Delhi District Court
Sh. Anurag Aggarwal vs The New India Assurance Company Ltd on 25 October, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 01
TIS HAZARI COURTS, DELHI.
C.S. No. 45/2011
Unique ID no. 02401C0355892006
1. Sh. Anurag Aggarwal
S/o Sh. R. P. Aggarwal.
2. Mrs. Neeti Aggarwal,
W/o Sh. Vijay Aggarwal,
Both R/o M85,Greater Kailash PartII,
New Delhi. ....Plaintiff
Versus
The New India Assurance Company Ltd.
Through
a) The ChairmancumManaging Director,
Registered Head Office at:
New India Assurance Building,
87, Mahatma Gandhi Road,
Fort Mumbai400 401.
b) The Assistant General Manager,
Delhi Regional OfficeI,
Level 5, TowerII,
Jeewan Bharti Building,
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 1 of 59
C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd.
C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd.
2
124, Connaught Circus, New Delhi.
c) The Divisional Manager,
M66, First Floor (Market),
Greater Kailash PartI,
New Delhi. ....Defendants
C.S. No. 46/2011
Unique ID no. 02401C0355872006
Sh. R. P. Aggarwal.
S/O Shri Krishna Aggarwal
R/o M85,Greater Kailash PartII,
New Delhi. ....Plaintiff
Versus
The New India Assurance Company Ltd.
Through
a) The ChairmancumManaging Director,
Registered Head Office at:
New India Assurance Building,
87, Mahatma Gandhi Road,
Fort Mumbai400 401.
b) The Assistant General Manager,
Delhi Regional OfficeI,
Level 5, TowerII,
Jeewan Bharti Building,
124, Connaught Circus, New Delhi.
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 2 of 59
C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd.
C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd.
3
c) The Divisional Manager,
M66, First Floor (Market),
Greater Kailash PartI,
New Delhi. ....Defendants
C.S. No. 51/2012
Unique ID no. 02401C0051422010
Sh. V. K. Saxena
S/o Sh. P. B. L. Saxena,
R/O 613, First Floor,
Greater Kailash Part II,
New Delhi. ....Plaintiff
Versus
The New India Assurance Company Ltd.
Through
a) The ChairmancumManaging Director,
Registered Head Office at:
New India Assurance Building,
87, Mahatma Gandhi Road,
Fort Mumbai400 401.
b) The Assistant General Manager,
Delhi Regional OfficeI,
Level 5, TowerII,
Jeewan Bharti Building,
124, Connaught Circus, New Delhi.
c) The Divisional Manager,
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 3 of 59
C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd.
C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd.
4
M66, First Floor (Market),
Greater Kailash PartI,
New Delhi.
....Defendants
Date of institution of the suit(s) : 28.04.2006
Reserved for judgment on : 09.10.2012
Date of pronouncement of judgment : 25.10.2012
Suits for recovery of possession, arrears of
rent, mesne profits and injunction etc.
JUDGMENT: These are three suits pertaining to the different portions of the same property which have been leased out to the same defendant by different plaintiffs. Earlier only two suits viz. CS 45/2011 (Anurag Aggarwal & Another vs. The New India Assurance Co. Ltd.) and CS 46/2011 (R. P. Aggarwal vs. The New India Assurance Co. Ltd.) were pending before this Court and while recording the evidence of DW2 in CS 45/2011 the Court directed the two suits to be consolidated. Subsequently, vide order dated 13.04.2012 in TP (C) 07/2012, the Ld. District & Sessions Judge, has been pleased to transfer the civil suit titled (V. K. Saxena vs. The New India Assurance Co. Ltd.) to this C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 4 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 5 Court which has been registered as CS 51/2012 in this Court. In view of the same property but different portions, same defendant, similar cause of action, same type of evidence/documents involved in the suits and the parties having addressed common arguments as well as common issues of law and fact being involved, the suits are being disposed of by a common judgment.
2. The suits of the respective plaintiff(s) are founded on the following bundle of facts constituting their cause of action:
(i). The different plaintiffs are the owners plaintiffs are the joint owners of various portion of M66, Greater Kailash PartI (Mkt) New Delhi as under:
(a). The second floor rear portion comprising approximately 619 sq ft. area on the second floor with one bath room is owned by Shri Anurag Aggarwal and Smt. Neeti Aggarwal;
(b). The first floor front portion comprising approximately 981 sq ft. area on the first floor attached bath room is owned by Shri R. P. Aggarwal;
(c). The first floor rear potion comprising approximately C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 5 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd.
C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 6
657 sq ft. area on the first floor is owned by Shri V. K. Saxena.
(these premises shall hereinafter be referred to as the suit property).
(ii). The respective plaintiffs had le out the suit property to the defendant namely The New India Assurance Company Ltd.
(iii). Earlier some legal proceedings started between the plaintiffs and the defendant company for recovery of possession and mesne profits, which ended in a compromise. In the said compromise the rent was revised and a fresh Lease Deed dated 29.01.1998 had been executed between the plaintiffs and the defendant in respect of the said premises wherein the defendant agreed to pay the revised rent @ Rs.24,141/(premises of Shri Anurag Aggarwal and Smt. Neeti Aggarwal); 38,259/ (premises of Shri R. P. Aggarwal) and 25,263/(premises of Shri V. K. Saxena) respectively per month exclusive of electricity and water bills and minor repairs but inclusive of the house tax and other taxes (whether municipal or otherwise); the ground rent and other outgoings etc. in respect of the suit C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 6 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 7
property. The rent was payable in advance on or before the 07th day of each calendar month. The said fresh Lease was executed and registered between the parties on 29.01.1998 for a period of three years. It was to expire on 30.11.2000. The said lease also had a renewal clause vide no. 4(ii) of the said Lease Deed which reads as under: "4(ii): If the Lessee shall be desirous of renewing the term hereby agreed on the expiration thereof and of its such desire shall give to the Lessor at least three months notice in writing in that behalf before the expiry of the term hereby agreed then the lessor shall at the cost of the lessee and the lessor in equal share and upon the expiry of the Lease Deed on 30.11.2000 fresh Lease Deed shall be executed between the parties on mutually agreed terms. The said Lease Deed shall be duly signed, executed and registered as per requirement of law"
(iv). On the expiry of the above said lease period as per the C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 7 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd.
C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 8
clause 4(ii) of the said lease, the plaintiffs drew the attention of the defendant to the above said clause. A letter no. 310600/97/OPG/Estate dated 12.11.1997 had been issued by Sh. O. P. Gupta, the then Senior Divisional Manager. As the defendant continued to use and occupy the said premises after the expiry of the lease on 30.11.2000, the plaintiffs invited the attention of the defendant to the above said letter and also requested the defendant to get the lease renewed in respect of the above said property with an increase/revision of 10% in the existing rent w.e.f. 01.12.2000 and accordingly a fresh Lease Deed was required to be executed and registered for the subsequent period from 01.12.2000 to 30.11.2003 with 10% increase and thereafter 15% increase up to 30.11.2006.
(v). The respective plaintiffs had been insisting for renewal and registration of the lease w.e.f. 01.12.2000 to 30.11.2003 and addressed several letters to the defendant but on each and every occasion the plaintiffs were assured that the lease will be renewed and fresh lease will be executed and registered, the increase/revision shall be allowed and paid w.e.f. 01.12.2000 C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 8 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 9
onwards @ 10% increase on the last paid rent. However the defendant failed to honour its commitment and delayed the renewal and registration of a fresh lease deed. Even the payment of the rent was also made on the old rates till date, which was accepted by the plaintiffs under protest.
(vi). On the representations of the plaintiffs with regard to the renewal of the lease and the difference in the payment of the rent, the Regional Office of the defendant in the presence of the plaintiffs sent a Note to the Divisional Office vide letter dated 16.05.2001 and the main terms of the said Note/letter are detailed as under:
a) To renew the lease deed for a period of three years term i.e. w.e.f. 01.12.2000 to 30.11.2003 @ Rs. 42.90 per sq. ft.
b) To incorporate renewal clause for 2 terms by granting 15% increase on the rent least paid in each term.
c) Registration expenses of the lease to be born 50% by the owner and 50% of New India C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 9 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 10
Assurance Company Ltd.
d) Other terms and conditions of the lease remain unchanged.
(vii). The Divisional Manager of the defendant sent a letter dated 22.06.2001 along with the draft of the lease deed to be registered between the parties. The plaintiffs approved the same and signed the said draft of the lease on 27.08.2001. Despite the approval of the said draft the officials of the defendant company failed to get the lease deed registered with the SubRegistrar. Not only this, the payment of rent was not made on the basis of the increase. The plaintiffs then addressed several letters. Vide letter dated 06.10.2003 they again invited the attention of the Divisional Manager about the renewal of the lease deed w.e.f. 01.12.2000 to 30.11.2003 with the increase of 10% as agreed earlier. The plaintiffs also requested the Divisional Manager of the defendant to get the lease prepared for the period 01.12.2003 to 30.11.2006 with the additional increase of 15% w.e.f. 01.12.2003 and cited his letters to that effect. The plaintiffs also drawn the attention of the Divisional Manager of C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 10 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 11
the defendant to the fact that he had handed over the signed copy of the draft of the lease on 27.08.2011, but during that period Mr. V. K. Trehan who was the then Divisional Manager left and Sh. Rakesh Aggarwal took over the charge of the defendant. Nothing was done. Neither the increase @ 10% in the last paid rent was made/paid w.e.f. 01.12.2000 nor the subsequent increase @ 15% as agreed was made/paid. The plaintiffs thus have been suffering at the hands of the defendant and because of the commitment and good relations earlier the plaintiff had not terminated the tenancy in respect of the said premises.
(viii). Ultimately the plaintiffs were compelled under the circumstances to serve a legal notice dated 24.08.2005 on the defendants through Registered AD cover which was duly served upon the defendants, whereby the plaintiffs terminated the tenancy of the defendant w.e.f. the expiry of 30.09.2005 i.e. on the day when the tenancy month of the defendant came to an end thereby affording 15 clear days notice as provided u/s 106 of the Transfer of Property Act and the defendant was called C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 11 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 12
upon to vacate and quit the premises and hand over its vacant possession on the expiry of 30.09.2005 and also to pay the sum of Rs. 1,94,382/ (the difference in the payment of rent on account of the increase of 10% for the period from 01.12.2000 to 30.11.2003 i.e. Rs. 86,904/ and w.e.f. 01.12.2003 to 31.08.2005 at the subsequent revision of 15% i.e. Rs. 1,07,478/ which was agreed to between the parties and as provided in the letter dated 16.05.2001 of the Regional Manager addressed to the Divisional Manager of the defendant. The said notice was duly served on the defendants, but the defendants failed to comply with the said notice.
(ix). The defendant through its officers invited the plaintiff for discussions in the matter of execution of the fresh lease as was agreed earlier and also for the payment of the amount due on account of the difference due to the agreed increase of 10% and 15% respectively, in the month of October, 2005 but failed to reach any conclusion. As such the plaintiff was compelled to send another notice dated 28.09.2005 to the defendant which was also duly served on the defendant. The officials of the C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 12 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 13
defendant again started discussion in the matter with the plaintiff and finally in the last week of November, 2005 a meeting took place in the presence of the Legal Advisor of the defendants and the revision of rent as agreed in the aforesaid letter dated 16.05.2001 was accepted and the draft of the new lease deed along with the total arrears of rent w.e.f. 01.12.200 till date was incorporated in the proposal to be sent to the company's head office and a new clause was substituted for termination of tenancy to one month from three months at the instance of the Divisional Manager as he was in the look out for a new premises. The plaintiff agreed to the said clause but did not agree to the renewal of the lease up to 2009, hence the officials referred the matter to the head office of the defendant company.
(x). Subsequently, a letter in regard to the decision on the issue of payment of arrears and the execution of the New Lease Deed was issued to the plaintiff by the Regional Manager vide letter dated 21.02.2006 stating therein that the matter with regard to renewal of lease as well as payment of arrears of rent C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 13 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 14
was already referred to the Head Office for consideration and approval. However, the plaintiff ultimately had been compelled to issue a notice dated 08.03.2006 to the defendants where the defendants were called upon to vacate the premises and clear the outstanding dues along with the interest at the rate of Rs. 5500/. The plaintiff in the said notice also claimed the damages for unauthorized use and occupation of the said premises since after 30.09.2005 till date at the rate of Rs.150/ per sq. ft. per month, but the defendants have failed to comply with the said notice and are occupying the premise illegally and unauthorizedly and their possession is that of a trespasser and they are liable to pay the damages for unauthorized use and occupation thereof at the said rate of Rs.1,47,150/ per month till the vacant and peaceful possession is delivered by them. Subsequently the Divisional Manager issued another letter to the plaintiff, Sh. Anurag Aggarwal and Sh. V. K. Saxena, dated 10.03.2006 and repeating almost the same language was used in the earlier letter issued by the Regional Manager and assuring the plaintiff that the decision will be conveyed to him very C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 14 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 15
soon in that regard.
(xii). The defendants have now also threatened the plaintiff to make unauthorized and illegal structural changes, additions, alternations and new constructions in the said premises, without the written consent, knowledge and permission of the plaintiff. The threatened action of the defendant in this respect is illegal, malafide, unwarranted by law and against the provisions of the principles of natural justice. The defendants have no right to take the law in their own hands.
(xiii). The defendants are in the illegal and unauthorized occupation of the suit property since 01.10.2005 and their possession is that of the trespasser and they are liable to pay the damages for unauthorized use and occupation. The plaintiff therefore, claims the following reliefs in the present suit against the defendants:
1. Relief of possession of the suit premise.
2. Recovery of arrears of rent (difference) for the period from 01.12.2000 till 30.09.2005.
3. Recovery of arrears of damages (difference) for C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 15 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 16
the period from 01.10.2005 to 30.03.2006.
4. Recovery of future damages for unauthorized use and occupation of the premises till the possession is handed over to the plaintiff.
5. Relief of Injunction thereby restraining the defendants from making any additions, alternations or any structural changes in the premises.
3. Notice of the respective suits had been served upon the defendant who put a contest to the suit by filing its written statement. it challenged the suit on the following preliminary objections:
i) The suit is bad in law for nonjoinder and misjoinder of necessary parties. The defendant, New India Asurance Co. Ltd. through ChairmancumManaging Directors and the Assistant General Manager and the Divisional Manager of the New India Assurance Co. Ltd. have been wrongly impleaded. The lease deed is between the plaintiff on one hand and the New India Assurance Co. Ltd. on the other hand.
ii) The defendants are the lawful lessee and are in authorized use C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 16 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 17
and occupation of the suit premises. The lease of the defendant, New India Assurance Co. Ltd, has not been validly terminated as per the provisions of law. The defendant, New India Assurance Co. Ltd, submits that the notice of the plaintiff against the defendants New India Assurance Co. Ltd. dated 24.08.2005, 28.09.2005 & 08.03.2006 are addressed to chairman cum managing directors and the Assistant General Manger and the Divisional Manager of the New India Assurance Co. Ltd. and are bad in law and are liable to be ignored. Even otherwise, the said notices stand waived by the subsequent conduct of the plaintiff by issuance of the subsequent fresh notices by plaintiff. The tenancy of the defendants as such has not been validly terminated and is subsisting, till date.
iii) The plaintiffs have accepted and encashed the cheques tendered by the defendants New India Assurance Co. Ltd. towards lease rent. As such by the acceptance of lease rent after the termination of lease by the plaintiff, the tenancy of the defendants New India Assurance Co. Ltd. have not been legally C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 17 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 18
terminated. Since the lease rentals have been accepted by the plaintiff, the lease of the premises has not been terminated validly and legally and thus, there is no cause of action in favour of the plaintiff and against the defendants for filing the instant suit. The suit of the plaintiff being premature is liable to be rejected under Order 7 Rule 11 CPC either for the relief of recovery of possession or for the relief of mesne profits and arrears of rent.
iv) The negotiations were held between the plaintiff and the defendants New India Assurance Co. Ltd. for renewal of lease of the suit property. As the demand of the plaintiff was highly excessive and unnatural, so the same was rejected by the defendant, New India Assurance Co. Ltd, even while negotiations and after the notice for the termination of the tenancy and after the filing of the present suit till date the plaintiff are regularly being paid rent as per the lease deed by the defendants New India Assurance Co. Ltd. who have accepted and encashed the same. Thus, there has never been any valid termination of the lease agreement between the C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 18 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 19
parties.
v) The plaintiffs have wrongly stated and claimed that the defendants are liable to pay the damages for unauthorized use and occupation of the suit premises since after 30.09.2005 till the possession is handed over to the plaintiffs. Similarly the plaintiffs have wrongly stated and claimed that he is entitled to the relief of recovery of possession of the suit property which is not maintainable under the law. In the similar vein the plaintiffs have wrongly stated and claimed in the plaint that he entitled to the recovery of arrears of rent (difference) for the period 01.12.2000 till 30.09.2005. All these are not maintainable under law. Further the claim for the recovery of arrears of rent (difference) for the period 01.12.2000 till 30.09.2005 is beyond the period of limitation i.e. three years and therefore time barred.
vi) The plaintiffs have wrongly stated and claimed that they are entitled to recovery of future damages for unauthorized use and occupation of the suit premises till the possession is handed over to the plaintiff. The plaintiff has wrongly stated and C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 19 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 20
claimed in the plant that he is entitled to the relief of injunction thereby restraining the defendants from making any addition, alternations or structural changes in the premises. These are not maintainable under the law.
4. On merits, the defendant denied the material averments on which the respective plaintiffs have founded their cause of action in above terms and also generally and accordingly prayed for the dismissal of the suit.
5. The respective plaintiffs have filed the replication to the written statement of the defendant in which they have denied the material averments of the written statement and reiterated the averments of the plaint.
6. With the available pleadings the following issues have been framed vide the minutes of proceedings dated 14.02.2007 in the suit nos. 45/2011 and 46/2011:
1. Whether the present suit is bad for mis joinder and non joinder of necessary parties? OPD
2. Whether the tenancy of plaintiff has been validly terminated? OPP C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 20 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 21
3. Whether the present suit is premature and liable to be rejected U/o 7 Rule 11 CPC? OPD
4. Whether the present suit is barred by law of limitation? OPD
5. Whether the plaintiff is entitled to the relief claimed? OPP
6. Relief.
7. The following issues have been frame in the suit no. 51/2012 vide the minutes of proceedings dated 19.09.2006:
1. Whether the suit is bad for nonjoinder and misjoinder of necessary parties? OPD
2. Whether the plaintiff validly terminated the lease deed? OPD
3. Whether the plaintiff is entitled to recovery of possession of the suit property? OPP
4. To what amount is plaintiff entitled to recover from the defendant? OPP
5. Whether the plaintiff is entitled to the decree of injunction as prayed for? OPP C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 21 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 22
6. Relief.
8. In the suit no. 45/2011 the plaintiff, Anurag Aggarwal has examined himself in PE as PW1. PW2 is Shri Sanjay Rawat, UDC from the office of the SubRegistrar V, Delhi. The defendant has examined Shri J. B. S. Kohli, its Divisional Manager as DW1; DW2 is Shri Ravi Trehan, UDC from the office of the SubRegistrar V, Delhi; Shri V. Venkatesh is the Chief General Manager of Central Bank of India, Greater Kailash Branch, New Delhi is DW3; DW4 is Shri Mahesh Kumar Grover, Chief Manager of Central Bank of India, Greater Kailash Part I, New Delhi and DW5 is Shri Rakesh Kumar Monga.
9. In suit no. 46/2011 the plaintiff, Shri R. P. Aggarwal, has examined himself as PW1. The defendant has examined Shri J. B. S. Kohli, its Divisional Manager as DW1; DW2 is Shri Ravi Trehan, UDC from the office of the SubRegistrar V, Delhi. Shri V. Venkatesh who is the Chief General Manager of Central Bank of India, Greater Kailash Branch, New Delhi is DW3; DW4 is Shri Mahesh Kumar Grover, Chief Manager of Central Bank of India, Greater Kailash Part I, New Delhi.
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 22 of 59C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 23
10. In suit no. 51/2012 PW1 is Shri Sher Singh UDC from the office of the SubRegistrar V, Delhi. PW2 is Shri V. K. Saxena, the plaintiff. The defendant has examined Shri J. B. S. Kohli, its Divisional Manager as DW1 as its sole witness.
11. Common final arguments have been addressed in all the cases. The arguments have been advanced by Shri I. D. Tyagi, Ld. Counsel for the plaintiff and Shri Salil Paul, Ld. Counsel for the defendant. While addressing the arguments Ld. Counsel for the parties have copiously referred to the pleadings, evidence and documents.
12. Briefly, it has been argued by the Ld. Counsel for the plaintiffs that the plaintiffs have been able to establish their case on all the counts and are entitled to the relief claimed. It is submitted that the correspondence exchanged between the parties duly show that there has no renewal of the lease deed after 30.11.2000. The lease has been duly terminated after giving due notice. It is also established on record that the rent has been accepted without prejudice. Thus there is no withdrawal of notice either by issuing further notice or by acceptance or rent. The defendant cannot enjoy the premises without paying the rent and when notice has been issued the acceptance of future rent is C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 23 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 24 only to be adjusted towards the mesne profits as determined by the Court. It is prayed that the suit be decreed.
13. No case law has been cited by the ld. counsel for the plaintiff.
14. Per contra, Ld. Counsel for the defendant has refuted the arguments of the plaintiffs. Briefly stated, it is submitted that the notice got waived by issuing the subsequent notices and acceptance of rent, therefore the case of the plaintiffs has no legs to stand upon. The claim of the plaintiffs as to the arrears of rent is also time barred. The defendant is the old tenant and has been occupying the property legally and is not liable to be evicted. The suit property constitutes different portions and the respective portions are not paripassu and therefore cannot be given the same treatment. In fact there has been a considerable decline in the rentals and the plaintiffs kept on accepting the rent only for the said reason without any demur and now they want to take advantage of their own wrongs. The defendant prayed for the dismissal of the suit of the plaintiffs.
15. Ld. Counsel for defendant has relief upon following citations:
i) Dr. J. Bhakthavasala Rao and others Vs. Industrial Engineers, Nellore and others, AIR C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 24 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 25
2005 Andhra Pradesh 438. (Determination of mesne profits is purely a question of fact and there exists no uniform and standard pattern of assessment).
ii) R.V. Bhupal Pershad Vs. State of A.P, 1995 Rajdhani Law Reporter (SC) 569. (If on the expiry of lease period, tenant continues in possession with the consent of the landlord, he is a tenant HOLDING OVER. But if he continues in possession without consent (or after termination of tenancy) then he is a tenant AT SUFFERANCE.)
iii) Manakarani Hazra and others Vs. Mohinder Singh Jaggi and another, AIR 1968 Orissa 13 (Notice under section 106 of TPA is mandatory in law and the onus is on the landlord to prove it.)
iv) Rasiklal M. Mehta and another Vs. The Hindustan Photo Films Manufacturing Co.
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 25 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 26
Ltd., AIR 1976 Madras 194. (Lease of term exceeding one year containing renewal clause.
Renewal can be made only be registered instrument.)
v) Satish Chand Makhan and others Vs. Govardhan Das Byas and others AIR 1984 SC
143. (Unregistered lease deed cannot be looked into.)
16. I have considered the common submissions rendered in all the cases. I have also considered the pleadings, evidence and the material on record of all the cases. I have also considered the case law cited by ld. counsel for defendant. My findings on the various issues are as under: Issue no. 1: Whether the present suit is bad for misjoinder and non joinder of necessary parties? OPD
17. This issue has been framed on the objection of the defendant that the suit is bad in law for nonjoinder and misjoinder of necessary parties.
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 26 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 27
18. First a look at the objection as to the misjoinder. In the plaint the defendant is shown as "The New India Assurance Co. Ltd." and it has been sued through (i). The ChairmancumManaging Director;
(ii). The Assistant General Manager; and (iii). The Divisional Manager. The defendant has argued that the impleadment of the ChairmancumManaging Director; the Assistant General Manager and the Divisional Manager of the New India Assurance Co. Ltd. is wrong. It has further been submitted by the defendant that the fact of the matter is that the lease deed is between the plaintiff on one hand and the New India Assurance Co. Ltd. on the other hand, thus the array of parties shows the parties wrongly placed. The plaintiff has denied any misjoinder.
19. The defendant "The New India Assurance Co. Ltd." is a body corporate--a creature of law. As such it is capable to sue and being sued in its own name. It being a body corporate i.e. a juristic entity has to perform its necessary functions through a human agency as a body corporate has no living existence but only because the law recognizes it as body. The plaintiff has not impleaded the Chairmancum Managing Director; the Assistant General Manager and the Divisional C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 27 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 28 Manager of the New India Assurance Co. Ltd. as parties in the suit, but the defendant "The New India Assurance Co. Ltd." has been sued through these designated persons. These persons are not the parties in their personal capacity or in their own right. They are only to represent the defendant "The New India Assurance Co. Ltd.".
20. Ostensibly, the defendant has been sued through the said person by the plaintiff in order to meet or ward off any possible objection regarding due service of the process or representation of defendant etc. It is not the case of the plaintiff that he seeks some relief, order of judgment against these said persons as party to the suit. Thus the objection of misjoinder as pressed into service by the plaintiff is without any merits.
21. Now considering the objection of nonjoinder. In so many words it has not been stated by the defendant which particular party had to be joined, whom the Court necessarily ought to have heard in the matter and whose nonjoinder would lead to the miscarriage of justice.
22. A necessary party is one whose presence must be necessary before the Court, to bind it by the judgment or to give it the right of C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 28 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 29 audience. The defendant has itself stated that the lease deed is between the plaintiff on one hand and the New India Assurance Co. Ltd. on the other hand. The subject matter of the suit is the renewal/execution of lease deed or vice versa and the matters ancillary and incidental thereto. Thus apparently no third party is to be joined in the suit, except the parties already before the Court. The plea of nonjoinder as taken by the defendant has no legs to stand.
23. Thus the objection as taken by the defendant, on which the instant issue has been framed, is an art for art's sake objection. As such this issue is answered against the defendant. Issue no. 3: Whether the present suit is premature and liable to be rejected U/o 7 Rule 11 CPC? OPD
24. The rejection of suit is a jurisdiction which can be exercised by the Court suo motu without any application of the adversary. The jurisdiction for exercising the same comes to play when one or any of the grounds listed in Order 7 Rule 11 CPC is attracted.
25. While testing a plaint on the touchstone of Order 7 Rule 11(a) of the Code of Civil Procedure, the following considerations are C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 29 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 30 axiomatic:
i) The plaint alone has to be seen.
ii) The averments made in the plaint have to be taken as correct and at the face value as they are germane. At the stage of considering an application U/O 7 rule 11 CPC the court cannot venture into an enquiry into the truth or falsity of the averments made in plaint because that is the subject matter of trial.
iii) The plaint must be read as a whole.
iv) The plaint must be read in a meaningful manner to find the real intent behind the suit.
v) The documents filed along with the plaint can also be looked into.
vi) The rival averments or defense(s) made in the written statement are immaterial for this limited inquiry.
26. The plea for rejection as taken by the defendant is the suit being premature. Thus on the face of it the objection is as to the cause of action.
27. The phrase 'cause of action' is the right to sue. It is a bundle of facts on which the plaintiff claims a right and denial of the same by C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 30 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 31 the adversary. In other words it is the legal right of one person and corresponding legal obligation of the adversary. A cause of action is thus a bundle of facts and it constitutes those bare and necessary facts which the propounder must establish in order to succeed in his claim, even in the cases which are undefended. Thus 'cause of action' is a phrase which means a cluster or bunch of facts and circumstances wherein a right is claimed by the propounder; a corresponding legal obligation is claimed against the adversary; a violation/denial of right is alleged and the aggrieved party approaches the Court for vindication of the right claimed.
28. These are suits for ejectment and claim of damages for use and occupation. What is to be proved necessarily in a case of ejectment has been laid in Sunila Wadhawan vs. Silver Smith India Ltd. {CM (M) No. 1042 of 2008 decided on 26.03. 2010} by the Hon'ble High Court of Delhi as under: "Para 8: This Court and the Supreme Court have time and again emphasized that the Courts must do meaningful reading of the pleadings and the grain has to be sifted from chaff. Today in pleadings many irrelevant and unnecessary things are stated C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 31 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 32
which have no legal basis. The Courts must be able to sift the material part of the pleadings necessary for disposal of an application. It is not the duty of the Courts to simply reproduce the pleadings of the two parties in its order, and without analyzing the facts, in last paragraph write that in his/ her opinion, no ground in the application was not made. The trial Court in this case had done the same thing. She did give a list of judgments referred but unfortunately she had not bothered to refer to the relevant judgments and see their applicability. In such an application, the Court has to look into only three facts; (i) whether the relationship of landlord and tenant is admitted; (ii) whether the lease has been terminated by serving a notice or not; and (iii) and whether the rent was above Rs. 3,500/ or not. The Court must keep in mind that Section 116 of Evidence Act creates and estoppel against the tenant from challenging the ownership of the landlord/ landlady. Where the relationship of landlord and tenant is admitted, the averments challenging ownership of the landlord are not to be looked into."
29. Thus, in the suit of the plaintiff, it is the obligation of the plaintiff to establish the existence of following:
(i). The relationship of landlord and tenant; C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 32 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 33
(ii). Determination of lease by serving a notice;
(iii). Whether the rent was above Rs. 3,500/ or not else the bar of jurisdiction under section 50 of the Delhi Rent Control Act may be attracted.
(iv). The claim of damages for use and occupation is incidental to the claim of ejectement. If the defendant has been proved to be in unauthorized possession, then as a logical corollary, he shall be liable for restitution so that the plaintiff is adequately compensated for the damages suffered by him.
30. The plaintiffs have averred the facts akin to the above in their respective plaints. These factual aspects have been disputed by the defendant. The dispute by the adversary does not imply that the plaint does not disclose a cause of action. For determining whether a cause of action is disclosed or not, only the averments of the plaint have to be seen and taken at the face value. The opposition of the various factual aspects by the defendant, only raise an issue(s) but cannot be taken to mean that no cause of action is disclosed. Whether the plaintiff is ultimately able to establish his case or not is a different matter altogether.
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 33 of 59C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 34
31. Thus to opine whether the suit has been instituted prematurely is virtually to venture into an inquiry into the defence(s) put forty by the defendant and this aspect cannot be determined merely on the plain reading of the plaint. Thus the jurisdiction under Order 7 Rule 11 CPC is not attracted in the facts and circumstances of the case.
32. Thus the plaint taken as it is, does disclose a cause of action and cannot be stated to be premature merely on bare reading of the plaint and thus no case of rejection within the meaning of Order 7 Rule 11 CPC is made out. However the aspect as to the suit being premature or otherwise would be considered while considering other issues on merits of the case.
33. Hence the finding on this issue is returned against the defendants and in favour of the plaintiff.
Issue no. 4: Whether the present suit is barred by law of limitation?
34. The defendant has taken the objection that the plaintiffs have wrongly stated and claimed in the plaint that they are entitled to the recovery of arrears of rent (difference) for the period 01.12.2000 till C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 34 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 35 30.09.2005. All these are not maintainable under law. Further the claim for the recovery of arrears of rent (difference) for the period 01.12.2000 till 30.09.2005 is beyond the period of limitation i.e. three years and therefore time barred.
35. The respective suits have been instituted on 28.04.2006.
36. The limitation for recovery of differences for the arrears of rent is three years from the date the same becomes dues. Hence the arrears can be claimed by the plaintiff for three years preceding the date of institution of suit. Any claim made before the said period is beyond limitation.
37. This issue is answered in favour of the defendant in the above terms.
Issue no. 2: Whether the tenancy of plaintiff has been validly terminated? Or Whether the plaintiff validly terminated the lease deed?
38. The Transfer of Property Act has defined the mode and manner in which the lease has to be terminated. Section 106 of the Transfer of Property Act reads as under: C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 35 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 36
"106. Duration of certain leases in absence of writ ten contract or local usage. -- In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expir ing with the end of a year of the tenancy; and a lease of immoveable property for any other pur pose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered per sonally to such party or to one of his family or ser vants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
39. The language of above provision is very clear. If there is a con tract or local law or usage its terms as to the termination of a lease shall prevail. If this is not so, then the provisions of law as laid above shall prevail.
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 36 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 37
40. Admittedly in these cases there has been no renewal of tenancy after 30.11.2000. A draft lease had been prepared but not executed. Thus the tenancy stood terminated due to efflux of time. Of course, the process was on for the renewal of lease but it is admitted fact that parties could not arrive at a consensus and no further lease deed could be executed despite the preparation of a draft lease deed. In Satish Chand Makhan & Others vs Govardhan Das Byas & Others AIR 1984 SC 143 it has been held, "We have no doubt in our mind that the defendants were tenants holding over under Section 116 of the Transfer of Property Act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month : Mulla's Transfer of Property Act, 5th Edn., p. 762..."
41. The first notice in suit 45/2011 is dated 24.08.2005 as Ex. PW2/1. It called upon the defendant to hand over the tenanted portion on the expiry of 30th September 2005. The next notice is dated C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 37 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 38 28.09.2005 which is Ex. PW2/2. It calls upon the defendant upon similar terms. The next notice is EX. PW2/3 which is dated 08.03.2006. In para 9 of the same again a notice of 15 days is given. The quit notices in other case are in similar terms and pari passu.
42. In Bhagabandas Agarwalla v. Bagwandass Kann & Ors., AIR 1977 S.C. 1120 it has been held that a notice to quit ought not to be construed with a view to find fault with it, but with a view to its validity.
43. Now it is to be seen if the acceptance of rent by the plaintiff amounts to waiver of notice. During the course of cross examination PW1, Shri Anurag Aggarwal, in CS 45/2011 has been suggested he continued to accept the old rent tendered by the defendants which were accepted without prejudice and the witness has admitted the same. This suggestion by the defendant itself speaks that the defendant believes in the fact that the acceptance of rent by the plaintiff had been without prejudice. Similar suggestion has been given to the witness PW1 Shri R. P. Aggarwal in CS 46/2011 ("It is correct that I have been accepting rent at the old rate from the defendant under protest C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 38 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 39 and without prejudice to my right"). The suggestion and answer to the witness PW2 Shri V. K. Saxena in CS 51/2012 is also in the same boat ("It is correct that after expiry of the lease period on 31.11.2000 we were accepting the cheques at the old rate being offered by the defendant but we kept on telling them about renewal of the lease deed and enhancement of rent which was 10% for the first three years and for subsequent two terms increase by 15% of the last paid rent"). These suggestions speak volums about the stand taken by the defendant itself that the acceptance of rent at the old rate was without prejudice.
44. In this regard the judgment in Food Corporation of India vs. Sarvshri Bal Karan Singh & Ors. 186 (2012) DLT 97 clinches the issue as under: "So far as the first argument on behalf of the ap pellant is concerned, the same is no longer res in tegra in as much as it has been held by the Supreme Court in the case of Sarup Singh Gupta Vs. Jagdish Singh & Ors., 128(2006)DLT 534(SC)II (2006)CLT 16(SC)III (2006)SLT 148=2006(4) SCC 205, that is a landlord after ter mination of tenancy, accepts the rent, merely by C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 39 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 40
acceptance of rent a new tenancy does not come into existence, and the landlord is in fact entitled to a appropriate the amounts received towards charges for use and occupation. To the same ef fect are the observations of the Supreme Court in the case of Shanti Prasad Devi Vs. Shankar Maha to, V(2005) SLT 198III (2005) CLT 1SCC 543, I therefore reject this argument on behalf of the ap pellants."
45. The present issue is therefore seized by the above judgment and the notice of termination of tenancy is held to be valid.
46. Therefore this issue is answered in favour of the plaintiff. Issue no. 5. Whether the plaintiff is entitled to the relief claimed? & Whether the plaintiff is entitled to recovery of possession of the suit property? & To what amount is plaintiff entitled to recover from the defendant? & Whether the plaintiff is entitled to the decree of injunction as prayed for?
47. In the cross examination of PW1 Shri R. P. Aggarwal, (in 46/2011) his ownership is being disputed by the defendant. The law is well settled that under section 116 of the Evidence Act, 1872 a tenant is stopped from disputing the ownership of the landlord or lessor. C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 40 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 41
48. In CS 46/2011 PW1 is the plaintiff himself. His oral evidence is contained in his affidavit by way of examination in chief. He has tendered various documents in his evidence. Ex. PW 1/1 is site plan; Ex. PW 1/ 3 is letter dated 22.06.2001 written by defendant, Ex. PW 1/ 4 is Lease Deed dated 27.08.2001, Ex. PW 1/5 and Ex. PW 1/ 6 are the letters written by plaintiff, Ex. PW 1/18 is the true copy of the Rent Agreement, Ex. PW 1/10 is letter dated 21.02.2006, Ex. PW 1/12 to Ex. PW 1/14 are AD receipts, Ex. PW 1/15 is postal AD.
49. In his examination in chief the witness PW1 has deposed in terms of his plaint. The witness has been cross examined.
50. In the cross examination by the defendant the witness has admitted the suggestion that the lease was not renewed after the expiry of the first lease and that the renewal was on mutual terms.
51. A suggestion has been given by defendant to PW1 and to appreciate its true import it is reproduced verbatim as under: "It is correct that after expiry of the lease we continued to accept the old rent tendered by the defendants which were accepted without prejudice"
C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 41 of 59
C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd.42
52. As noticed above similar suggestions have been given to the witness PW1 Shri R. P. Aggarwal in CS 46/2011. The suggestion and answer to the witness PW2 Shri V. K. Saxena in CS 51/2012 is also in the same boat.
53. PW1 was also suggested that the defendant replied to its no tices. Thus the notices, the exhibition of which was objected to by the defendant, stand proved by necessary implication. Even otherwise the exhibition or marking is only a nomenclature and not a symbol of proof as held in Sudhir Engineering Company vs. Nitco Roadways Ltd. 1995 (34) DRJ 86. The fact of the matter is that as held above the tenancy has come to an end by efflux of time and it was a month to month tenancy which was further determined by the respective plain tiffs by a notice, which otherwise was also not required as there was no subsisting lease between the parties.
54. Though the tenancy had been duly terminated by the respective plaintiffs vide their separate notices dated 24.08.2005 and for all prac tical purposes the notice dated 08.03.2006 was superfluous. It only re iterated the previous notice and granted time of 15 days to vacate the premises. The tenancy of the defendant stood determined on C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 42 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 43 30.09.2005 and non vacation of the suit property by the defendant made its possession unauthorized, which was in fact a month to month tenancy since the nonrenewal of lease on its expiry on 30.11.2000.
55. PWs, the plaintiffs in respective cases have denied the sugges tion that the rents have decreased substantially after 2000.
56. PW2 is Shri Sanjay Rawat, UDC in the Office of the Sub Regis trar. He has tendered two documents Ex. PW2/1 and Ex. PW2/2. His testimony has not been impuged in cross examination.
57. DW1 is Shri Shri J. B. S. Kohli, defendant's Divisional Manager. He has tendered a letter dated 10.03.2008 as Ex. D1 showing the defendant is paying monthly rent of Rs. 66671 for an area of 2319 sq. ft. His deposition is regarding the tenancy, termination being not legal, acceptance of rent, mesne profits etc. While recording the evidence of this witness the Court observed another suit titled R. P. Aggarwal vs. New India Assurance Co. Ltd. be clubbed with this suit and the defendant's evidence which has been recorded therein be also read as evidence in this suit. The witness in his cross examination admitted the suggestion that the plaintiff had been accepting the rent C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 43 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 44 under protest but he volunteered to state that the protest has been lodged off late. He denied the suggestion that the rent of the similarly situated properties is about Rs. 250/ per sq. ft.
58. DW2 is Shri Ravi Trehan, UDC from the office of the Sub Registrar V, Delhi who has tendered a Lease Deed as Ex. DW2/1. The testimony of this witness has not been impugned by the plaintiff.
59. Shri V. Venkatesh is the Chief General Manager of Central Bank of India, Greater Kailash Branch, New Delhi who has deposed as DW3. He has been summoned to prove the lease deed of a premises at M(HS) 67, Main Market, Greater Kailash, Part 1, New Delhi. In his cross examination he stated that new lease deed has already been executed with revision of rent payable in the year 2009. DW4 is Shri Mahesh Kumar Grover, Chief Manager of Central Bank of India, Greater Kailash Part I, New Delhi and he has brought the original lease deed dated 30.07.2009 in respect of M67, Main Market, Greater Kailash, Part 1, New Delhi. He came to depose in continuation of the DW3 who was directed to bring the original lease deed. He was cross examined as to the location of the suit property and some benefits granted to the landlord of the premises M67, Main Market, Greater C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 44 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 45 Kailash, Part 1, New Delhi at some concessional rent. The witness DW5 is Shri Rakesh Kumar Monga. He has deposed regarding the certified copy of Lease Deed as Ex. DW2/1. These witnesses have appeared in other connected cases viz. CS 46/2011 and CS 51/2012 and deposed in similar terms.
60. When it has established on record that the possession of the defendant is unauthorized in the suit property, the moot question is whether the respective plaintiffs are entitled to any damages/mesne profits and if so for what period and at which rate.
61. In terms of the section 2 (12) of the Code of Civil Procedure "mesne profits" of property mean those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made but the person in wrongful possession.
62. Thus the essential ingredients of mesne profits are:
(i). The person must be in the wrongful possession of property; and
(ii). He must actually have received or might with ordinary C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 45 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 46
diligence have received there from such profits; but
(iii). Such profits shall not include profits due to improvements made by the person in wrongful possession.
63. Parties have led their respective evidences on this aspect. It is the settle position of law that mesne profits cannot be determined with scientific precision, mathematical exactitude or golden scale accuracy. There are hosts of factors involved which influence the rental. Thus a fair estimate can be made on the basis of some inquiry. No trial or evidence is envisaged on this aspect. The Court can take judicial notice of contemporary economic milieu and the relevant factors. The exercise aims at balancing the rights and obligations of parties so that no one is put into such a position as to get some undue advantage or enrich itself at the expense of the other party.
64. The plaintiffs in their evidence have tried to project the mesne profits @ Rs. 200250 per sq. ft. On the other hand the stand of the defendants is that the rentals have come down substantially and the plaintiffs are not entitled for any damages.
65. Ex. PW2/1 is a lease deed in respect of property no. M53, M C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 46 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 47 Block Market, Greater Kailash Part 1, New Delhi in which an area measuring 800 sq. ft. on the ground floor has been let out on 01.06.2006 at a rent of Rs. 4,00,000/ per month. The rent comes to Rs. 500/ per square ft. However it is to be kept in mind that this property is situated on the ground floor and its commercial letting value visàvis the property situated on the first of other floors is quite high, which is a factor which can be judicially noticed by the Court.
66. Ex. PW2/2 is the lease of a property which is a shop at M53, M Block Market, Greater Kailash Part 1, New Delhi110048 measuring 800 sq. ft. let out on 01.04.2006 at a monthly rent of Rs. 1,25,000/ which makes it Rs. 156.25 per sq. ft. Though this property is in the same premises as the above property it has fetched lesser rent though let out during the near contemporary period of the year 2006. This may be due to some locational or other ancillary reasons.
67. Ex. DW4/A is a lease deed of property consisting of the ground floor, mezzanine floor, first floor and the second floor of M67, Main Market, Greater Kailash Part 1, New Delhi110048 executed on 30.07.2009 in which the ground floor measuring 1024 sq. ft has been let out @ Rs. 75/ per sq. ft; mezzanine floor measuring 150 sq. ft has C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 47 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 48 been let out @ Rs. 60/ per sq. ft; first floor measuring 920 sq. ft has been let out @ Rs. 70/ per sq. ft; and the second floor measuring about 225 sq. ft has been let out @ Rs. 65/ per sq. ft. to Central Bank of India. However, in this case also there is no convincing evidence that the suit property was similarly situated as the above property. The properties may differ on account of various reasons which is exhibited by the fact that the respective properties vide lease deeds Ex. PW2/1 and Ex. PW2/1 though having the same municipal number fetched quite different rates of rent.
68. With such disparity in rate of rents, in my view the issue of mesne profits can be clinched by considering the following facts and circumstances as illustrative though they are not exhaustive in themselves:
(i). The parties held discussion and principally arrived at a consensus to increase the rent @ 10% for the block period of 01.12.2000 to 30.11.2003 and thereafter @ 15% for the block 01.12.2003 to 30.11.2006 and @ 15% for the further respective blocks of 15%.
(ii). Had the defendant got any alternative property at lesser C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 48 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 49
rate of rent it would have vacated the suit property and shifted elsewhere as a prudent person in similar circumstances would have done.
(iii). The defendant has proved only one lease deed. As the adage goes, 'one sparrow does not make the spring' this weighs heavily against the defendant.
(iv). Delhi Rent Control Act, 1956, which is a protective legislation for the tenants allows an increase of rent by 10% every three years.
(v). There has been increase in inflation for the last many years and this has been statutorily recognized under the Income Tax Act and the indexed cost has seen rise since 20002001 onwards. During these years there has been no decline in inflation. The courts can take judicial notice of inflation.
(vi). Two properties can never be same, though they may be similarly placed.
(vii). Though the portions in there suits are situated differently but they have been valued at the same rate of Rs. 39/ per sq. ft. for the purpose of payment of rent till 30.11.2000 there is no C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 49 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 50
intelligible differentia to treat them differently at this stage.
69. In this case the suit property is situated in Greater Kailash which is a prime locality in New Delhi with growing market and Shopping Centres. The space is scarce and available at a premium. It is close to the important places like East of Kailash, Nehru Place and various important business centres. It is a posh and elite area of Delhi and mostly inhabited by person in high income bracket. There is scarcity of accommodation in this area and the rental space is always at a premium. The defendants have been put to a notice and their withholding of the accommodation/suit property despite the notice is only at their own risk and peril. For the last about two decades the inflation is rising, the cost of construction and acquiring property is going up and there is scarcity of properties available for rental thus it is a landlord's market.
70. Under the above facts and circumstances, it would be appropriate and in the interest of justice if the following formula for determination of mesne profits is adopted:
(i). For the period 01.12.2000 to 30.11.2003 the rental increase e @ 10% is reasonable therefore the rent for this period C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 50 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 51
shall be (39+3.91=42.91 per sq. ft). This is only for the rate purpose as the damages are payable for 3 years immediately preceding the institution of the suit.
(ii). For the period 01.12.2003 to 30.11.2006 increase @ 15% is reasonable therefore the rent for this period shall be (42.91+6.44=Rs. 49.35 per sq. ft). This is only for the rate purpose as the damages are payable for 3 years immediately preceding the institution of the suit.
(iii). For the period 01.12.2006 the rent shall increase @ 10% per annum every year over the preceding year's rent as the defendant wrongfully continued to withhold the suit property despite put to a notice.
71. As the suits have been instituted on 28.04.2006 the respective plaintiffs shall be entitled to the mesne profits only w.e.f. 01.05.2003.
72. When the respective plaintiffs have been held entitled to damages for the past, the payment must be adjusted as to be meaningful visàvis the contemporary period to give the real value of money. Courts can take judicial notice of factum of inflation. Inflation take a toll of the money thus reducing its worth. With the passage of C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 51 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 52 time and with inflation the purchasing power of money decreases. Thus defendant's liability to pay interest to the plaintiff is a logical corollary.
73. If the interest is not awarded to the plaintiff it would be giving the defendant a premium for their wrongs and omissions. It would operate against the doctrine of restitution.
74. It is the sacrosanct duty of the Court to balance the rights of the parties and while considering rate of interest a pragmatic approach is the raison d'etre. The rate of interest must be commensurate with the contemporary economic milieu. The concept of 'opportunity cost' i.e. the cost of next best alternative as prevalent in economics can be used as a handy tool. What the money is other wise capable of earning in the other alternative investment avenues is a fairly good yardstick. Other important factor to be kept in mind is that interest awarded should not be too high so as to become punitive for defendant and should not be too low so as to create a vested benefit for the defendant by delaying the payment to the plaintiff and arbitrage by earning higher interest by deploying his money other havens. C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 52 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 53
75. In my view, taking stock of the rate of interest offered by the banks, Prime Lending Rates prevalent in the banking industry and also considering the element of risk involved when the payment is struck up for a long time that too with a private party and other attendant trade risks, simple interest @ 10% per annum, pendetalite and future, appears to be just and proper in the facts and circumstances of the case.
76. This issue is answered in the above terms.
Relief
77. In view of the findings on the above issues, the suits of the various plaintiffs are decreed as under: SUIT NO. 45/2011
(i). A decree for possession is passed in suit no. 45/2011 in favour of the plaintiffs and against the defendant thereby directing the defendant its directors, officers, employees, assigns, administrators etc. to handover and deliver the actual, physical, vacant and peaceful possession of the suit property viz. the second floor rear portion comprising approximately 619 sq ft. area on the second floor with bath C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 53 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 54 room in M66, Greater Kailash PartI (Mkt) New Delhi to the plaintiffs Shri Anurag Aggarwal and Smt. Neeti Aggarwal, as shown in red in the site plan.
(ii). The damages for use and occupation charges/mesne profits shall be payable at the hereinafter mentioned rates by and on behalf of the defendant to the plaintiffs viz. from 01.05.2003 to 30.11.2003 @ Rs. 42.91 per sq. ft ; Rs. 49.35 per sq. ft per month; from 01.12.2003 to 30.11.2006 @ Rs. Rs. 49.35 per sq. ft per month per month; from 01.12.2006 to 30.11.2007 @ Rs.54.29 per square ft. per month; from 01.12.2007 to 30.11.2008 @ Rs.59.71 per square ft. per month; from 01.12.2008 to 30.11.2009 @ Rs.65.68 per square ft. per month; from 01.12.2009 to 30.11.2010 @ Rs.72.25 per square ft. per month; from 01.12.2010 to 30.11.2011 @ Rs.79.48 per square ft. per month; from 01.12.2011 to 30.11.2012 @ Rs.87.43 per square ft. per month and subsequently the above pattern will follow till the date of handing over the vacant possession of the suit property by the defendant to the plaintiffs. The plaintiff shall adjust any amount paid towards rent/damages on behalf of the defendant during the above said period from the total rent, damages/use and occupation charges awarded. C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 54 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 55
(iii). The plaintiff is also awarded interest @10% per annum on the above mesne profits/damages for use and occupation. The interest shall be calculated for various payments of use and occupation charges/mesne profits from the date of each amount becoming due respectively till the realization of the amount.
(iv). Cost of the suit is also awarded in favour of the plaintiff and against the defendant.
SUIT NO. 46/2011
(i). A decree for possession is passed in suit no. 46/2011 in favour of the plaintiff and against the defendant thereby directing the defendant its directors, officers, employees, assigns, administrators etc. to handover and deliver the actual, physical, vacant and peaceful possession of the suit property viz. first floor front portion comprising approximately 981 sq ft. area on the first floor attached bath room in M66, Greater Kailash PartI (Mkt) New Delhi to the plaintiff Shri R. P. Aggarawl, as shown in red in the site plan.
(ii). The damages for use and occupation charges/mesne profits shall be payable at the hereinafter mentioned rates by and on behalf of the defendant to the plaintiffs viz. from 01.05.2003 to 30.11.2003 @ Rs. C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 55 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 56 42.91 per sq. ft ; Rs. 49.35 per sq. ft per month; from 01.12.2003 to 30.11.2006 @ Rs. Rs. 49.35 per sq. ft per month per month; from 01.12.2006 to 30.11.2007 @ Rs.54.29 per square ft. per month; from 01.12.2007 to 30.11.2008 @ Rs.59.71 per square ft. per month; from 01.12.2008 to 30.11.2009 @ Rs.65.68 per square ft. per month; from 01.12.2009 to 30.11.2010 @ Rs.72.25 per square ft. per month; from 01.12.2010 to 30.11.2011 @ Rs.79.48 per square ft. per month; from 01.12.2011 to 30.11.2012 @ Rs.87.43 per square ft. per month and subsequently the above pattern will follow till the date of handing over the vacant possession of the suit property by the defendant to the plaintiffs. The plaintiff shall adjust any amount paid towards rent/damages on behalf of the defendant during the above said period from the total rent, damages/use and occupation charges awarded.
(iii). The plaintiff is also awarded interest @10% per annum on the above mesne profits/damages for use and occupation. The interest shall be calculated for various payments of use and occupation charges/mesne profits from the date of each amount becoming due respectively till the realization of the amount.
(iv). Cost of the suit is also awarded in favour of the plaintiff and C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 56 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 57 against the defendant.
SUIT NO. 51/2012
(i). A decree for possession is passed in suit no. 51/2012 in favour of the plaintiff and against the defendant thereby directing the defendant its directors, officers, employees, assigns, administrators etc. to handover and deliver the actual, physical, vacant and peaceful possession of the suit property viz. first floor rear potion comprising approximately 657 sq ft. area on the first floor in M66, Greater Kailash PartI (Mkt) New Delhi to the plaintiff Shri V. K. Saxena as shown in red in the site plan.
(ii). The damages for use and occupation charges/mesne profits shall be payable at the hereinafter mentioned rates by and on behalf of the defendant to the plaintiffs viz. from 01.05.2003 to 30.11.2003 @ Rs. 42.91 per sq. ft ; Rs. 49.35 per sq. ft per month; from 01.12.2003 to 30.11.2006 @ Rs. Rs. 49.35 per sq. ft per month per month; from 01.12.2006 to 30.11.2007 @ Rs.54.29 per square ft. per month; from 01.12.2007 to 30.11.2008 @ Rs.59.71 per square ft. per month; from 01.12.2008 to 30.11.2009 @ Rs.65.68 per square ft. per month; from 01.12.2009 to 30.11.2010 @ Rs.72.25 per square ft. per month; from C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 57 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 58 01.12.2010 to 30.11.2011 @ Rs.79.48 per square ft. per month; from 01.12.2011 to 30.11.2012 @ Rs.87.43 per square ft. per month and subsequently the above pattern will follow till the date of handing over the vacant possession of the suit property by the defendant to the plaintiff. The plaintiff shall adjust any amount paid towards rent/damages on behalf of the defendant during the above said period from the total rent, damages/use and occupation charges awarded.
(iii). The plaintiff is also awarded interest @10% per annum on the above mesne profits/damages for use and occupation. The interest shall be calculated for various payments of use and occupation charges/mesne profits from the date of each amount becoming due respectively till the realization of the amount.
(iv). Cost of the suit is also awarded in favour of the plaintiff and against the defendant.
78. The respective plaintiffs shall be liable to pay the Court Fee on the consolidated value of the damages awarded in above terms as well as the interest which has accrued till the date of decree. The plaintiffs are directed to pay the deficient Court fee separately in each suit within 30 days from today and thereafter the requisite decree shall be C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 58 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd. 59 drawn accordingly.
79. This judgment, duly signed, shall be placed in each file individually.
80. Respective files, after necessary compliance be consigned to the Records Room.
Announced in the Open Court On this 25th day of October 2012 (MAN MOHAN SHARMA) ADJ (Central)01, Delhi C.S. 45/2011 Anurag Aggarwal & Anr. Vs. New India Assu. Page 59 of 59 C.S. 46/2011 R. P. Aggarwal Vs. The New India Assurance Co. Ltd. C.S. 51/2012 V. K. Saxena Vs. The New India Assurance Co. Ltd.