JUDGMENT Arif S. Doctor, J. - The present Commercial Summary Suit is instituted for recovery of a sum of Rs. 3,06,38,559/- (Rupees Three Crore Six Lakh Thirty Eight Thousand Five Hundred and Fifty Nine) being claimed as a refund of the balance security deposit paid by the Plaintiff to the Defendant along with interest at the rate of 18% per annum from 7th December, 2020 till payment and / or realization. Brief facts 2. Plaintiff, by an Agreement dated 26th December, 2016 had taken on leave and license basis a premises admeasuring 30,000 sq. ft. super built up area on the 5th Floor of a building known as 'Rolta Tower One', situated at Marol, Andheri East, Mumbai-400 093 from the Defendant. The relevant clauses of the said Agreement are as follows:- '2. Duration of License. 2.1. The term of this License shall be for a period of 5 (five) years i.e. 60 (Sixty), months and shall commence from 1st February, 2017 ('License Commencement Date') and end on 31st January, 2022 (hereinafter referred to as the ' License Term'). The 'Lock- In Period' will be 42 (Forty Two) months (36 (Thirty Six) months + 6 (Six) month' notice period from the license commencement date during which neither the licensee nor the licensor shall be entitled to terminate this Agreement, save and except as provided hereinafter. 2.2. In the event the Licensee terminates the Agreement and/or is desirous of vacating the Licensed Premises during the License Term for the reasons other than those mentioned in this Agreement, the Licensee shall be liable to pay to the Licensor the entire License Fee for the remaining/unexpired period of the License Term. 2.3. At the end of every 1 (One) year, the License Fee shall stand escalated by 5.5% (Five and half per cent) over the last paid License Fee. 2.4 In the event the Licensee does not opt to renew the License before the expiry of the License Term, then the Licensee shall vacate the Licensed Premises upon expiry of this Agreement. 2.5. This Agreement is valid for 60 months (5years) only. On expiry, a new Agreement will be executed. '6. License Interest Free Security Deposit 6.1 The Licensee shall on the execution and registration pay to the Licensor a sum of Rs. 2.5. This Agreement is valid for 60 months (5years) only. On expiry, a new Agreement will be executed. '6. License Interest Free Security Deposit 6.1 The Licensee shall on the execution and registration pay to the Licensor a sum of Rs. 3,82,20,000/- (Rupees Three Crore Eighty Two Lacs and Twenty Thousand Only), as and by way of an Interest Free Refundable Security Deposit equivalent to 13 (Thirteen) month's License Fee (hereinafter collectively referred to as 'License Interest Free Security Deposit'), as per the details given below, as security and guarantee for the performance of the all its obligations enumerated in this Agreement and in consideration of the grant on License of the Licensed Premises by the Licensor and the receipt of which the Licensor doth hereby acknowledged. To Rolta India Limited thru' RTGS - IFSC UBIN0554227, A/C No. 542201010050000 Union Bank of India, Rolta Technology Part, Andheri (East), Mumbai-400093 for a sum of Rs. Rs. 3,82,20,000/-/-(Rupees Three Crore Eighty Two Lacs and Tenty Thousand Only) paid simultaneous to the signing of this Agreement. 6.2 The Licensor shall refund the amount of License Interest Free Security Deposit by Pay Order or by RTGS transfer, without any interest tot he Licensee simultaneously upon (i) the expiry or earlier termination of this Agreement, (ii) upon the Licensee handing over vacant and peaceful possession f the Licensed Premises to the Licensor in good condition, normal wear and tear excepted and (iii) upon the Licensee paying the License Fee, due and payable if any and other amounts, dues and charges, to the Licensor on the expiry or earlier termination of the Agreement. In the event, the Licensee fails to rectify any damage, defects as more particularly set out in Clause 7.4 then, the Licensor shall have the right to deduct from the License Security Deposit any amount which may be required to repair the damage (as certified by an architect appointed by the Licensor), if any, done by the Licensee to the Licensed Premises and any amount payable by the Licensee under the Agreement. 6.4 In the event, the Licensor fails to return the License Interest Free Security Deposit as stated in Clause 6.2 above, the Licensee shall be entitled to hold the possession but cannot use and occupy the Licensed Premises till such time, the License Interest Free Security Deposit is returned by the Licensor along with interest @ 18% per annum'. 4. 6.4 In the event, the Licensor fails to return the License Interest Free Security Deposit as stated in Clause 6.2 above, the Licensee shall be entitled to hold the possession but cannot use and occupy the Licensed Premises till such time, the License Interest Free Security Deposit is returned by the Licensor along with interest @ 18% per annum'. 4. On entering upon the said Agreement the Plaintiff made a deposit of Rs. 3,82,20,000/-(Rupees Three Crore Eighty Two Lakh Twenty Thousand Only) as being the security deposit in terms of Clause-6.1 of the Agreement. 5. On 2nd May, 2017, the parties entered into an Addendum (First Addendum), by which the Defendant granted to the Plaintiff an additional storage space of approximately 403 square feet in the lower ground floor of the same building for an additional license fee of Rs. 35,000/- per month. 6. Thereafter, certain negotiations and correspondence took place between the Parties pursuant to which the Parties entered into an Addendum dated 21st June, 2019 (Second Addendum) which provided as follows:- NOW, THEREFORE, THIS ADDENDUM WITNESSTH as follows: License Fee It is hereby agreed that the Licensee shall pay the following, to the Licensor for the use and occupation for the Licensed Premises, a. A monthly License Fee for Rs. 31,01,700/- (Rupees Thirty One Lakh One Thousand Seven Hundred Only), calculated at the rate of Rs. 103.30 (Rupees One Hundred Three and paise Thirty None only) per sq. ft. per month plus applicable taxes for 30,000 (Thirty Thousand Only) sq. ft SBU for the Licensed Premises for the remaining Term of the Agreement subject to statutory deductions as per law for the time being in force; b. A monthly License Fee of Rs. 36,925/- (Rupees Thirty Six Thousand Nine Hundred Twenty Five Only) plus applicable taxes for storage space for the remaining Term of the Agreement subject to statutory deductions as per law for the time being in force; Advance Rent The Licensee has agreed to pay to the Licensor a sum of Rs. 1,24,06,800/- (Rupees One Crore Twenty Four Lakhs Six Thousand and Eight Hundred Only) plus applicable taxes, as and by way of an Interest Free Advance Rent equivalent to 4 (Four) months' License Fee in lieu of the waiver in the annual escalation of the License Fee. 1,24,06,800/- (Rupees One Crore Twenty Four Lakhs Six Thousand and Eight Hundred Only) plus applicable taxes, as and by way of an Interest Free Advance Rent equivalent to 4 (Four) months' License Fee in lieu of the waiver in the annual escalation of the License Fee. This advance rent shall be adjusted against the last 4 (Four) months' License Fee of the usage of the Licensed Premises during the notice period i. It is agreed between the parties that save and except the terms and conditions stated herein, all other terms and conditions as agreed upon between the Licensor and the Licensee in the Agreement dated 26th December, 2016 and Addendum No. 1 will apply to this Addendum. ii. The parties mutually agree that upon execution of this Addendum the terms and conditions set forth herein shall become an integral part of the Agreement effective as on the date of execution of this Addendum. iii. This Addendum may be executed in two counterparts, each of which taken together shall constitute a single instrument. 7. The Plaintiff in terms of the Second Addendum, paid to the Defendant an amount of Rs. 1,24,06,800/- (Rupees One Crore Twenty Four Lakhs Six Thousand and Eight Hundred Only) along with applicable GST as and by way Interest Free Advance Rent equivalent to four months license fee. 8. On 6th June, 2020, the Plaintiff addressed a notice of termination to the Defendant informing the Defendant that as per clause 2.1 of the said Agreement the Lock in Period of 42 months would be expiring in July, 2020, and hence, the Plaintiff would be surrendering possession of the said premises on 31st July, 2020 to return the security deposit and the interest free advance amount against the surrender of the licensed premise on 31st July, 2020. 9. The Defendant by its letter dated 11th June, 2020 invited the Plaintiff's attention to Clause 2.1 of the said Agreement and pointed out that the 6 months notice period for the termination of the said Agreement would come to an end on 6th Deember, 2020. The Defendant put to the Plaintiff's notice that until such time as the notice period gets over, the Plaintiff would be required to pay rent for the said premises as also for the additional storage area including other monthly charges. The Defendant put to the Plaintiff's notice that until such time as the notice period gets over, the Plaintiff would be required to pay rent for the said premises as also for the additional storage area including other monthly charges. The Defendant pointed out that failure to do so would be in violation of the terms of the Agreement. 10. The Plaintiff, by its e-mail dated 6th July, 2020 agreed and acknowledged that the termination of said Agreement would be effective on 6th December, 2020 and informed the Defendant that they would be surrendering the licensed premises on or before 6th December, 2020 and in view thereof called upon the Defendant to simultaneously return the security deposit and interest free advance amount after deducting the license fee for the license premises and storage space for the period starting from 1st June, 2020 to 6th December, 2020. 11. The Defendant by its letter dated 16th July, 2020 informed the Plaintiff that the security deposit and interest free advance would be refunded on the completion of the notice period i.e. 6th December, 2020 and until such time, the Plaintiff should continue to pay license fees for the licensed premises and the storage space. 12. The Plaintiff by its letter dated 23rd July, 2020 informed the Defendant that the Plaintiff had in terms of the Second Addendum already paid interest free advance rent equivalent to four months license fee which was to be adjusted against the last four months license fee and requested the Defendant to adjust the license fee and other monthly dues for the period 1st June, 2020 to 31st July, 2020 from the security deposit and interest free advance rent amount already deposited. The Defendant by its letter dated 14th August, 2020 inter-alia agreed to adjust license fees for the licensed premised and storage space for the notice period of six months from the security deposit and interest free advance amount. 13. By a letter dated 2nd December, 2020 the Plaintiff informed the Defendant that they were ready and willing to surrender the peaceful possession of the licensed premises on 6th December, 2020 and called upon the Defendant to accordingly refund the security deposit amount in accordance with the Clause-6.2 of the said Agreement. 13. By a letter dated 2nd December, 2020 the Plaintiff informed the Defendant that they were ready and willing to surrender the peaceful possession of the licensed premises on 6th December, 2020 and called upon the Defendant to accordingly refund the security deposit amount in accordance with the Clause-6.2 of the said Agreement. The Defendant, however, by its letter dated 22 nd December, 2020 marked 'without prejudice' refused to refund the security deposit and interest free advance amount after making the adjustment of the amounts as mentioned in the letter dated 14th August, 2020. The Defendant stated that the Plaintiff had agreed to occupy the licensed premises for the entire license period i.e. up to and including 31st January, 2022 and called upon the Plaintiff to pay the Defendant an additional amount of Rs. 1,21,45,700/-(Rupees One Crore Twenty One Lakh Forty Five Thousand Seven Hundred only) towards Lease Rent and storage space. 14. Thereafter, correspondence ensued between the parties by which essentially the Defendant reiterated its stand that the plaintiff was to use and occupy the said premises for the entire duration of the License Term which was up to January, 2022. Submissions of Mr. Piyush Raheja appearing on behalf of the Plaintiff: 15. Mr. Raheja, the learned Counsel appearing on behalf of the Plaintiff invited my attention to the said Agreement, more particularly 'Article - 2' which provided for 'Duration of License'. He pointed out from Clause 2.1 thereof, that the term of the license was to be for a period of five years i.e. 60 months which was to commence from 1st February, 2017 and was to end on 31st January, 2022. He submitted that the 'Lock in Period' was to be a 42 months (36 months + 6 month notice period) from the license commencement date, during which neither the licensee nor the licensor shall be entitled to terminate the Agreement except as provided for in the said Agreement. In addition to said clause, learned Counsel also invited my attention to Article-6 which provided for 'License Interest Free Security Deposit' and more particularly Clause 6.2 thereof, which provided that the licensor shall refund the amount of License Interest Free Security Deposit simultaneously upon (i) the expiry or early termination of the said Agreement (ii) upon licensee handing over the vacant and peaceful possession of the licensed premises to the licensor in good condition. (iii) upon licensee paying the license fee due and payable if any and another amount, due and charges to the licensor on the expiry or early termination of the Agreement. 16. He additionally pointed out that in terms of Clause 6.4, in the event the licensor failed to return the Interest Free Security Deposit as provided for in Clause 6.2 of the said Agreement, the Licensee would be entitled to retain possession of the licensed premises without use and occupation thereof, till such time that the License Interest Free Security Deposit was not returned by the Licensor along with interest at the rate of 18% per annum. 17. Mr. Raheja, then invited my attention to the Second Addendum and submitted that the same only contemplated deletion of clause 2.3 of the said Agreement which provided for an annual escalation of the License Fee. He submitted that in view thereof, the parties had agreed to (a) revise the License Fee payable by the Plaintiff to the Defendant as follows, viz. i. Rs. 31,01,700/- in respect of License Premises 'for remaining Term of the Agreement' and ii. Rs. 36,925/- in respect of storage space for the remaining Term of the Agreement. He submitted that in addition to the revised license fee, the plaintiff had also agreed to deposit with the Defendant four months advance lease rent. He submitted that save and except these two changes, the said Agreement remained unaltered as was evident from what was recorded in the Second Addendum viz. 'i. It is agreed between the parties that save and except the terms and conditions stated herein, all other terms and conditions as agreed upon between the Licensor and the Licensee in the Agreement dated 26th December, 2016 and Addendum No. 1 will apply to this Addendum. ii. The parties mutually agree that upon execution of this Addendum the terms and conditions set forth herin shall become an integral part of the Agreement effective as on the date of execution of this Addendum.' Mr. Raheja, submitted that the Second Addendum made clear that the sum as agreed to be paid as 'Advanced Rent' was to be adjusted against the last four months license fee for usage of the said premises through the notice period. Raheja, submitted that the Second Addendum made clear that the sum as agreed to be paid as 'Advanced Rent' was to be adjusted against the last four months license fee for usage of the said premises through the notice period. He thus, submitted that by the Second Addendum the License Term remained unaltered as did right of the Plaintiff to terminate the said license after the expiration of the lock in period.. 19. Mr. Raheja then submitted that the correspondence which ensued between the parties from June, 2020 to August, 2020 made it clear that even the Defendant had understood that the Plaintiff's right to terminate the Agreement after the 'Lock in Period' was over, subsisted post the Second Addendum. In support of his contention he invited my attention to the following letters of the Defendant addressed to the Plaintiff viz. (i) Letter dated 11th June 2020 'Dear Sir, Kindly refer to your letter dtd. 06.06.20 on the captioned subject and in response - our letter dtd 06.06.20, acknowledged by you. As per the L&L agreement dtd. 16.12.2016, executed between Rolta India Ltd & Diebold Nixdorf India Pvt. Ltd (formally known as 'Diebold Systems Pvt. Ltd.), we would like to once again inform you that as per clause - 2 / sub clause- 2.1 of the agreement, confirms to serve 06 months of notice period and termination of L & L ends on 06.12.2020. Till such time your notice period gets over (by 06.12.2020) you need to pay rent of the leased premises, rent of addl. Storage space and other monthly dues (electricity etc) regularly/monthly basis upto 06.12.2020. Failing which, as per law it will be a violation of terms of agreement. You are requested to take a note of completion of notice period on 06.12.2020. This is for your information and doing the needful, at your end.' (ii) Letter dated 16th July 2020 'Dear Sir, Kindly refer to you mail dtd. 08.07.20, confirming to continue occupying the leased premises, till the end of notice period i.e. 06.12.2020. In this regard we have received directives from our Management and same are forwarded for your information necessary action at you end: Security deposit and Advance rent shall be returned to you on completion of notice period & peaceful vacating of the premises. To pay monthly rent of Leased premises & storage area- regularly. In this regard we have received directives from our Management and same are forwarded for your information necessary action at you end: Security deposit and Advance rent shall be returned to you on completion of notice period & peaceful vacating of the premises. To pay monthly rent of Leased premises & storage area- regularly. Based on consumption, to pay monthly electricity bill - regularly. (iii) Letter dated 14th August 2020 'Dear Sir, We are in receipt of your letter dtd. 23.07.20 intimating to adjust rent of 6 month notice period against the Advance Rent & refundable interest free security deposit. In this regard we have received directives from our Management and same are forwarded for your information necessary action at your end: Rent of 06 months notice period shall be adjusted against the Advance Rent & security deposit.' He therefore submitted that there was no manner of doubt that the Defendant had accepted that the Plaintiff's termination of the said Agreement after expiry of the lock in period. 20. He pointed out that it was only by the letter dated 22nd December, 2020 that the Defendant did a volte-face by contending (i) that the escalation clause was agreed on the condition that the Plaintiff would occupy the said premises for the entire term of the said Agreement i.e. up to an including 31st January, 2020 (ii) that the Plaintiff's letter dated 6th June, 2020 for termination was against the spirit of the said Agreement and tantamounted to a breach of trust (iii) that the Defendant was bound and liable to make payment of lease rent up to January, 2022. He submitted that the Defendant's interpretation of 'Remaining Term of the Agreement' used in the recital of the Second Addendum to contend that the Plaintiff had agreed to make use of the said premises for the entire term i.e. up to an including 31st January, 2022 was plainly false and incorrect as the reference to 'Remaining Term of the Agreement' in the Second Addendum was used only in the context of payment of the revised license fee. He had submitted that the reason for using this term was only to clarify that the revised license fee was applicable to all future payments and did not affect the license fees paid in the past. He had submitted that the reason for using this term was only to clarify that the revised license fee was applicable to all future payments and did not affect the license fees paid in the past. He therefore submitted that it was clearly beyond the pale of any doubt that the contention of the Plaintiff was entirely false and dishonest and contrary to a plain reading of the said Agreement as modified by the Second Addendum. 21. Without prejudice to the aforesaid submission Mr. Raheja submitted that even if there was any ambiguity which he submitted in this case there was not the conduct of the parties must be looked at in order to determine how the parties understood the said Agreement. In support of his contention he placed reliance upon the following two judgments of the Hon'ble Supreme Court. i) Abdulla Ahmed v. Animendra Kissen Mitter., 1950 SCC 15-paragraph 35. ii) Rashtriya Chemicals & Fertilizers Ltd. v. Chowgule Bros., (2010) 8 SCC 563 - paragraph 17 to 19. Mr. Raheja pointed out that from the correspondence which ensued between the parties from 6th June, 2020 to 14th August, 2020 it was clear that the Defendant accept that the Plaintiff's right to terminate the said Agreement after the lock in period was over continued to subsist even after the Second Addendum was entered into. He took pains to point out that the Plaintiffs had accepted the Defendants contention of a six months notice period even beyond the lock in period of 42 months had expired. He therefore, pointed out that the Defendant had accepted the adjustment of the security deposit and advance rent during the said period as well as made payment of other monthly dues demanded by the Defendants letter dated 14th August, 2020. He submitted that the Defendant having taken this categorical stand could not now plead to the contrary to contend that the lock in period had been given by a go by to the Second Addendum. 22. He submitted that in the Defendant's letter dated 22nd December, 2020, there was absolutely no mention of the correspondence which ensued between the parties from June to 14th August, 2020. He submitted that the only explanation contained in the Affidavit-in-Reply was that the correspondence had been sent in ignorance of the terms of the Second Addendum and without understanding its implication. Mr. He submitted that the only explanation contained in the Affidavit-in-Reply was that the correspondence had been sent in ignorance of the terms of the Second Addendum and without understanding its implication. Mr. Raheja submitted that this stand of the Defendant was also dishonest and false, since the Defendant had in its letter dated 23rd July 2020, not only referred but also enclosed the Second Addendum and had sought adjustment of the advance rent against the license fees due from the Plaintiff. He submitted that this had been accepted and confirmed by the Defendant in the letter dated 14th August, 2020. He submitted that letter dated 14th August, 2020 had been issued after obtaining directions from the management of the Defendant. Thus for the Defendant to contend that the communications which ensued between the parties during June and August were in ignorance of the Second Addendum or were sent without understanding the implications of the Second Addendum was a plainly false and dishonest contention. 23. Mr. Raheja, submitted that the Plaintiff had complied with all the requirements of Clause 6.2 of the Leave and License Agreement and thus, the Plaintiff was entitled to the interest at the rate of 18% per annum under Clause 6.4 of the said Agreement, since, the Defendant had wrongfully withheld the security deposit. 24. In these circumstances, Mr. Raheja submitted that the conduct of the Defendant was entirely malafide and Plaintiff was entitled to a decree as prayed for. The submissions of Mr. Aseem Naphade, on behalf of the Defendant 25. Mr. Naphade, learned Counsel appearing on behalf of the Defendant submitted that the Defendant had agreed to give up / waive the annual escalation of license fee as mentioned in Clause 2.3 of the said Agreement on the basis/understanding that the Plaintiff would then make use of the licensed premises for the remaining term of the Agreement i.e. upto 31st January, 2022. He submitted that this was apparent from the use of the words 'for the remaining term of the Agreement' as used in the Second Addendum. He submitted that this was apparent from the use of the words 'for the remaining term of the Agreement' as used in the Second Addendum. He therefore submitted that after execution of the Second Addendum, the Plaintiff was bound to use the said premises up to 31st January, 2022 and inter alia pay the monthly revised lease rent and it was on this understanding that the defendant had agreed to waiver of the annual escalation of the lease rent as more particularly provided for in clause 2.3 of the said Agreement. 26. Mr. Naphade then submitted that the said Agreement was a Commercial Contract and must therefore necessarily be construed as such. He submitted that the Second Addendum had been entered into just one year before the expiry of the lock in period and if the Second Addendum were to be construed in the manner as contended by the Plaintiff, then there would be no real benefit to the Defendant for agreeing to give up the 5% annual escalation as provided for in Clause 2.3 of the said Agreement. He submitted that the benefit to the Defendant in agreeing to give up the annual escalation of 5% would only inure if the Plaintiff was to continue to use and occupy the said premises upto 31st January, 2022 i.e. 'for the remaining Term of the Agreement'. In support of his contention that the said Agreement was a Commercial Contract and therefore must be construed as such, he placed reliance upon a judgment of the Hon'ble Supreme Court in the case of Indsil Hydropower V/s. State of Kerala (2020) 16 Supreme Court Cases 276 : 2019 SCC OnLine SC 1194 and based thereon submitted that the said Agreement must therefore be read and understood in its entirety so as to attribute to it a business meaning which was within the understanding of the contracting parties. 27. Mr. Naphade then without prejudice to his contention that by the Second Addendum it was agreed and understood that the Plaintiff was to make use of the licensed premises 'for the remaining Term of the Agreement', he submitted that the correspondence which preceded the Second Addendum made the same clear. He invited my attention to the emails exchanged between the parties in particular the e-mail dated 20th May, 2019 addressed by the Defendant to the Plaintiff which reads thus, viz. He invited my attention to the emails exchanged between the parties in particular the e-mail dated 20th May, 2019 addressed by the Defendant to the Plaintiff which reads thus, viz. 'Dear Kartik, As communicated earlier, your proposal for Rentals payable quarterly in advance and additional 3 months Security Deposit in lieu of reduction in rental charges can be agreeable subject to lock-in period extended atleast upto current lease agreement period i.e. 31 Jan 2022. After July' 20, the standard increase as per the agreement will be applicable. We regret to inform you that any preponing of the lock-in period as requested in your trail email is not possible Mr. Naphade submitted that in India, pre-contract correspondence can be considered in cases of ambiguity and doubt and in order to ascertain the true intention of the parties. In support of his contention he placed reliance upon a judgment of the High Court of Madras in the case of The Board of Trustees of Chennai Port Trust, rep. By its Chairman, Rajaji Salai, Chennai Vs. Chennai Container Terminal Private Ltd., 2014 SCC OnLine Mad 73 : (2014) 1 CTC 573 : (2014) 2 Mad LJ 131 : (2014) 2 Arb LJ 394 'Relevance of Pre-Contract Correspondence. 45. Though English Law was by and large to the effect that once a contract comes into existence, the pre-contract correspondence loses its significance and hence cannot be looked into for the purpose of finding out the intention of the parties, the Indian Law appears to have taken a small deviation. Though the reasons for such deviation are not spelt out very clearly in any of the decisions, I think the reasons are too obvious to state. The advantage that the English draftsman had was that both obvious to state. The advantage that the English draftsman had was that both contracting parties in England could think in their mother tongue, communicate with contracting parties in England could think in their mother tongue, communicate with each other in their own mother tongue and enter into a Contract in the same tongue in which they thought and spoke. But, in India, the situation is completely different. But, in India, the situation is completely different. The contracting parties, if hailing from different regions even within the country, had to go through a thought process in their own mother tongue, translate them into commercial terms in a foreign tongue, namely English and then have their own communications reduced into writing in English, and that too through a third party. Therefore, I find that we cannot import the straight jacket formula adopted by the English Courts with regard to the admissibility of pre-contract correspondence. 53 Therefore, it is clear that there is no absolute embargo for looking into the pre-contract correspondence, for finding out the matters on which the parties were ad idem. As a matter of fact, the minority Arbitrator relied upon the Sixth Proviso to Section 92 of the Evidence Act and I think that is the correct exposition of law, with regard to the pre-contract correspondence, as seen from the decisions listed above. Whether there was scope for interpretation of Article 3.09:' He thus submitted that in the present case the pre-contract correspondence also made it clear that the Defendant had agreed to waive the annual escalation on the condition that the Plaintiff would remain in use and occupation of the said premises up to the end of the term of the Agreement i.e. 31st January, 2022 and that the Defendant had not agreed to a preponement of the lock in period though requested for by the Plaintiff. 28. Mr. Naphade, then submitted that the amount deposited as per Clause 6.1 of the said Agreement had been deposited not only as security deposit but also as a guarantee for the performance of all the Plaintiff's obligations under the said Agreement. He submitted that since the Plaintiff had failed and neglected to use and occupy the said premises up to 31st January, 2022, the Plaintiff was in breach of its obligations and thus the Defendant was entitled to appropriate the said sum of Rs. 3,82,20,000/- which was given/deposited in the nature of a performance guarantee. Reasons and Findings 29. I have heard learned Counsel and perused a copy of the pleadings and considered the case law cited and accordingly hold as follows: (i) I find that the Defendants contention that by the Second Addendum, the Plaintiff had agreed to use and occupy the said premises upto 31st January, 2022 to be entirely untenable. Reasons and Findings 29. I have heard learned Counsel and perused a copy of the pleadings and considered the case law cited and accordingly hold as follows: (i) I find that the Defendants contention that by the Second Addendum, the Plaintiff had agreed to use and occupy the said premises upto 31st January, 2022 to be entirely untenable. An addendum by its very definition is merely a document to add new terms and conditions and/or to make modifications to an already existing contract/agreement. In the present case, the said Agreement is exhaustive and encapsulates all the corresponding rights and obligations of the Parties. The said Agreement inter alia defines 'License Term' and 'License Fee'. The definition of 'License Term' is to be found in clause 2.1 of the said Agreement which provides that the License Term was to be for the period of five years commencing from 1st February, 2017 (License Commencement Date) and was to end on 31st January, 2022. Clause 2.1 also provides for a 'Lock in Period' which was to be 42 months i.e. 36 months + 6 months notice period from license commencement date i.e. 1st February, 2017. During this period neither the Licensee nor the Licensor were entitled to terminate the said Agreement save and except as provided for in the said Agreement. The said Agreement also defines 'License Fee' at clause 4.1 Thus both the License Term and License Fee were terms defined and more particularly spelt out in the said Agreement. A perusal of the Second Addendum makes clear that the Parties did not include therein 'License Term' and the only changes to the said Agreement were (i) waiver/deletion of clause 2.3 (ii) revision of the 'License Fee' and (iii) addition of the obligation of payment of 'Advance Rent'. All other terms of the said Agreement thus remained unaltered, including the 'License Term' and the same is specifically recorded in the Second Addendum as already noted above. Therefore even after execution of the Second Addendum, clause 2.1 remained in full force and effect and with it the Plaintiffs right to terminate the said Agreement after the expiry of the lock in period. Therefore even after execution of the Second Addendum, clause 2.1 remained in full force and effect and with it the Plaintiffs right to terminate the said Agreement after the expiry of the lock in period. It is beyond the pale of doubt that the words 'for the remaining Term of the Agreement' have been used only in the context of the revised definition of License Fee and to make clear that the Plaintiff shall have to make payment of the revised license fee for the duration of the said Agreement after the Second Addendum and not for the period prior to the Second Addendum. Thus the Defendants contention that the License Term stood amended or that the use of these words made implicit that the Plaintiff had agreed to use and occupy the said Licensed Premises upto 31st January, 2022 is entirely misplaced and untenable. (ii) Additionally, I find that the conduct of the Parties and the correspondence exchanged made clear that both Parties were ad idem on their understanding that the Second Addendum did not (a) oblige the Plaintiff to use and occupy the licensed premises up to 31st January 2022 and (b) affect the Defendant's right to terminate the said Agreement after the lock in period was over. This is made more than clear from the Defendants letters dated 11th June 2020, 16th June 2020 and 14th August 2020. The letter dated 14th August, 2020 infact specifically makes a reference to the directions received from the management of the Defendant. Therefore, it is clear that the Defendant had acted in an informed and advised manner when dealing with the Plaintiffs termination notice dated 6th June 2000. I find force in the judgments cited by Mr. Raheja in the case of Abdulla Ahmed v. Animendra Kissen Mitter., 1950 SCC 15 and Rashtriya Chemicals & Fertilizers Ltd. v. Chowgule Bros., (2010) 8 SCC 563 which hold that the conduct of the Parties must be looked into to see how the Parties understood the said Agreement. Clearly in this case both Parties acted on a common understanding that the Plaintiffs right to terminate the said Agreement after the lock in period, continued to subsist even after the Second Addendum was entered into. Clearly in this case both Parties acted on a common understanding that the Plaintiffs right to terminate the said Agreement after the lock in period, continued to subsist even after the Second Addendum was entered into. I therefore find that the stand taken by the Defendant taken for the first time in the letter dated 22 nd December, 2022, curiously on a without prejudice basis is clearly in the nature of an afterthought and a stand that is totally untenable in the facts of the case. (iii) I find that the contention that the present contract is a commercial contract and must therefore be construed so to also be irrelevant in the facts of the present case. While there is no doubt that the said Agreement present is a commercial contract there is no occasion for this Court to interpret the same as sought for by the Defendant. The terms of the said Agreement as modified by the Second Addendum are amply clear that there is no room for ambiguity or doubt or for this court to getting to construing the contract in a manner that is now sought for by the Defendant. The record reflects that the Second Addendum was entered into after much negotiation and exchange of correspondence. Had the Defendant agreed to waive the annual escalation of the annual lease rent on the condition that the Plaintiff would continue to use and occupy the said premises up to 31st January 2022 then nothing prevented the defendant from appropriately modifying 'License Term' in the Second Addendum. Not only was this not done, the second addendum in fact made specific reference to the notice period which is implicit of the fact that the Plaintiffs right to terminate the said Agreement continued to subsist even after the said Agreement was modified by the Second Addendum. Therefore, in the facts of the present case there is no need much less occasion for this Court to interpret the contract when the plain terms thereof are clear and the Parties have understood and acted in accordance with them. Therefore, in the facts of the present case there is no need much less occasion for this Court to interpret the contract when the plain terms thereof are clear and the Parties have understood and acted in accordance with them. I also find that there is either need nor occasion to consider any pre contract correspondence for two reasons, (i) that both the terms of the said Agreement as also the understanding of the Parties of the same was clear and beyond the doubt and (ii) the pre contract correspondence relied upon by the Defendant ignored the subsequent correspondence which ensued between the Parties from which it is clear that the Plaintiffs had not agreed to use and occupy the said premises upto 31st January, 2022. The judgment in the case of The Board of Trustees of Chennai Port Trust, rep. By its Chairman, Rajaji Salai, Chennai Vs. Chennai Container Terminal Private Ltd., 2014 SCC OnLine Mad 73 : (2014) 1 CTC 573 : (2014) 2 Mad LJ 131 : (2014) 2 Arb LJ 394 relied upon by Mr. Naphade in support of the contention that pre contract correspondence can be looked at in certain cases is entirely inapplicable to the facts of the present case. In any event I have found that the parties were ad idem and the same is also borne out from the conduct of the Parties post the Second Addendum. The facts in the case relied upon are entirely inapplicable to the present case where both the Parties are large corporate entities who have the benefit of and act under legal advice. Additionally, clause 19.2 of the said Agreement made it specifically clear that the said Agreement would constitute the 'Entire Agreement'. Hence the question of considering any pre contract correspondence does not arise. 29. For the reason stated aforesaid, I find that the defenses raised by the Defendant are entirely frivolous and vexatious. The Defendant has not raised any substantial defense much less any triable issue. The Hon'ble Supreme Court in the case of IDBI Trusteeship Services Limited vs. Hubtown Limited held as follows, viz. '17.5. 29. For the reason stated aforesaid, I find that the defenses raised by the Defendant are entirely frivolous and vexatious. The Defendant has not raised any substantial defense much less any triable issue. The Hon'ble Supreme Court in the case of IDBI Trusteeship Services Limited vs. Hubtown Limited held as follows, viz. '17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.' In the circumstances, the following order:- : Order : i. Summons for Judgement is allowed. ii. Suit stands decreed as follows, viz. a. The Defendant to pay the Plaintiff the sum of Rs.3,06,38,559/- (Rupees Three Crores Six Lakhs Thirty Eight Thousand Five Hundred and Fifty Nine only) alongwith interest at the rate of 12% p.a. from 7th December 2020 till payment and/or realization. b. The Defendant to pay the Plaintiff the sum of Rs.4,81,870/-(Rupees Four Lakhs Eight One Thousand Eight Hundred and Seventy only) alongwith interest at the rate of 12% p.a. from 7th December 2020 till payment and/or realization iii. The Plaintiff is entitled to the refund of Court Fee, if any as per rules. iv. Decree be drawn up and sealed expeditiously. (ARIF S. DOCTOR, J) After the order was pronounced, learned Counsel for the Defendant submitted a copy of order dated 19th January, 2023, by which, an order of admission has been passed under Section 7 of the Insolvency and Bankruptcy Code, 2016 against the Defendant. The same is noted. In view of this order all Interim Applications stand disposed of.