M/S. Bhushan Steel Ltd. & Anr. vs M/S. Nehru Place Hotels Ltd.

                             Unreportable
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA (OS) No. 256 of 2007

%                                                Dictated on : July 21, 2008

M/s. Bhushan Steel Ltd. & Anr.                            . . . Appellants

                   through :                  Mr. A.S. Chandhiok, Sr. Advocate
                                              with Mr. Anil Airi and
                                              Mr. Ritesh Kumar, Advocates

              VERSUS

M/s. Nehru Place Hotels Ltd.                              . . . Respondent

                   through :                  Mr. Jayant Bhushan, Sr. Advocate
                                              with Ms. Malini Sud and
                                              Ms. Bimla Sharma, Advocates


CORAM :-
    THE HON‟BLE MR. JUSTICE A.K. SIKRI
    THE HON‟BLE MR. JUSTICE MANMOHAN SINGH

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.          (ORAL)

1. The issue involved in this appeal is in a narrow campus. The appellant had filed a suit on the Original Side of this Court questioning the maintenance charges demanded by the respondent herein. We may point out that the respondent M/s. Nehru Place Hotels developed an office complex known as „International Trade Tower‟. The appellants and the respondent entered into agreement dated 17.4.1993 vide which the appellant acquired certain rights in 12 apartments of the said tower. Apart from the consideration for RFA (OS) No. 256/2007 nsk Page 1 of 5 selling the rights in these apartments, certain maintenance charges were allegedly payable which the respondent demanded. The appellants questioned the right of the respondent to levy and collect those maintenance charges. The appellants had, thus, filed CS (OS) No. 1693/1994 on an earlier occasion in this Court in which compromise agreement dated 17.12.1997 was entered into between the parties, which was recorded and the suit was decreed in terms thereof. Thereafter, the appellants filed the suit in question, i.e. CS (OS) No. 211/2005 seeking a declaration that the respondent was not entitled to claim maintenance charges, except the maintenance charges which were being actually incurred along with reasonable service charges. That is an issue which has to be decided in the impugned suit. We are concerned with the orders passed in the interim application (IA No. 1241/2005) filed by the appellants under Order XXXIX Rule 1 & 2 of the CPC, in which ex-parte injunction was granted on 18.2.2005 restraining the respondent from interfering in the use and enjoyment of the common areas and facilities enjoyed by the appellants in Block-F of the said tower. It was also directed that the appellant "would reimburse the defendant, actual charges towards electricity, proportionate to their share in the property." When the suit came up for hearing on 27.4.2005, the parties agreed for consensual interim arrangement and following order was passed:-

"By consent of parties interim order dated 18.2.2005 is modified. Till the present order is vacated or modified, plaintiffs shall pay to the defendant maintenance charges @ Rs.29.03 per sq.ft. per month in respect of complete maintenance facilities to be provided by the defendant."

2. It is clear from the above that the appellants agreed to pay to the respondent maintenance charges @ Rs.29.03 per sq.ft. per month instead of complete maintenance facilities to be provided by the respondent. After the passing of this order, the respondent moved another application being IA No. 5031/2005 seeking a clarification of the aforesaid order stating that the appellants had not paid the amount of maintenance charges at the aforesaid rate of Rs.29.03 per sq.ft. It was also submitted that these maintenance charges did not include the charges for the electricity backup which the appellants desire to obtain from the respondent and were to be paid separately. Another clarification sought was with respect to car parking area charges claiming that the same was not included under the maintenance charges. This application is disposed of by the learned Single Judge clarifying that the appellants are to pay to the respondent the arrears of general maintenance @ Rs.29.03 per sq.ft. from 1.1.2003 to 30.4.2005 as well and that these maintenance charges are not only for future period but also for the arrears. It is also clarified that any such payment made would be subject to adjustment and the final decision in the case. The learned Single Judge has, however, not accepted the plea of the respondent that separate parking charges were payable. Insofar as payment of back up electricity is concerned, the appellants had conceded that the same would be paid subject to the final outcome of the suit. RFA (OS) No. 256/2007 nsk Page 3 of 5

3. In this appeal, thus, the appellants are concerned only with the clarification given with respect to payment of general maintenance charges @ Rs.29.03 per sq.ft. Contention is that no such consent was given that these charges are payable with effect from 1.1.2003 and the learned Single Judge has added words into the consent order dated 27.4.2005 by giving such a clarification.

4. We do not agree with this contention of learned counsel for the appellants. Order dated 27.4.2005 records, in no uncertain terms, that the appellants shall pay to the respondent maintenance charges @ Rs.29.03 per sq.ft. These were payable not only for future but also for the arrears thereof. Reason is simple and can be found in the judgment dated 9.5.2005 passed by a Company Judge in C.P. No. 41/2004. That was a petition filed by the respondent against the appellants for winding up of the appellants‟ company on the ground that the appellants owed debts to the respondent arising out of the consent decree passed in CS (OS) No. 1639/1994. Though the said petition was dismissed on the ground that the amount claimed under the consent decree was distributable and, therefore, winding up orders were not required, the petition was disposed of with the following specific directions:-

"(i) The company shall pay maintenance charges at the rate of Rs.29.03 per sq.ft. which were the charges agreed to in July, 1997. I am conscious of the fact that the company even thereafter paid increased maintenance charges after adding 8% / 9% every year till 2003, still I am restricting the payments, for time being, at Rs.29.03 per sq.ft as the company claims that it has already paid huge amount in excess and the accounts are to be rendered by the petitioner.

(ii) The petitioner, if on rendition of accounts, is able to show that amount payable is more than Rs.29.03 per sq.ft. it would be entitled to make claim of further maintenance charges for the period in question.

(iii) Both the parties would be at liberty to seek the civil remedies, namely, the petitioner for claiming the maintenance charges at enhanced rate, if justified on actual basis and the company for claiming rendition of accounts."

Direction No.1 is for payment of maintenance charges @ Rs.29.03 per sq.ft., which were the charges agreed to in July 1997. In view thereof, when way back in July 1997 the appellants had agreed to pay the maintenance charges at the aforesaid rate, they had agreed to pay the maintenance charges at the same rate when consent order dated 27.4.2005 was recorded. This order, therefore, would not be for future period alone and would cover the period from 1.1.2003 to 30.4.2005 as well, as held by the learned Single Judge in the impugned order.

5. We, therefore, do not find any infirmity in the said direction and dismiss this appeal.

(A.K. SIKRI) JUDGE (MANMOHAN SINGH) JUDGE July 21, 2008 nsk RFA (OS) No. 256/2007 nsk Page 5 of 5