Delhi District Court
Pgf Limited vs Uco Bank (Forming Known As United on 4 March, 2014
1
IN THE COURT OF SH. NAVEEN K. KASHYAP,
COMMERCIAL CIVIL JUDGE-CUM ADDITIONAL RENT
CONTROLLER, WEST DISTRICT, TIS HAZARI COURTS
COMPLEX , DELHI.
CS No: 43/2011
PGF LIMITED, A PUBLIC LIMITED COMPANY,
having its registered office at SCO
1042-43, Sector- 22-B, Chandigarh
and its head office at second floor,
Vaishali Building, Paschim Vihar,
New Delhi
through Sh. K.L. Bhatia,
One of its authorised officer .....Plaintiff
Versus
1. UCO BANK (forming known as United
Commercial Bank) at B-6, Shopping
Centre, Tagore Garden, New Delhi.
2. UCO BANK (formerly known as United
Commercial Bank) 10, BTM, Sarani
Barabura Road, Calcutta- 7001. .....Defendants
Date of Institution: 07.02.2011
Date on which judgment was reserved: Not reserved
Date of pronouncing judgment: 04.03.2014
SUIT FOR POSSESSION AND DAMAGES
J U D G M E N T
1. The plaintiff has filed the present suit seeking recovery of possession of property consisting of basement and ground floor in property Suit No. 43/2011 2 bearing no. B-6, Shopping Centre, Tagore Garden, New Delhi shown in red colour in the site plan filed with the plaint (hereinafter referred to as "the suit property"). In addition, the plaintiff has also prayed for recovery of rent along with interest thereon at the rate of 15% p.a. amounting to Rs. 18,313/- along with further interest @ 15% p.a. from the date of filing of suit till its realization. Further, the plaintiff has also prayed for recovery of damages of Rs. 1,93,320/- for the pre-suit period, along with interest @ 15% p.a. from the date of filing of suit till its realization. Further, the plaintiff also prayed that he be awarded damages/mesne profit from the date of filing of the suit till the date of decree and further from the date of decree till its realization along with interest @ 15% p.a.
2. In short, it is stated by the plaintiff that it is a public limited company duly registered with the registrar of companies, Punjab under the Indian Company Act. It is further stated that Sh. K.L. Bhatia is one of the authorised officer of the plaintiff company who has been duly authorised vide resolution dated dated 07.05.2007 of the plaintiff company. It is further stated that such Sh. K.L. Bhatia is well conversant with the facts of the present case. It is further stated that plaintiff company is the owner/landlord of the suit premises. It is further stated that defendant no. 2 is the head office of defendant no. 1 bank. It is further stated that the covered area of the ground floor under the tenancy of the defendant is 867 sq. ft. and that of basement is 930 sq. ft. It is further stated that tenancy of the defendant is monthly tenancy starting from 1st of Each English Calender month. It is further Suit No. 43/2011 3 claimed that the monthly rent at the time of filing of present suit was Rs. 3,660.25 per month besides Rs. 150/- on account of water charges. It is further stated that defendant did not pay the rent for the period from 1st June 2010 to 30th August 2010 despite service of notice of demand. As such, earlier the plaintiff company filed a suit for recovery of rent and water charges along with interest for a total sum of Rs. 11,432.84/- before the Civil Judge Sh. Rakesh Kumar, Delhi which was pending at the time of filing the present suit. It is further stated that the defendants have also failed to pay the further rent w.e.f. 1st September 2010 despite service of notice of demand dated 03.01.2011 and as such, defendants are in arrears of rent and water charges from 1st September 2010 till the date of termination of tenancy of the defendant. It is further stated that plaintiff because of such reason and even otherwise terminated the tenancy of the defendants vide notice dated 03.01.2011, which was duly served upon the defendants. It is further claimed that despite service of such notice, the defendants had failed to vacant and hand over peaceful possession of the suit property. As such, the plaintiff company further claimed the mesne profits/damages/compensation from the defendant bank for illegally and unathorisedly enjoying the possession of the suit property and the same is claimed at the rate of 300 pr. sq. ft. in respect of ground floor and Rs. 250/- in respect of basement. It is further stated by the plaintiff that such mesne profit/damages for the period from 26.01.2011 to 31.01.2011 at such rate comes to Rs. 95,380/-. Beside this, defendants are also liable to pay water charges for such period of Rs. 30/-.
Suit No. 43/2011 43. After institution of the suit, summons were served upon the defendant bank. The defendant filed written statement. The defendant, inter- alia, raised the preliminary objection that the present suit is barred U/Sec. 50 of Delhi Rent Control Act and as such this court has no jurisdiction to entertain the present civil suit. Further, it is claimed by the defendants that present rate of rent is only Rs. 3327/- per month. It is further claimed that an oral tenancy tenancy was created in the year 2006 for eight years and as per such tenancy, the defendant was supposed to pay rent @ Rs. 3327/- per month only for eight years and as such the same could not be increased by the plaintiff company. It is further claimed that defendant no. 1 is paying the rent accordingly regularly. It is further stated that the defendant no. 1 tendered the rent personally and by money order but the same has been refused by the plaintiff company to create false ground of eviction. Further, they denied the rate of rent @ 3,660.25 per month. Further, the defendants denied the averments of the plaintiff that anything is due on account of arrears of rent or damages or mense profit. It is further claimed that despite request made, plaintiff failed to execute fresh lease deed.
4. The plaintiff filed replication. He reiterated the averments made in the plaint and denied the pleas taken by the defendant in the written statement.
5. After completion of pleadings, the following issues were framed by the Court by order dated 19.11.2011 by my Ld. Predecessor:
1. Whether the plaintiff is entitled to recover the Suit No. 43/2011 5 possession from the defendant ? OPP.
2. Whether the plaintiff is entitled for the recovery of arrears of rent including the water charges along with interest? OPP.
3. Whether the plaintiff is entitled for damages along with interest, if so, at what rate and from which date ? OPD.
4. Whether this court has jurisdiction to try this case U/Sec. 50 of D.R.C. Act ?OPD
5.Relief.
6. The plaintiff led evidence in support of its case. The plaintiff company examined its authorised representative Sh. K.L. Bhatia as PW-1. He tendered his affidavit Ex. PW1/A in evidence. In his affidavit, he reiterated the averments made in the plaint. He identified the following documents :
a. Copy of certificate incorporation Ex. PW1/1 (original seen and returned); b. Copy of Board Resolution dt. 07.05.2007 as Ex. PW1/2 (original seen and returned);
c. Site plan of suit property as Ex. PW-1/3; d. Certified copy of notice dated 07.05.2010 for increase in rent by 10% as per the provision of Delhi Rent control Act along with proof of service through UPC and registered AD as well as returned AD cards as Ex. PW1/4 to PW-1/9 ;
e. Certified copy of letter dated 19.07.2010 and 11.08.2010 along with AD cards is Ex. PW1/10 to PW-1/17, vide which the plaintiff refused to accept Suit No. 43/2011 6 the old rent sent by defendants and returned the same. f. Copy of notice of termination of tenancy dated 03.01.2011 along with original proof of service through UPC and registered AD as well as returned AD cards as Ex. PW1/18 to PW-1/25 ;
7. PW1 was cross-examined on behalf of the plaintiff and was discharged.
Further, the plaintiff company examined Sh. Divya Juneja, Dy. Manager, Kotek Mahindra Bank regarding market rate of rent in the area of suit property. He deposed that their bank Kotek Mahindra bank is paying rent of Rs. 20,000/- per month w.e.f. October 2010 regarding an area of 82 sq. ft. This witness was also cross examined at length by Ld. Counsel for defendant.
Thereafter, Plaintiff's evidence was closed.
8. The defendant adduced evidence in support of his evidence. He examined its Senior Manager Sh. Gopal Arora as the only witness in support of their defence as DW1 and tendered in evidence his affidavit Ex. DW1/A. In his affidavit, he reiterated the averments made in the written statement. In his evidence by way of affidavit sworn before Oath Commissioner in which in para no. 3, he deposed that he is relying on original of pay order as DW-1/1 (Colly.), but from perusal of the record it appears that no such original pay orders were filed but only photocopy of the same were filed. Such pay orders are sought to be filed on record to show that the rate of rent was Rs. 3327/- only and water charges Rs. 150/- per Suit No. 43/2011 7 month. It is deposed by this witness that although they tendered such rent @ Rs. 3327/- but the plaintiff refused to accept the same.
DW1 was cross examined and discharged. Defence evidence was closed thereafter.
9. Final arguments in detail are already heard. Record is perused.
10. The issue-wise findings are as under:
ISSUE No. 4:
Whether this court has jurisdiction to try this case U/Sec. 50 of D.R.C. Act ?OPD
11. Onus of proof of this issue is on the defendant bank. In this case, the relationship of landlord and tenant is not disputed by the parties. The dispute is what is the rate of rent i.e. whether it is below or more than Rs. 3,500/- per month, at the time of institution of present suit. It is not in dispute that earlier, the rent was atleast Rs.3,327/- per month . But it was stated by the tenant/defendant that as per the oral arrangement between the parties, such rent was fixed for a period of eight years starting from the year 2006. It is pertinent to note that as such rate of rent of Rs. 3,327/- was admitted by the defendant since 2006, therefore, it was for them to prove that the same was fixed for a period of eight years and that plaintiff can not increase the same for such eight years. But on a bare perusal of evidence by way of affidavit of DW-1, who is the only witness of the defendant, it is clear that they failed to place on record any document in this regard. Further, it is the Suit No. 43/2011 8 mandate of law that if in lease/rent agreement is for eight years, then the same has to be registered and stamp duty has to be paid on the same, but no such registered rent deed is placed on record by the tenant. The onus of proof this issue was on the defendant/tenant to prove that the present suit is barred U/Sec. 50 of D.R.C. Act. But, they failed to lead any evidence in this regard and they only claimed that there was an oral agreement between the parties for a period of eight years. Although, the fact of oral agreement is not denied by the landlord/plaintiff but it is denied by the landlord that the same was for a period of eight years. Therefore, also it was necessary for the defendant to prove that the same was for a period of eight years.
12. Further, PW-1 specifically deposed that the plaintiff company sent a legal notice dated 07.05.2010, Ex. PW-1/4 regarding increase of earlier rent of Rs. 3327.50 by 10% as per the provision of Delhi Rent Control Act. Further, the PW-1 placed on record the proof of dispatching such notice along with returned AD card Ex. PW-1/5 to PW-1/9. It is pertinent to mention that in their W.S., the defendants did not reply at all about such assertion of the plaintiff. No defence ,including of non service or otherwise of such notice dated 07.05.2010, Ex. PW-1/4 is taken at all by the defendant side. Further, no question or suggestion was put to the PW-1 by the defendant in in his cross examination on this aspect.
13. In this background court is required to decide whether such notice dated 07/05/2010 Ex OW-1/4 for enhancement of rent by 10% as per DRC Act was served upon the respondent or not, as it is the service of this notice Suit No. 43/2011 9 that gives rise to cause of action for filling of the present petition before Civil court.
14. The petitioner had sent such legal notice Ex. PW-1/4 through registered post vide postal receipt Ex. PW-1/5 and 6 and by vide UPC Ex. PW-1/7. The postal receipt is dated 14/05/2010 & 07/05/2010 and the UPC is dated 11/05/2010. Further, the AD card regarding both the defendants is also received back with defendants bank stamp EX PW-1/8 and 9.
15. Further it is pertinent to note in this regard that the address of both the defendant as mentioned in such legal notice and in the plaint is the same and the same is never disputed by the defendants. Thus such legal notice was sent on the correct address of the defendants.
At this stage, it is to be noted that there is a presumption of service as per Section 114 of Evidence Act and Section 27 of General Clauses Act as the Legal Notice EX PW-1/4 was sent through registered post and UPC. In K. Bhaskaran v. Sankaran Vaidhyan Balan, (SC) [1999 A.I.R. (SC) 3762 , 1999(7) S.C.C. 510]; it was observed by Honorable Apex Court that the principle incorporated in Section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. It was further observed that when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause Suit No. 43/2011 10
(d) to the proviso of Section 138 of the Act. The said judgment was relied upon by Full Bench of Honorable Apex Court in C.C. Alavi Haji v. Palapetty Muhammed, (SC) [ 2007(6) S.C.C. 555] and it was observed that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. The ratio of such judgment can equally be applied for present purpose also.
Thus, even if it is taken that sign and stamp on such notice Ex.PW1/4 was not actually endorsed by the employee of the defendant bank ,still service of notice stands proved as per Section 114 of Evidence Act and Section 27 of General Clauses Act as the same was sent through registered post and UPC.
16. Thus, the court is of the opinion that notice Ex PW-1/4 regarding increase in rate of rent by 10% from Rs. 3,327/- to Rs. 3,660.25/- was duly served upon the defendant. Therefore, it is proved that the rate of rent stood increased to Rs. 3660.25 per month, in terms of the provision of Delhi Rent Control Act.
17. Still Ld. counsel for defendant has argued that the suit property is governed by Delhi Rent Control Act. But this court find no force in this contention in view of above mentioned finding of facts.
18. Further, the defendant has not placed on record or Suit No. 43/2011 11 proven the notification to hold that the operation of Delhi Rent Control Act has been extended to the area in which the suit property is located.
19. As per Section 3(c) of the Delhi Rent Control Act, a lease having agreed rate of rent of more than Rs. 3500/ per month is not covered by the Delhi Rent Control Act.
It has been held in the case of D.C. Bhatia vs. Union of India(1994) 7 JT (SC) 114, followed by Hon'ble High Court of Delhi in the case of Deenar Builders Pvt. Ltd.vs. M/s. Khoday Distilleries Ltd. AIR 2000 Delhi 147, that for the purpose of ascertaining applicability of the Rent Control Act, it is the rate of rent on the date of institution of the suit which is relevant. The said rate of rent has been proved by the plaintiff as Rs. 3,660.25/ per month. Therefore the suit property is not covered by the Delhi Rent Control Act.
20. Consequently, the provision of Delhi Rent Control Act ceased to apply to the suit property after notice dated 07.05.2010, Ex PW-1/4. Therefore, this court concludes that at the time of institution of the present civil suit on 07.02.2011, the provision of D.R.C. Act were not applicable on the suit property. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
ISSUE NO-1:
Whether the plaintiff is entitled to recover the possession Suit No. 43/2011 12 from the defendant ? OPP.
21. The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for recovery of vacant possession of the suit property from the defendant. Recovery of possession has been prayed for on the ground that the plaintiff is landlord and the defendant was tenant in the suit property. The tenancy is stated to have been terminated. In support of this contention, the plaintiff has placed reliance on the testimony of PW1.
22. The plaintiff PW1 has stated in the affidavit Ex. PW1/A that plaintiff company is the owner of the suit property and had inducted the defendant as a tenant therein by a oral agreement at a rent of Rs.
3,327.50/- per month. Thereafter, as already held above, the rate of rent was increased by the plaintiff to Rs.3,660.25/- by notice Ex. PW-1/4 dated 07/05/2010. Further, admittedly, the defendant never paid or tendered rent at increased rate of @3,660.25/- per month. Thereafter, by a subsequent notice dated 03/01/2011, Ex. PW-1/18, the plaintiff terminated the tenancy of the defendant Bank. As such it is claimed by the plaintiff that it has became entitled to recovery of possession of the suit property.
23. That the plaintiff is the owner and the landlord of the suit property has not been disputed by the defendant. Moreover, since the defendant had admitted that he had been inducted as tenant by the plaintiff company itself, it is estopped from questioning the title of the Suit No. 43/2011 13 plaintiff, as laid down in Section 116 of the Evidence Act, 1872.
24. The initial oral tenancy has been admitted by DW1 even in his examination in chief by way of affidavit. As such the defendant has been in possession of the suit property as a lessee.
25. In this background, PW-1 specifically deposed that the plaintiff company sent legal notice dated 03/01/2011, Ex. PW-1/18 for termination of tenancy of the defendant bank regarding the suit property. Further, the PW-1 placed on record the proof of dispatching such notice along with returned AD card Ex. PW-1/19 to PW-1/25. The defendant even denied the receipt of such legal notice EX PW-1/18.
26. In this background court is required to decide whether such legal notice Ex PW-1/18 for terminating the tenancy of defendant bank was served upon the defendant or not , as it is the service of this notice that gives rise to cause of action for filling of the present petition. The petitioner had sent such legal notice Ex. PW-1/18 through registered post vide postal receipt Ex. PW-1/19 and 20 and also by courier EX PW-1/24 and 25 as well as by vide UPC Ex. PW-1/21. Both the postal receipt are dated 04/01/2011 , the courier receipts are dated 06/01/2011 . Further The AD card regarding both the defendants is also received back with defendant bank stamp EX PW-1/24 and 25.
27. Further it is pertinent to note in this regard that the address of both the Suit No. 43/2011 14 defendant as mentioned in such legal notice and in the plaint is the same and the same is never disputed by the defendants. Thus such legal notice was sent on the correct address of the defendants.
At this stage it is to be noted that there is a presumption of service as per Section 114 of Evidence Act and Section 27 of General Clauses Act as the Legal Notice EX PW-1/4 was sent through registered post and UPC. The case law of K. Bhaskaran (supra) and C.C. Alavi Haji (supra) in this regard are already referred above regarding presumption of due service. Thus, even if it is taken that sign and stamp on such notice Ex.PW1/18 was not actually endorsed by the employee of the defendant bank ,still it stands proved as per Section 114 of Evidence Act and Section 27 of General Clauses Act as the same was sent through registered post and UPC.
In fact not even a suggestion is put to the PW-1 by the defendant's counsel that such notice is not received by the defendants.
28. Thus, the court is of the opinion that legal notice Ex PW-1/18 was duly served upon the defendant. Thus this court holds that tenancy of the defendant bank stand terminated vide legal notice Ex. PW-1/18.
29. On termination of the lease, the defendant had no right to occupy the suit property. The plaintiff is entitled to recover possession thereof.
30. There is no document on record nor so claimed by the defendant bank that parties did renew the tenancy in question, orally Suit No. 43/2011 15 or by writing, again after the legal notice EX. PW-1/18, so as to confer a new right in favour of the defendant to continue to occupy the property. The notice Ex. PW-1/18 unequivocally expresses the intention of the plaintiff to receive vacant possession of the suit property and rules out the option of renewal of lease. As such there was no intention to continue the relationship of tenancy, as evident from the notice EX. PW-1/18. Such lease came to an end by service of legal notice dated Ex. PW1/18 dated 03/01/2011. It is already held above that such legal notice was received by the defendant. Such legal notice Ex. PW1/18 calls upon the defendant to vacate the property and deliver possession thereof to the plaintiff. This is a valid termination notice, having regard to the observations of Hon'ble Supreme Court in the case of Bhagabandas Agarwalla Vs. Bhagwandas Kanu & Ors. AIR 1977 SC 1120 . By the notice, tenancy of the defendant, if any, in existence, stood terminated in keeping with Section 111(h) of the Transfer of Property Act, 1882. The defendant therefore became liable to hand over vacant possession of the suit property to the plaintiff. It is not the case of the defendant that any act has been performed by the plaintiff which could indicate assent to continuation of tenancy. In fact the plaintiff landlord even stopped accepting the rent as per the stand of the defendant also. Resultantly, there is nothing on record to suggest waiver of notice to quit under Section 113 of the Transfer of Property Act. Since tenancy stood terminated, the defendant has lost the right to remain in possession of the suit property.
Suit No. 43/2011 1631. Yet, even if it is assumed that tenancy of the defendant did not stand terminated by the aforementioned notice and that it continued to remain in force even thereafter, the lease would yet stand terminated by institution of the present suit which shall be deemed as notice to quit. This has been laid down in the case of M/s. Nopany Investment (P) Ltd. vs. Santokh Singh (HUF), AIR 2008 SC 673. Similar observation has been made by the Hon'ble High Court of Delhi in the case of M/s. Jeevan Diesels & Electricals Ltd. vs. M/s. Jasbir Singh Chadha (HUF) & Anr. RFA No. 179/2011 dated 25.03.2011. Treating the suit as notice of termination of tenancy, the defendant would be liable to vacate the property within fifteen days thereafter, which also has long expired.
32. From the above, it can safely be inferred that the defendant has no right to continue in the suit property and is under an obligation to hand over vacant possession to the plaintiff. This obligation is statutorily recognized by Section 108(q) of the Transfer of Property Act, 1882 and is enforceable by this court.
33. Ld. Counsel for defendant has argued that the plaintiff is not in need of the suit property. He has submitted that the plaintiff has filed the suit only to put pressure on the defendant bank.
This contention of the defendant is without merit. Even if the plaintiff is trying to recover possession in order to sell the Suit No. 43/2011 17 property, there is no legal bar to this. In order to recover property, the plaintiff is only required to establish termination of tenancy. He is not required to establish that he has a bona fide requirement to occupy the property under the provision of Transfer of property Act. Being the owner of the property, he is at liberty to sell it or deal with it in the manner he pleases. It is not open to the defendant to question the motive of the plaintiff nor can the court embark on an enquiry into this. The plaintiff is entitled to receive the property from the defendant on termination of tenancy. This right cannot be defeated by weighing the mutual needs of the parties. It is open to the plaintiff to sell the property to whoever he deems fit. This decision can be based on the price offered by the persons interested or any other factor. The defendant has no right or say in this. The contention of the defendant is rejected.
34. For the aforesaid reasons, the defendant has failed to make out any valid cogent or convincing ground to retain possession of the suit property. The plaintiff is entitled to recovery of possession of the suit property as prayed by him. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.3:
Whether the plaintiff is entitled for damages along with interest, if so, at what rate and from which date ? OPD.Suit No. 43/2011 18
35. As per the issued framed on the 19/11/2011 by my Ld. predecessor, the onus to prove this issue was upon the defendant .But it appears to be a typographical oversight. Having regard to nature of such issue, onus to prove this issue must be upon the plaintiff as it is his prayer. As such same is taken so accordingly. Further no prejudice would be caused nor so agitated by Ld. Counsel for the plaintiff. As such same can be decided on the basis of evidence already on record as it is clear from record that plaintiff even led its evidence by taking that onus was on him.
36. Plaintiff has prayed for :
i) recovery of rent together with interest thereon at the rate of 15% p.a. amounting to Rs.18,313/- for the period from 01/09/2010 to 25/01/2011, along with further interest @ 15% p.a. from the date of filing of suit till its realization.
ii) recovery of damages/mesne profits fixed at Rs.1,93,320/- for the pre-suit period ,along with interest @ 15% p.a. from the date of filing of suit till its realization.
iii) damages/mesne profit from the date of filing of the suit till the date of decree and further from the date of decree till its realization along with interest @ 15% p.a.
37. This court is required to determine whether the defendant shall be called upon to pay charges for use of property, if so, with effect from what date, for what period and at what rate.
In my opinion, the defendant is liable to pay charges for use Suit No. 43/2011 19 and occupation of the suit property. As demonstrated above, the lease of the defendant stood terminated and yet the defendant continued to occupy the suit property. For such occupation, he must pay charges to the plaintiff. Reliance in this behalf is placed on the case of Sanjay Gupta v. M/s Cottage Industries Exposition Ltd.2008 (3) A.D. (Delhi) 623 wherein Hon'ble High Court of Delhi held that in such circumstances, it is obligatory on the tenant to pay charges for his use of the premises after termination of tenancy. It was observed :
"In a landlord tenant dispute where their relationship is admitted, the obligation of the tenant to pay rent for the tenanted premises during the period that the tenant is in occupation of the premises cannot be disputed. Inherent in this admission is embedded an obligation to pay the rent/occupation charges, because the admission of the said relationship excludes a claim based on any other title to the property. The relationship between a landlord and a tenant is one where the tenant agrees to pay the rent/occupation charges in consideration for the right granted to him by the landlord to use and occupy the premises. Therefore, he cannot, while being in use or occupancy of the premises, not pay the rent/occupation charges therefor."
Hence, it is clear that the defendant is required to pay charges to the plaintiff for use of the suit property.
38. The next question which needs to be determined is the date with effect from which the defendant must pay these charges. It has already been demonstrated above that the tenancy in question Suit No. 43/2011 20 had been terminated by legal notice dated 03/01/2011, EX PW-1/18. Further as per the evidence on record ,the tenant/defendant were served by all modes of service by 10/01/2011.Therefore, in any case the tenancy in question stood terminated on expiry of fifteen days from service of legal notice Ex. PW-1/18 i.e. on 25/01/2011. And the defendant is liable to make payment of rent for his use of the property till the said termination and is liable to pay mesne profits/damages for the subsequent period which is from 26/01/2011 in present case.
39. As per evidence on record,the defendant did not tendered or pay the increased rent @ Rs. 3660.25/- w.e.f. 01/09/2010. Thus the defendant is in arrears of rent since 01/09/2010 .Defendant is liable to pay such arrears of rent till 25/01/2011,i.e. till the date of termination of tenancy amounting to Rs. 18,313/-.
40. Further thereafter i.e. from 26/01/2011 till filing of present suit (on 07/02/2011), defendant is liable to pay charges for use of the property.
41. The quantum of the said charges is next required to be ascertained. As held above, the tenancy stood terminated on 25/01/2011 by legal notice EX. PW-1/18. As such for the subsequent period the plaintiff is entitled to recover damages/mesne profits. Mesne profits has been defined by Section 2(12) of Code of Civil Procedure as profits which the wrongful occupant actually received or might have, with ordinary diligence, received. It has been consistently Suit No. 43/2011 21 laid down in a catena of decisions that mesne profits must be awarded on the basis of the market rate of rent. The plaintiff examined its A.R. PW-1 and another witness PW-2, who is Deputy manager of a private sector bank in the same complex in which the suit property is situated. PW-1 deposed that rate market rate of rent in the area is Rs.300 pr. sq. ft. in respect of ground floor and Rs. 250/- in respect of basement. But in his cross examination PW-1 admitted that plaintiff did not file any documentary evidence in support of such rates. Further, PW-2 deposed that their bank M/s Kotek Mahindra bank is paying rent of Rs. 20,000/- per month w.e.f. October 2010 regarding an area of 82 sq. ft.in the same complex and he placed on record the photocopy of its own bank lease deed on record as Mark "A". But in his cross examination , PW-2 admitted that he did not personally collected the data regarding market rate of rent in the area nor he can give detail of the same. In these facts and circumstances , this court find that the plaintiff failed to prove on record any convincing evidence to prove the fair market rent. At the same time it is to be noted that the defendant did not lead any evidence on this issue.
42. As such having regard to the original rate of rent agreed between the parties and general inflationary trends, the market rate of rent can be taken atleast to be the current rate of rent i.e. RS.3660.25/- per month, It is not the case of either party that the bargaining position of either of them was weak or that the rent agreement was unconscionable or one sided initially. As also observed in the case of National Radio And Electronic Co. vs. Motion Pictures Association Suit No. 43/2011 22 122 (2005) DLT 629, the rate of rent agreed upon between them is suggestive of the market rate and the said rate can be treated to be the quantum of mesne profits which the defendant is liable to pay for use of the premises each month. It is held that plaintiff is entitled to recover damages/mesne profits from the defendant at the said rate of RS.3,660.25 from 26/01/2011 till filing of present suit i.e. 07.02.2011 RS. 1,342/-.
43. In terms of Section 34 of Code of Civil Procedure, plaintiff is awarded pendente lite interest on the aforesaid sum at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest at the rate of 6% per annum from the date of decree till realization on such sum of Rs. 18,313/ as well as on 07.02.2011, RS. 1,342/-.
44. During the pendency of the suit i.e. from 07/02/2011 till date, the defendant remained in illegal occupation of the suit property. For such illegal use and occupation of the suit property, the defendant is liable to pay mesne profits/damages to the plaintiff. Mesne profits/damages shall be continued to be paid by the defendant to the plaintiff till vacant possession of the suit property is finally handed over to the plaintiff. It has already been held above that market rate of rent in the facts and circumstances of present case is Rs. 3,660.25/- per month Further, this is less than the sum claimed by the plaintiff in the notice dated 03/01/2011 Ex. PW1/18. As such it is Suit No. 43/2011 23 deemed fit to grant damages/mesne profits at the rate of Rs.3660.25/- per month to be paid by the defendant to the plaintiff with effect from 03.06.2011 till the date of handing over possession.
The issue is decided in favour of the plaintiff and against the defendant.
RELIEF:
45. In the aforesaid facts and circumstances of the case, the suit is decreed in favour of the plaintiff and against the defendant.
A decree of possession is passed in favour of the plaintiff and the defendant is directed to hand over vacant possession of the suit property bearing no. B-6, Shopping Centre, Tagore Garden, New Delhi shown in red colour in the site plan filed with the plaint, EX PW-1/3 to the plaintiff forthwith.
46. A decree for recovery of a sum of Rs.18,313/- is passed in favour of plaintiff and against the defendant on account of arrear of increased rent @ Rs. 3660.25/- w.e.f. 01/09/2010 till 25/01/2011 i.e. till the date of termination of tenancy. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6% per annum from the date of decree till realization.
47. Further decree is passed in favour of plaintiff directing the Suit No. 43/2011 24 defendant to pay to the plaintiff damages/mesne profits at the rate of Rs.3,660.25 per month from 26/01/2011 till filing of present suit i.e. 07.02.2011, RS. 1,342/-.
The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6% per annum from the date of decree till realization.
48. A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff pendente lite mesne profits computed at the rate of Rs. 3,660.25/- per month from the date of institution of the suit till the date of decree.
49. The direction for recovery of pendente lite damages/mesne profits shall be executable only after payment appropriate court fee thereon after setting off the court fee paid on the aforesaid sum by the plaintiff at the time of institution of the plaint.
50. A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff future damages/mesne profits computed at the rate of Rs. 3,660.25/- per month from the date of decree till the date on which vacant possession is handed over by the defendant to the plaintiff.
51. The plaintiff is entitled to recover costs of the suit from Suit No. 43/2011 25 the defendant.
Decree sheet shall be prepared accordingly. Reader is directed to prepare the decree sheet only after adjustment regarding such court fees.
File be consigned to Record Room.
Announced in the open (Naveen K. Kashyap ) court on 04.03.2014. Commercial Civil Judge-cum Additional Rent Controller, West District Delhi.
Suit No. 43/2011 26 S No. 43/2011 04.03.2014 Present: Proxy counsel for the parties. Vide separate judgment of even date, the suit is decreed in favour of the plaintiff and against the defendant. A decree of possession is passed in favour of the plaintiff and the defendant is
directed to hand over vacant possession of the suit property bearing no. B-6, Shopping Centre, Tagore Garden, New Delhi shown in red colour in the site plan filed with the plaint, EX PW-1/3 to the plaintiff forthwith.
A decree for recovery of a sum of Rs.18,313/- is passed in favourof plaintiff and against the defendant on account of
arrear of increased rent @ Rs. 3660.25/- w.e.f. 01/09/2010 till 25/01/2011 i.e. till the date of termination of tenancy. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6% per annum from the date of decree till realization.
Further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff damages/mesne
profits at the rate of Rs. 3,660.25 per month from 26/01/2011 till filing of present suit i.e. 07.02.2011, RS. 1,342/-.
The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest thereon Suit No. 43/2011 27 at the rate of 6% per annum from the date of decree till realization.
A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff pendente lite mesne profits computed at the rate of Rs.3,660.25/- per month from the date of institution of the suit till the date of decree.
The direction for recovery of pendente lite damages/mesne profits shall be executable only after payment appropriate court fee thereon after setting off the court fee paid on the aforesaid sum by the plaintiff at the time of institution of the plaint.
A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff future damages/mesne profits computed at the rate of Rs.3,660.25/- per month from the date of decree till the date on which vacant possession is handed over by the defendant to the plaintiff.
The plaintiff is entitled to recover costs of the suit from the defendant.
Decree sheet shall be prepared accordingly. Reader is directed to prepare the decree sheet only after adjustment regarding such court fees.
File be consigned to Record Room.
(Naveen K. Kashyap) CCJ-Cum-ARC-(W) THC/Delhi-04/03/2014 Suit No. 43/2011