The court maintained that the force majeure clause invoked due to COVID-19 applied, necessitating shared rental obligations, and that damages claims require proof of actual loss under contract law.

1. Exemption allowed subject to all just exceptions.

2. The application stands disposed of.

RFA(OS)(COMM) 4/2022

3. This appeal has been filed against the judgment and decree dated 25.05.2022 passed by the learned Single Judge granting partial relief to the appellant/plaintiff, with the following prayers:

“a. Set aside the Judgment dated 25.05.2022 passed by the Ld. Single Judge Hon'ble Mr. Justice Amit Bansal in CS(COMM) No. 376 of 2020 to the extent of partial relief granted to Appellant/Plaintiff in respect of prayer 'b', 'c' and 'd' of the amended suit;

b. decree the suit of Appellant/Plaintiff with respect to its prayers made in the amended suit along with 18% interest;

c. Award costs of the appeal;

d. Award legal costs for the appeal of Appellant;”

4. The appellant is the owner of leased property situated at Connaught Place- Ground Floor measuring about 2400S.ft. and basement measuring about 400S.ft. (demised premises). A tripartite lease deed dated 04.01.2018 was executed between the appellant/plaintiff (lessor) and respondent No. 1/ defendant No. 1 along with one Keikaku India (P) Ltd. (collectively lessees) for a period of 9 years, i.e., from 01.12.2017 to 30.11.2026. The rent was fixed at ?27,00,000/- per month from 30.01.2018 to 30.11.2020. Statutory tax such as GST applicable on the monthly rent was to be borne by the lessees. The lessees also deposited an amount of ?1,08,00,000/- towards Interest Free Refundable Security Deposit as per Clause 7 of the lease deed.

5. On 10.01.2019, the appellant was informed about Keikaku India (P) Ltd. withdrawing from the lease deed with effect from 01.02.2019. Subsequent thereto, the respondent No.2/defendant no. 2 was appointed as the new franchisee of respondent No.1 and agreed to be bound by the terms and conditions of the lease deed.

6. On 30.03.2020, due to COVID-19 pandemic, the respondent No.1 via email made a request to the appellant for waiving off the obligation of paying rent as the demised premises were closed. A further notice was sent by the respondent No.1 to the appellant on 02.04.2020, asking for waiver of payment of rental dues till the demised premises became operational. Rent remained due for months of April and May of 2020. In reply, the appellant informed the respondent No.1 by email dated 28.05.2020, that the force majeure clause in the lease deed is only for ‘deferment of date of rent payment’ and not for waiver of rent. Instead, the respondent No.1 was offered a pre-approved payment plan in view of the arrears for the months of April and May of 2020, whereby the respondent No. 1 was to pay an amount of ?48,60,000/- which is 50% of the due amount after deduction of ?5,40,000/- as TDS, in two installments: the first by 10.06.2020 and the second by 10.07.2020. Further, by email dated 01.06.2020 the appellant reminded the respondent No.1 about the outstanding rent for the months of April and May of 2020 by sending invoices.

7. On 01.06.2020, the respondent No. 1 called the appellant seeking a financial support package in the form of a waiver of contractual rent for the months of April and May, 2020. However by email dated 03.06.2020, the appellant declined the request made by the respondent No. 1.

8. Upon a furthe