Delhi District Court
M/S Badri Nath Builders Pvt. Ltd vs Punjab & Sind Bank on 28 February, 2018
IN THE COURT OF SH. DEEPAK DABAS:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURT: DELHI
Civ/DJ/609605/2016
M/S BADRI NATH BUILDERS PVT. LTD.
908, Hemkunt House,
6, Rajendra Place,
New Delhi.
Through its Director
Shri Tilak Raj ........Plaintiff
Versus
PUNJAB & SIND BANK
through its Chairman
Manager or any other
Principal Officer
Plot No.8, Block-C,
Community Centre
Janakpuri
New Delhi.
Also At
PUNJAB & SIND BANK
Bank House
21, Rajendra Place,
New Delhi-110008 ......Defendant
Date of institution :- 28.02.2006
Order Reserved On:- 07.02.2018
Date of Decision:- 28.02.2018
M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 1/11
For the Plaintiff:- Sh. F. Hasan, Advocate
For the Defendant:- Sh. Harish Katyal, Advocate
SUIT FOR RECOVERY OF POSSESSION AND MESNE PROFITS
JUDGMENT
A. CASE OF PLAINTIFF
1. Plaintiff has filed the present suit for recovery of possession and mesne profits with respect to property bearing building no.-8, block C, Community Center, Janakpuri, New Delhi(hereinafter referred to as suit property).
2. According to plaintiff, it is a company duly incorporated under Companies Act and it is the owner and landlord of suit property. According to plaintiff, Sh. Tilak Raj is one of its director and has been authorized to sign, file and verify the present suit vide resolution dated 01.07.2001 of the Board of Directors of plaintiff company.
3. According to plaintiff, defendant bank was inducted as a tenant in the suit property i.e. basement, ground floor, mezzanine, first floor, second floor and third floor of suit property comprising 7033.48 sq. feet carpet area vide lease deed dated 01.06.1987 duly executed and registered between the parties w.e.f. 01.08.1986 on a monthly rent of M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 2/11 Rs.26,022.00P.
4. According to plaintiff, the said lease was initially for a period of 5 years with option to the defendant bank to renew the same for a further period of five years twice by increasing rent by 15% at each extension.
5. According to plaintiff, defendant bank exercised the option of extension twice and had increased the rent as agreed. According to plaintiff, the extended period i.e. total period of 15 years expired by efflux time on 01.08.2001 and the last rent paid by the defendant was Rs.34,410/- per month.
6. According to plaintiff, legal notice dated 07.07.2001 was sent to the defendant thereby terminating the tenancy of the defendant w.e.f. 01.08.2001. According to plaintiff, inspite of service of legal notice upon defendant, defendant failed to vacate the suit property and possession of suit property by defendant after termination of the tenancy w.e.f.01.08.2001 is unauthorized. Plaintiff has further claimed that apart from surrendering the possession of suit property defendant is also liable to pay mesne profits to the plaintiff till possession of the suit property is handed over to the plaintiff.
7. Plaintiff has claimed mesne profit @ Rs.25/-per sq. ft. from the defendant as the similar or nearly similar premises in the locality were fetching the said rate in the year 2001. According to plaintiff, the area of M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 3/11 suit premises is 7033.48 sq. ft. hence, the mesne profit per month comes to Rs.1,75,837/-. According to plaintiff, mesne profits @Rs.1,75,837/- per month for the last three years i.e. w.e.f. 01.02.2003 to 31.01.2006 comes to Rs.63,30,132(Rs. Sixty three lacs three thousand and one hundred thirty two only). Plaintiff has claimed the said amount from defendant bank alongwith interest @ 18% p.a. upto the date of actual payment. Plaintiff has also claimed future mesne profits/damages @Rs.2,11,004/- per month.
B. CASE OF DEFENDANT I.E. BANK Defendant in its written statement has taken some preliminary objections. According to defendant, Sh. Tilak Raj is not duly authorized to file present suit and present suit has been filed without complying mandatory requirements under Section 106 of Transfer of Property Act. Defendant has further claimed that suit filed by plaintiff has become infructuous as the defendant bank had already handed over the actual physical possession of suit property to plaintiff on 31.03.2006. Defendant in its written statement accepted that the lease deed was executed for a period of five years with option to extend the lease twice for a period of five years on each occasion. Defendant in its written statement admitted that last rent paid by the defendant to plaintiff with respect to suit property was Rs.34,410/-. Defendant also admitted of having received the legal notice. According to defendant, the said notice was not served upon the defendant to get the defendant evicted from suit property but the said notice was sent for increase in the rent. According M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 4/11 to defendant, even after said notice plaintiff was continuously receiving monthly rent from the defendant bank. According to defendant, the factum of accepting rent shows that plaintiff never intended to evict the defendant from suit property. Defendant has also claimed that non filing of eviction petition in 2001-2006 clearly indicate that the plaintiff never indented to get the premises vacated from defendant. According to defendant, plaintiff was continuously receiving the monthly rent @ Rs.34,410/- from defendant qua the suit property without any protest/objection. Defendant in its written statement has stated that it is not in illegal or unauthorized possession of suit property as the plaintiff continued to accept rent from it. Defendant in its written statement denied the version of plaintiff.
C. REPLICATION Plaintiff has not filed any replication to the written statement of the defendant.
D. ISSUES FRAMED:-
After completion of pleadings, the following issues were framed on 26.07.2007:-
(1) Whether the plaintiff is entitled to any damages? If so, the extent thereof?OPP (2) Whether the plaintiff is entitled to any interest? If so, at what rate, on what amount and for which period?OPP (3)Relief M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 5/11 E. EVIDENCE LED BY PLAINTIFF In support of its case, the plaintiff has examined two witnesses.
PW-1 is Sh. Tilak Raj and PW-2 is Sh. Hukam Singh. PW-1 filed his evidence by way of affidavit i.e. Ex.PW-1/A. PW-1 also relied on documents i.e. Ex.PW-1/1 to Ex.PW-1/7. PW-1 was cross examined at length by Counsel for the defendant. PW-2 had produced photocopy of lease deed dated 01.02.2009 and the same was marked as Mark X. PW-2 was also cross examined by Counsel for the defendant.
F. EVIDENCE LED BY DEFENDANT Defendant has also produced and examined two witnesses in support of its case. DW-1 is Sh. Amrit Lal Sethi i.e. ex-chief manager of defendant bank. DW-1 also filed his evidence by way of affidavit i.e. Ex.DW-1/A and relied upon documents Ex.DW-1/1 to Ex.DW-1/12. DW-1 was cross examined by Counsel for the plaintiff. DW-2 is Sh. Madan Bisht i.e. Employee of Indian Bank Janakpuri, New Delhi. DW-2 produced and relied upon two documents i.e. Ex.DW-2/1 and Ex.DW- 2/2. DW-2/1 and DW-2/2 are copy of lease deed dated 31.01.1997 and 16.05.1985 respectively. DW-2 was also cross examined by Counsel for the plaintiff.
G. I have heard Ld. Counsel(s) for the parties and have perused the record carefully. My findings on the issues are as under:-
ISSUE NO.(1) to (3):-M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 6/11
(1) Whether the plaintiff is entitled to any damages? If so, the extent thereof?OPP (2) Whether the plaintiff is entitled to any interest? If so, at what rate, on what amount and for which period?
OPP (3)Relief The aforesaid three issues are related/ interconnected and hence they are taken up, dealt and decided together.
Onus of proving the aforesaid issues is on plaintiff. Ld. Counsel for plaintiff argued that after termination/expiry of tenancy w.e.f. 01.08.2001, possession of defendant of suit property is illegal and defendant is liable to pay damages at the rate claimed by plaintiff in his plaint. Ld. Counsel further argued that mere acceptance of Rs.34,410/- per month by plaintiff from defendant ipso facto does not mean that tenancy of defendant was extended by plaintiff for five more years.
On the other hand, Counsel for the defendant argued that by accepting Rs.34,410/- per month from defendant, plaintiff extended tenancy of defendant on same terms and conditions and plaintiff is not entitled to any damages. Ld. Counsel for defendant has placed reliance upon following judgments:-
1. Gautam Kapoor and Ors. Vs. Limrose Engineering Works Pvt. Ltd reported as 2006 65 SCL 388 CLB;
2. M/s Riviera Apartments Pvt Ltd. Vs. PNB reported as 2006 (2) M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 7/11 ILR Delhi 283;
3. J.S. Panesar Vs. Santokh Singh reported as 2010 (169) DLT 56 and
4. MTNL Vs. Saiffuddin reported as 2008 (150) DLT 195.
I have carefully gone through the aforesaid judgments. However, facts and circumstances of aforesaid judgments are different from the facts and circumstances of present case and aforesaid judgments are not applicable to the facts of the present case.
It is pertinent to mention that possession of suit property was handed over to plaintiff by defendant on 31.03.2006 i.e. after filing of present suit. It is also admitted case of parties that defendant has paid an amount of Rs.34,410/- per month to plaintiff till 31.03.2006 i.e. till handing over of possession of suit property to plaintiff. Service of legal notice dated 07.07.2001 under Section 106 of Transfer of Property Act upon it by plaintiff is also admitted by defendant. Vide said legal notice, tenancy of defendant was terminated w.e.f. 01.08.2001. Tenancy of defendant also expired on 01.08.2001 by efflux of time.
After the expiry of original period of lease, mere acceptance of rent/amount by plaintiff has no effect of automatically renewing the tenancy of defendant for another five years. Since lease of defendant expired on 01.08.2001, defendant is liable to pay mesne profits/damages to plaintiff at prevalent market rate.
Plaintiff has claimed mesne profits/damages/occupation charges for the period w.e.f. 01.02.2003 till 31.01.2006 @Rs.1,75,837/- per month. Plaintiff has also claimed mesne profits @Rs.2,11,004/- per M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 8/11 month w.e.f. 01.02.2006 till possession of suit property is handed over to it by defendant bank.
In order to prove the rate of damages/mesne profits, plaintiff has examined Sh. Tilak Raj Madan as PW-1 and Sh. Hukum Singh as PW-2. PW-1 has relied upon following documents:-
1. Ex.PW-1/1 is legal notice dated 07.07.2001 vide which tenancy of defendant was terminated w.e.f. 01.08.2001.
2. Ex.PW-1/2 is copy of memorandum of Association and Articles of Association of plaintiff alongwith incorporation Certificate(Colly)
3. Ex.PW-1/3 is Lease Deed vide which plaintiff became owner of suit property
4.Ex.PW-1/4 is resolution dated 01.07.2001 in favour of Sh. Tilak Raj Madan(PW-1)
5.Ex.PW-1/5 is Copy of Lease deed dated 01.06.1997 executed between parties.
6.Ex.PW-1/6 is site plan of suit property.
7.Ex.PW-1/7 is Copy of lease deed dated 09.02.2000 with respect to property bearing no.54, B Block, Community Center, Janakpuri Delhi to show prevalent rate of rent in the locality at relevant time.
PW-2 i.e. Sh. Hukum Singh produced photocopy of lease deed dated 01.02.2009 i.e. Mark X. Mark X is pertaining to property bearing no. 54, B Block, Community Center, Janakpuri, Delhi. In his cross- examination PW-2 admitted that C Block where suit property is situated M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 9/11 is around 1 KM from their bank.
Keeping in view the distance between suit property and the property of PW-2, I am of the considered view that no reliance can be place upon Mark X to decide rate of damages/mesne profits.
Ex.PW-1/7 is also pertaining to same property i.e. 54, B Block, Community Center, Janakpuri Delhi. Ex.PW-1/7 as well as Mark X are pertaining to same property. Hence, no reliance can be placed upon Ex.PW-1/7 also.
DW-1 is Sh. Amrit Lal Sethi i.e. Ex-Chief Manager of defendant bank. DW-1 filed his evidence by way of affidavit i.e. Ex.DW-1/A and relied upon documents i.e. Ex.DW-1/1 to Ex.DW-1/12. Perusal of testimony of DW-1 shows that DW-1 has not stated anything about rate of rent. Testimony of DW-1 is of non help in deciding the quantum/rate of mesne profits/damages.
DW-2 is Sh.Madan Bisht i.e. Employee of Indian Bank. DW-2 produced copy of lease deed dated 31.01.1997 i.e. Ex.DW-2/1 and also Copy of lease deed dated 16.05.1985 i.e. Ex.DW-2/2. Ex.DW-2/1 is pertaining to property no. C-26 and C-27 Community Center, Janakpuri Delhi for the period w.e.f.01.10.1994 for a period of five years. Ex.DW- 2/2 is pertaining to property no.C-19, Community Center, Janakpuri, for period w.e.f. 01.04.1985 for a period of five years. In the present case, we are concerned with damages/mense profits w.e.f. 01.03.2003 till 31.03.2006. Ex.DW-2/1 and Ex.DW-2/2 are pertaining to period w.e.f. 1994 to 1999 and 1985 to 1990 respectively. Hence, I am of the considered view that no reliance can be placed upon Ex.DW-2/1 as well M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 10/11 as Ex.DW-2/2 for deciding the issue in hand.
The evidence led by parties during trial is of no help in deciding the issue in hand. Hence, mesne profits/damages cannot be awarded at the rate as claimed by plaintiff.
Accordingly, the Court while taking judicial notice of the fact that rents have been increasing in Delhi year by year grants damages/mesne profits @Rs.40,000/- per month w.e.f. 01.03.2003. The plaintiff shall be entitled to enhancement @10% per annum in the mesne profits/damages after completion of each year.
The defendant shall be entitled to adjust the rent/amount already paid to the plaintiff i.e. Rs.34,410/- per month.
The plaintiff shall also be entitled simple interest @ 9% per annum on the arrears of damages/mesne profits till its realization.
The plaintiff shall deposit the deficient Court Fees towards mesne profits/damages awarded.
Plaintiff shall also be entitled to costs of suit. Decree sheet be prepared subject to filing of deficient Court Fees by plaintiff.
File be consigned to record room after necessary compliance.
Announced in the open Court (DEEPAK DABAS)
Dated: 28th February 2018 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
M/s Badri Nath Builders Pvt Ltd. Vs. Punjab & Sind Bank Page No. 11/11