarding
interest pendente lite and post-decree interest at a lower rate or may
even decline to award such interest. The discretion shall be exercised
fairly, judiciously, and for not arbitrary or fanciful reasons.
[Emphasis supplied”
15.9 In the absence of any written contract between the parties for
charging interest @ 18% per annum as claimed by plaintiff, this Court is of the
considered opinion that it would be fair to award pendente lite and future interest
@ 9% per annum on the delayed payment from the date of filing of the suit till
Raj realization of the amount. Issue no.(vii) is decided accordingly in favour of
Kumar
Tripathi plaintiff and against the defendant.
Digitally signed
by Raj Kumar
Tripathi
Date:
2026.05.22
14:17:05 +0530
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 28 of 29
Relief
16.1 For the forgoing reasons and discussions and in view of findings
returned on issue no.(i) to (vii), the suit of plaintiff is decreed with cost.
Defendant is directed to pay an amount of Rs.30,37,075/- to plaintiff. He is
further directed to pay pre-suit (w.e.f. 26.09.2019), pendente lite and future
interest @ 9% per annum on the aforesaid outstanding amount till the date of
actual payment.
17.1 Decree Sheet be prepared accordingly.
18.1 File be consigned to Record Room.
Digitally
Announced in the Open Court Raj
signed by
Raj Kumar
Dated: 22.05.2026 Kumar
Tripathi
Date:
Tripathi 2026.05.22
14:17:10
+0530
(Raj Kumar Tripathi)
District Judge (Commercial Court)-05
West, Tis Hazari Courts, Delhi
CS (COMM) No.920/2022 (Bhushan Bakshi v. Nitin Kumar) Page 29 of 29
