Whether the respondent no. 1 who is occupying the 16th floor of the building in question,has not paid a single rupee onaccount of lease rent, maintenance charges, electricity chargesand other charges and, therefore, the order directing restorationof electricity without requiring the tenant­sub lessee to pay the requisite charges is totally without jurisdiction. ? In view of the aforesaid discussion we set aside the order of the Calcutta High Court and direct as under: I. We are of the view that respondent no. 1 must pay the following amounts for the restoration of electricity:­ i) Lease Rent of Rs.7,29,240 (for the period from 01.02.2012 to 02.12.2019). ii) Maintenance charges of Rs.2,11,20,000 (@ Rs.2,20,000 per month from 01.02.2012 to 31.01.2020). iii) Electricity charges of Rs.1,05,60,000 (@ Rs.1,10,000 per month from 01.02.2012 to 31.01.2020). II. Out of the total of Rs. 3,24,09,240 payable by respondent no.1, we direct it to pay Rs.1,00,00,000 within one month from today. Respondent no.1 shall pay the rest of the amount in three equal instalments of Rs.74,69,746, Rs.74,69,747, and Rs. Rs.74,69,747 to be paid on 15.03.2020, 15.04.2020 and 15.05.2020 respectively. III. In case the respondent no.1 pays the amount of Rs.1,00,00,000/­ to the petitioner then within 3 days of this payment, the petitioner shall restore the electricity. IV. With respect to the lease rent, electricity charges, maintenance charges and other charges, the petitioner shall raise a bill on or before 10th day of each month. The first such bill shall be raised on 10th March, 2020 and the amount shall be paid by respondent no.1 latest by 20th March, 2020. Even in case of any dispute, it shall deposit a sum of Rs.3,50,000/­ every month without prejudice to the rights of the parties. The dispute with regard to the remaining amount can be decided in accordance with law. V. The respondent no.1 through its Chief Executive (Authorised Signatory) shall file an affidavit undertaking to comply with the aforesaid direction within 2 weeks from today. VI. If any of these conditions are violated, the petitioner shall be entitled to disconnect the electricity.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 21341 OF 2019
INFINITY INFOTECH PARKS LIMITED …PETITIONER(S)
VERSUS
SHIVA JUTE MILLS PRIVATE LIMITED
THROUGH CHIEF EXECUTIVE
(AUTHORISED SIGNATORY) & ANR. …RESPONDENT(S)
O R D E R
Deepak Gupta, J.
This petition is directed against the order passed by the
High Court of Calcutta dated 31.07.2019 in C.O. No.541 of 2019
whereby it allowed the petition of the respondent no. 1 herein
and directed the petitioner herein to restore the electricity of the
property occupied by the respondent no.1 herein.

  1. The grievance of the petitioner is that the respondent no. 1
    who is occupying the 16th floor of the building in question
    comprising about 29,445 sq. ft., has not paid a single rupee on
    1
    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.
  2. We are only referring to the facts which are necessary for
    decision of this case and our discussion is restricted to passing
    an equitable order. The facts, shorn of unnecessary details, are
    that the petitioner­ Infinity Infotech Parks Limited is a lessee in
    the building known as INFINITY BENCHMARK, Bidhannagar, in
    the District of North 24­Parganas, Kolkata. The 16th floor of the
    said building was divided into 3 offices. The entire 16th floor
    along with 5 car parking spaces was sub­leased by the petitioner
    in favour of the respondent no. 2­ M/s. Pearl Studios Pvt. Ltd.,
    which in turn sub­leased the entire premises in favour of
    respondent no. 1 vide lease deed dated 01.02.2012 and the
    admitted case of the parties is that from 01.02.2012, the
    respondent no. 1 is in occupation of the property. The claim of
    the petitioner is that it is entitled to Rs.7,29,240/­ on account of
    lease rent up to 02.12.2019.
    2
  3. At the outset, we may note that certain disputes between
    petitioner and respondent no. 2 are the subject matter of
    arbitration proceedings and, therefore, we are not commenting on
    the merits of the same and are confining ourselves to the
    admitted fact that respondent no. 1 is in possession of the entire
    premises from 01.02.2012. We may also note that an objection
    was raised that the sub­lease in favour of respondent no. 1 is
    unregistered and insufficiently stamped and, therefore, should be
    impounded. We feel that this is a matter for the trial court to
    decide and we have looked into the lease deed only to strike out a
    balance between the parties and anything said in this order is
    without prejudice to the rights of the parties with regard to the
    admissibility of the lease deed in evidence. We make it clear that
    we have passed this order at the interim stage and any
    observations made herein are only for passing this interim order
    and shall not be taken into consideration while deciding the main
    proceedings which must be decided on the basis of the evidence
    led before the trial court or the arbitral tribunal.
    3
  4. 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.
  5. The petitioner has also claimed a sum of Rs.15 per sq. ft.
    per month as maintenance charges inclusive of taxes for the 3
    office areas measuring 29,445 sq. ft. Reference has been made to
    clause 5 and 7 of the lease deed, which are reproduced as under:
    “V. To bear and pay proportionate share of all kinds of
    expenses for all periodical repairs for common areas of
    the said building, Air conditioning, additions, alterations,
    treatment, polishing, maintaining, rebuilding and
    cleaning, painting, entrances, common landings
    corridors, staircases, sewers, drains pipes, electric lines
    and installation, insurance and other conveniences
    including annual maintenance charges in respect thereof
    as may be incurred by the Sub­Lessor, from time to time
    and such proportionate share together with service tax
    shall be calculated and apportioned by the Sub­Lessor
    conclusively and the same shall be binding on the SubLessee.
    xxx xxx xxx
    VII. It is made clear that the said service and
    maintenance together with air­conditioning charges as
    envisaged herein to be provided by the Sub­Lessor to the
    Sub­Lessee and such charges for the same shall be based
    upon all kinds of actual proportionate costs, charges and
    expenses of whatsoever nature plus 20% (twenty percent)
    management fee to be levied thereon and service tax as
    may be applicable shall be paid by the Sub­Lessee to the
    Sub­Lessor during the subsistence of this Sub­Lease and
    such proportionate share together with service tax shall
    be calculated and apportioned by the Sub­Lessor
    conclusively and the same shall be binding on the Sub4
    Lessee, provided further it is made clear that the SubLessee shall pay aforesaid charges for common services
    and maintenance as enumerated in the Fifth Schedule as
    stated hereunder and air­conditioning charges to be
    provided in the said sub­demised space at the fixed rate
    of Rs.15/­ per Sq.ft. for a period of one year from the date
    of commencement hereof and Sub­Lessor shall give
    rebate at the rate of Rs. 7/­ per Sq.ft. out of the said
    charges of Rs.15/­ per Sq.ft. for the initial period of two
    months from the date of commencement and thereafter
    with effect from 15th November, 2009 until the completion
    of one year the Sub­Lessee shall pay at the rate of
    Rs.15/­ per Sq.ft. per month as stated hereinabove.”
  6. The case of the petitioner is that the respondent no.1 has
    not paid a single rupee as maintenance charges and as per the
    terms of the lease deed, Rs.15/­ per sq. ft. was to be paid except
    for the months of August and September, 2009 for which a
    rebate of Rs.7 per sq. ft. was to be given, meaning thereby that
    for these two months only Rs.8/­ per sq. ft. was to be charged.
    On the other hand, on behalf of the respondent no. 1 it is claimed
    that no air­conditioning is being provided to the premises in its
    possession and, therefore, the rate of Rs.15/­ per sq. ft. is not
    payable. Relying upon clause 7 quoted hereinabove, it is
    contended that the amount of Rs.15/­ per sq. ft. was payable
    only for the first year from commencement of the sub­lease and,
    thereafter, it was to be paid on actual basis plus 20% as
    management fees to be levied thereupon and service tax as may
    5
    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.
  7. We have considered the rival contentions of the parties and
    we make it clear that we are not deciding this plea on merits.
    However, we have no doubt in our mind that the sub­lessee
    cannot claim that no amount is payable by it. It has not paid a
    single rupee to the petitioner despite occupying the premises for
    more than 7 years. We cannot appreciate this conduct of the
    sub­lessee. In a multi­storeyed building of this nature there has
    to be provision for security guards, cleaning services, lift
    operators, parking attendants, etc. When the parties had agreed
    that Rs.15/­ per sq. ft. per month would be paid in the first year,
    we can presume that the sub­lessee must have satisfied itself
    that these are the approximate expenses to be incurred by the
    petitioner for maintenance of the building. Since air­conditioning
    has admittedly not been provided by the petitioner, for the
    purpose of this order, we deem it fit and proper to fix the
    maintenance charges at 50% of the regular rate by giving a
    6
    discount of 50% for not providing the air­conditioning, which
    comes to Rs.7.50 per sq. ft. The maintenance charges payable
    @7.50 per sq. ft. for 29,445 sq. ft. works out to Rs.2,20,837.50
    per month which are rounded of to 2,20,000/­ per month.
  8. Coming to the second claim of electricity charges, the
    petitioner has claimed minimum demand charges at Rs. 384 per
    KVA per month plus electricity duty, transmission and
    distribution losses from the electricity bills placed on record by
    both the sides. It is not disputed that the entire building has a
    sanctioned load of 1445 KVA. The sanctioned load in respect of
    the premises on the 16th floor works out to 266.43 KVA. The
    contention of the respondent no.1 is that it has hardly used the
    premises and is only liable to pay the actual charges for the
    electricity consumed by it. It is also contended that since the
    petitioner has not raised invoices or produced the bills of actual
    consumption of the 16th floor, the respondent no.1 is not liable
    make such payment. We find that the respondent no.1 has
    placed on record bills of the year 2011 raised by the petitioner in
    respect of the same premises to the account of Pearl Studios Pvt.
    Ltd.­respondent no. 2 and these bills are for a sum of
    7
    Rs.76,571/­ + Rs.59,706/­ + Rs.3,96,855/­ i.e. total
    Rs.5,33,132/­, for a period of approximately one month.
    Electricity tariff has not come down and the contention of the
    respondent no.1 that it is only liable to pay electricity charges at
    the rate of Rs. 10,000/­, cannot be accepted. The area in its
    possession is almost 30,000 sq. ft. Even if there is no 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 we feel that as an interim measure the
    8
    respondent no.1 shall pay at least Rs.1,10,000/­ per month on
    this account.
  9. 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.
  10. 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
    9
    Rs.1,10,000/­ per month from 01.02.2012 till 31.01.2020 works
    out to Rs.1,05,60,000/­.
  11. In view of the aforesaid discussion we set aside the order of
    the Calcutta High Court and direct as under:
    I. We are of the view that respondent no. 1 must pay the
    following amounts for the restoration of electricity:­
    i) Lease Rent of Rs.7,29,240 (for the period from
    01.02.2012 to 02.12.2019).
    ii) Maintenance charges of Rs.2,11,20,000 (@
    Rs.2,20,000 per month from 01.02.2012 to
    31.01.2020).
    iii) Electricity charges of Rs.1,05,60,000 (@ Rs.1,10,000
    per month from 01.02.2012 to 31.01.2020).
    II. Out of the total of Rs. 3,24,09,240 payable by respondent
    no.1, we direct it to pay Rs.1,00,00,000 within one month
    from today. Respondent no.1 shall pay the rest of the amount
    in three equal instalments of Rs.74,69,746, Rs.74,69,747,
    and Rs. Rs.74,69,747 to be paid on 15.03.2020, 15.04.2020
    and 15.05.2020 respectively.
    10
    III. In case the respondent no.1 pays the amount of
    Rs.1,00,00,000/­ to the petitioner then within 3 days of this
    payment, the petitioner shall restore the electricity.
    IV. With respect to the lease rent, electricity charges,
    maintenance charges and other charges, the petitioner shall
    raise a bill on or before 10th day of each month. The first
    such bill shall be raised on 10th March, 2020 and the amount
    shall be paid by respondent no.1 latest by 20th March, 2020.
    Even in case of any dispute, it shall deposit a sum of
    Rs.3,50,000/­ every month without prejudice to the rights of
    the parties. The dispute with regard to the remaining
    amount can be decided in accordance with law.
    V. The respondent no.1 through its Chief Executive
    (Authorised Signatory) shall file an affidavit undertaking to
    comply with the aforesaid direction within 2 weeks from
    today.
    VI. If any of these conditions are violated, the petitioner shall
    be entitled to disconnect the electricity.
    11
  12. The petition is disposed of in the aforesaid terms. Pending
    application(s), if any, stand(s) disposed of.
    ……………………………..J.
    (Deepak Gupta)
    …………………………….J.
    (Aniruddha Bose)
    New Delhi
    February 7, 2020
    12