# INFINITY INFOTECH PARKS LIMITED v. SHIVA JUTE MILLS PRIVATE LIMITED THROUGH CHIEF EXECUTIVE (AUTHORISED SIGNATORY) & ANR

- **Citation:** [2020] 2 S.C.R. 625
- **Court:** Supreme Court of India
- **Decided:** 2020-02-07
- **Bench:** Deepak Gupta, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/infinity-infotech-parks-limited-v-shiva-jute-mills-private-limited-through-34354
- **Pages:** 7

## Headnote

Lease:
Sub-Lease - Non payment of lease rent, maintenance charges,
electricity charges and other charges, by sub-lessee - Disconnection
of electricity of the premises of sub-lessee by the lessee - High Court
directed restoration of electricity - Appeal to Supreme Court - Held:
The sub-lessee did not pay a single rupee on any account, hence
the lessee had no option but to disconnect the electricity - High
Court's order directing restoration of electricity without requiring
the sub-lessee to pay the requisite charges was without jurisdiction
- Sub-lessee directed to pay certain amount towards lease rent,
maintenance charges and electricity charges for resotration of
electricity - Petition disposed of.

## Text

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INFINITY INFOTECH PARKS LIMITED
v.
SHIVA JUTE MILLS PRIVATE LIMITED THROUGH CHIEF
EXECUTIVE (AUTHORISED SIGNATORY) & ANR.
(Special Leave Petition (Civil) No. 21341 of 2019)
FEBRUARY 07, 2020
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Lease:
Sub-Lease - Non payment of lease rent, maintenance charges,
electricity charges and other charges, by sub-lessee - Disconnection
of electricity of the premises of sub-lessee by the lessee - High Court
directed restoration of electricity - Appeal to Supreme Court - Held:
The sub-lessee did not pay a single rupee on any account, hence
the lessee had no option but to disconnect the electricity - High
Court's order directing restoration of electricity without requiring
the sub-lessee to pay the requisite charges was without jurisdiction
- Sub-lessee directed to pay certain amount towards lease rent,
maintenance charges and electricity charges for resotration of
electricity - Petition disposed of.
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 21341 of 2019.
From the Judgment and Order dated 31.07.2019 of the High Court
at Calcutta in C.O. No. 541 of 2019.
Sanjiv Sen, Sr. Adv., R.K. Khanna, Sayan Ray, Soumo Palit,
Ms. Madhu Moolchandani, Advs. for the Petitioner.
Ms. Meenakshi Arora, Sr. Adv., Kumarjit Banerjee, Gaurav Gupta,
Jaspal Singh, Gaurav Goel, Advs. for the Respondents.
[2020] 2 S.C.R. 625
625
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SUPREME COURT REPORTS
[2020] 2 S.C.R.
The Order of the Court was passed by
DEEPAK GUPTA, J.
1. 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 16thfloor of the building in question comprising about
29,445 sq. ft., has not paid a single rupee on 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 petitionerInfinity Infotech Parks Limited is a lessee in the building known as
INFINITY BENCHMARK, Bidhannagar, in the District of North
24-Parganas, Kolkata. The 16th floor of the said building was divided
into 3 offices. The entire 16th floor along with 5 car parking spaces was
sub-leased by the petitioner in favour of the respondent no. 2- M/s.Pearl
Studios Pvt. Ltd., which in turn sub-leased 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 rentup to 02.12.2019.
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 sub-lease 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
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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.
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 Sub-Lessor, from time to time and such proportionate share
together with service tax shall be calculated and apportioned by
the Sub-Lessor conclusively and the same shall be binding on the
Sub-Lessee.
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VII. It is made clear that the said service and maintenance together
with air-conditioning charges as envisaged herein to be provided
by the Sub-Lessor to the Sub-Lessee 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 Sub-Lessee to the SubLessor during the subsistence of this Sub-Lease and such
proportionate share together with service tax shall be calculated
and apportioned by the Sub-Lessor conclusively and the same
shall be binding on the Sub-Lessee, provided further it is made
INFINITY INFOTECH PARKS LTD. v. SHIVA JUTE MILLS PVT. LTD. THR.
CHIEF EXECUTIVE (AUTHORISED SIGNATORY) [DEEPAK GUPTA, J.]
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SUPREME COURT REPORTS
[2020] 2 S.C.R.
clear that the Sub-Lessee shall pay aforesaid charges for common
services and maintenance as enumerated in the Fifth Schedule as
stated hereunder and air-conditioning charges to be provided in
the 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 hereof
and 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 period
of two months from the date of commencement and thereafter
with effect from 15th November, 2009 until the completion of one
year the Sub-Lessee 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 air-conditioning 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 sub-lease and, thereafter, it was to be paid on
actual basis plus 20% as management fees to be levied thereupon and
service tax as may 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 sub-lessee 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 sub-lessee. In a multi-storeyed 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 sub-lessee must have satisfied itself that these are the
approximate expenses to be incurred by the petitioner for maintenance
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of the building. Since air-conditioning 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 rateby giving a
discount of 50% for not providing the air-conditioning, 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.1is 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
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 respondentno.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 airconditioning, 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
INFINITY INFOTECH PARKS LTD. v. SHIVA JUTE MILLS PVT. LTD. THR.
CHIEF EXECUTIVE (AUTHORISED SIGNATORY) [DEEPAK GUPTA, J.]
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SUPREME COURT REPORTS
[2020] 2 S.C.R.
we feel that as an interim measure the respondent no.1shall 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 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.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 petitionershall 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.
13. The petition is disposed of in the aforesaid terms. Pending
application(s), if any, stand(s) disposed of.
Kalpana K. Tripathy
Petition disposed of.
INFINITY INFOTECH PARKS LTD. v. SHIVA JUTE MILLS PVT. LTD. THR.
CHIEF EXECUTIVE (AUTHORISED SIGNATORY) [DEEPAK GUPTA, J. ]