Delhi District Court
Sushila Goela vs Union Bank Of India on 24 September, 2009
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In the court of Sh. Bhupesh Kumar : Addl. District
Judge-06(WEST) : Delhi
Suit no. 560/04
In the matter of :
1. Sushila Goela
Wd/o Late Sh. Mohanlal Goela
2. Sh. Arun Sh. Goela,
s/o Late Sh. Mohanlal Goela
3. Sh. Lalit Sh. Goela
S/o Late Sh. Mohanlal Goela
4. Kirti Sh. Goela
S/o Late Sh. Mohanlal Goela
All resident of
5, Bhamashah Marg,
Delhi-110 009
......... Plaintiffs
Versus
Union Bank of India,
B. O. 625, Chandni Chowk,
Delhi-110 006.
......... Defendant
Date of Institution : 20.01.2001
Date of final arguments : 14.09.2009
Date of Decision : 24.09.2009
Contd.....
2
JUDGMENT :
1. The plaintiffs have filed the present suit against the defendant seeking decree of ejectment, decree for payment of 58,000/- and decree for pendente lite and future mesne profit of damages @ 29,000/- per day till the delivery of possession with liberty to enhance in case of rise in market value alongwith interest @ 18% p.a.
2. The suit has been filed on the ground that plaintiffs are owners of premises bearing municipal no. 625-632, Ward VI, Chandni Chowk, Delhi-06 and the defendant is their tenant in said property of 5528 sq. feet covered area on all the floors @ Rs. 11.52 per sq. feet per month. The contract of tenancy of defendant has expired by efflux of time at the end of June, 01. An advance notice dt. 6.10.2000 terminating the tenancy of defendant was issued. Even a letter dt. 25.1.01 was issued by plaintiffs to defendant mentioning that in case defendant hold the premises after termination of the lease then the defendant Contd.....
3would be liable to pay Rs. 29,000/- per day as damages/compensation. The defendant even on termination of lease and advance intimation/notice has failed to vacate and deliver back the premises to plaintiffs. Thus, the defendant is liable to pay mesne profits for being unauthorized occupants of premises after June, 01. The cause of action arose to the plaintiffs on 10.9.99 when the lease agreement was executed, the on 30.1.01 the date of determination of lease by efflux of time as well as on 6.10.2000 and 25.1.01.
3. The defendant contested the suit and filed written statement taking preliminary objections that the plaint has not been signed and verified in accordance with law. No notice U/s 106 was ever served upon defendant. Even the notice dt. 6.10.00 and 25.1.01 as referred in plaint were also never served. The plaintiffs continued to accept and admitted the rent between the parties without any objection. Hence, the notice, if any stands waived in accordance with law. The total area of 4125 sq. feet was let out to the defendant and not 5528 sq. feet Contd.....
4as claimed. The suit has not been properly valued for the purpose of court fee.
On merits, the landlord tenant relationship was not denied. However, it was submitted that in accordance with specific agreement between the parties and as more particularly duly recorded in the lease deed dated 10.9.1990 the suit premises in occupation of defendant is 4125.58 sq. ft. It was denied that the tenancy of the defendant was expired by efflux of time in June, 01. It was denied that the defendant is in unauthorized possession of suit premises. It was denied that the tenancy of the defendant bank was terminated in accordance with law. It was further denied that the defendant bank has any liability to pay any mesne profit to the plaintiff as alleged. It was again submitted that the defendant bank continued to pay and plaintiffs accepted the rent till date. It was further submitted that no cause of action arose in favour of the plaintiffs. On the basis of these submissions prayer was made to dismiss the suit.
4. Replication was filed by the plaintiffs wherein the averments Contd.....
5made in the written statement have been generally denied and those made in the plaint have been reiterated and reaffirmed.
5. On the basis of pleading of parties following issues were framed on 20.8.04 by my Ld. Predecessor :-
1. Whether the suit has not been properly signed and verified? OPD.
2. Whether the suit has been correctly valued for the purpose of court fees and jurisdiction? OPP
3. Whether the tenancy of the defendant has been validly terminated? OPP
4. Whether there is a waiver of termination of tenancy? OPD.
5. Whether the plaintiff is entitled to decree of possession? OPP
6. Whether the plaintiff is entitled to mesne profit, if yes, at what rate and for what period? OPP
7. Relief.
6. After framing of issues the plaintiff moved an application U/o 12 Rule 6 CPC to pass the judgment on the basis of admission made by defendant. The application was allowed by my ld. predecessor court on 25.7.2005. During execution Contd.....
6proceedings, the possession of the property was obtained by plaintiffs in the month of March, 2006.
Accordingly issue No.1 to 5 were decided. The only issue remained to decide was issue No.6 i.e. "Whether the plaintiff is entitled to mesne profit, if yes, at what rate and for what period?"
7. In support of their case, plaintiffs have examined plaintiff No.3 Sh. Arun Shankar Goela as PW1. Sh. Satish as PW2, Sh. Amit Raj as PW3, Sh. C.P. Khandelwal, as PW4, Sh. Girish as PW5, Sh. Rakesh Ranjan as PW6 and Sh. Sushil Kumar as PW7. All these witnesses were examined by plaintiff to bring on record the rent pay by other bankers for the tenanted premises taken on rent in the same area.
8. The defendant has examined Sh. R.P. Berry, Chief Manager as DW1 and Sh. P.K. Juneja as DW2 in support of his case. DE was closed.
Contd.....
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9. I have heard the arguments of Ld. counsel for plaintiff and Ld. counsel for defendant .
10. My findings on issue no. 6 are as under :
Issue no. 6. Whether the plaintiff is entitled to mesne profit, if yes, at what rate and for what period? OPP
11. Ld. counsel for plaintiffs has submitted that plaintiff no. 2 Arun Shankar Goela appeared in witness box as PW1. He has proved letter dt. 30.5.01 as Ex. PW1/2 calling upon the defendant to vacate the premises upto 30.6.01 failing which to pay damages to the tune of Rs. 29,000/- per day for unauthorized occupation. On 20.6.01 another letter was issued asking the defendant that the tenancy would expire on 30.6.01. But the service of the said letters were never disputed. Rather the defendant has duly replied upon notice Ex. PW1/4 regarding the receipt of said notices.
12. Further the plaintiffs have demanded Rs. 29000/- per day as Contd.....
8damages. The said damages have been demanded as damages / mesne profit as at the relevant time the rent of the other premises of the vicinity which were leased out to other banks were on more or less similar rates. The plaintiff in this regard examined Satish Kumar as PW2 who has brought on record the copy of lease deed dt. 18.7.05 executed between the lessor and lessee bank i.e. IDBI to prove the settled rate of rent between them as Rs. 2,30,000/- p.m. As per evidence of PW3 Amit Raj the leased executed in farouvr of UTI bank the agreed rent for the first years has been settled as Rs. 2.05 lacs and for next two years as Rs. 2.35 lacs and next years as Rs. 2,78,113. As per evidence of PW4 on 24.12.02 the lease deed was executed with HDFC bank @ Rs. 2.76 lacs per month. As per evidence of PW5 Sh. Ganesh, the lease deed executed between the owner of the property and Karnataka Bank Ltd. on 9.2.05 @ Rs. Two lacs for the first three years and 2.33 lacs for next three years etc. PW6 Rajesh Rajan record keeper has proved the copy of the lease deed executed between owners of the property and IDBI bank and further stated that rent of the said premises was Rs. 2.03 lac Contd.....
9per month. PW7 Sushil has proved the lease executed between the owners of the property and Corporation Bank. So the prevailing rate of rent in the same vicinity where the suit property in situated was much higher than the rent payable by the defendant in the present case. Since the tenancy was terminated by efflux of time and in view of notice Ex. PW1/3. Therefore, as per law after the expiry of said period the defendant remained unauthorized and illegally in the premises for which he is liable to pay damages/ mesne profit at the prevailing rates at the relevant time in the same area. Reliance was made in case Arya Orphnage vs. Alfred G. Wuerfel FC, 2009 (107) DRJ 318; M.R. Sahni vs. Doris Randhwa, 149 (2008) DLT 635; Mst Qaiser Jahan Begum vs. Messers Ramzan Karim & sons, 1998 (46) DRJ; Rajender Pershad (dead) by LRs vs. Smt. Darshana Devi, 93 (2001) DLT 1 (SC) and Rattan Arya etc. vs. State of Tamil Nadu and another, AIR 1986 SC 1444.
13. On the other hand, Ld. counsel for defendant has not disputed the termination of tenancy with efflux of time or with Contd.....
10service of letter Ex. PW1/2. However, he has argued that damages or mesne profits as Rs. 29,000/- as claimed by plaintiffs are arbitrary, unjust and unfair and on much higher side. It was vehemently submitted that the possession of the property by the occupant is not the only criteria to evaluate the mesne profit but it depends of number of surrounding circumstances viz. the condition of the property, service provided by its owner, the necessary fixtures attached to the property, maintenance of the property etc. Reliance was made in case National Radio & Electronic Co. Ltd. vs. Motion Pictures Association, 122 (2005) DLT 629 (DB); W.H. Deeth (Ballabhgarh) & Co. vs. Punjab National Bank, 102 (2003) DLT 787; Rattan Lal vs. Girdhari Lal and another, AIR 1972 Delhi 11; Phiraya Lal Kapur vs. Jia Ranik and another, AIR 1973 Delhi 186 and AIR 1965 SC 1231.
14. I have heard the arguments of ld. counsel for both parties beside going through the material on record carefully.
Contd.....
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15. Before proceedings ahead it is necessary to mention the meaning of the term Mesne Profit. It has been defined in Section 2 sub clause 12 of CPC which is as under : -
"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
16. The bare reading of section 2 (12) of CPC reveals that the foundation of cause of action for mesne profit is wrongful possession of defendant over the property of plaintiff.
17. In the instant case un-disputedly the plaintiffs are owner/landlord of the property in question and the defendant was their tenant in property measuring covered area 4125.58 sq. feet on all floor of property bearing no. 625-632, Chandni Contd.....
12Chowk @ Rs. 33,000/- per month w.e.f. 1986. As per lease deed executed on 10.9.90 the defendant was to pay enhance rent @ 20% w.e.f. 1.7.1999. The lease deed dt. 10.9.1990 was executed for ten years w.e.f. 1.7.1986 to 30.6.1996. As per clause k(i) of the said lease the term of the lease could have been renewed for another five years on the same terms and conditions at the discretion of lessor. Vide letter dt. 14.6.1986 of Chief Manger of defendant bank lease was further extended for five years i.e. w.e.f. 1.7.1996 to 30.6.2001. Hence, the said record shows that the legal/permissible possession of the defendant over the property in question was upto 30.6.01. Letter / notices dt. 6.10.2000, 25.1.01 and even 31.5.01 are on record vide which the tenancy of the defendant were terminated. There is no requirement to give fresh findings regarding the receipt of said letters by the defendant as the decree of possession of the property has already been passed and has been duly executed. This discussion leads to the conclusion that the possession of the defendant over the property in question was not authorized.
Contd.....
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18. Further as per evidence of PW1, the property is heritage property and the entry of the premises remained unchanged. Further during cross examination of PW1 it came on record that since 1986 except whitewash that too after three years, the plaintiff has not carried out any necessary repairs. All the repairs and maintenance were carried out by the defendant. The defendant has installed AC plant, changed the floorings, erected the temporary wooden structure, relocated and added several new toilets, computerized the branch etc. There is nothing on record to show that the changes or renovations were carried out by the defendant without consent of plaintiff or the plaintiff have ever objected to the same. The evidnece on record further shows that the plaintiff has not permitted the defendant to install ATM in the premises.
19. The plaintiffs by evidence of PW2 to PW6 have brought on record the rent pay by other banks to their landlords in the area. It was submitted that the rent pay by other banks are on Contd.....
14much higher. On this score it is found that as per cross examination of said witnesses, all the properties were newly constructed or renovated with latest facility like central AC, computerization, ATM etc. Further their evidence reveals that the lease deed qua IDBI bank as came in evidence of PW2 was executed on 18.7.05, lease deed qua UTI Bank was executed on 9.9.04, lease deed regarding Karnataka bank on 9.2.05. As matter of fact, the present suit was filed in the year 2001. It transpires that all the lease deeds executed between all the owners of properties and different banks of the same area were executed after long time gap of institution of the present suit. Further at no stretch of time the plaintiffs have uttered anything or explained that on what ground or justified reason the plaintiff has claimed the damages @ Rs. 29,000/- per day. In the plaint the plaintiff has claimed the total area under the tenancy of defendant as 5528 sq.feet, whereas, in the written statement the defendant has denied this fact and stated that the total area under the tenancy of defendant was 4125 sq. feet and this fact was not denied in the replication. And even Contd.....
15this fact was even stated by plaintiff in his affidavit as PW1. Therefore, the total area is found to be 4125.58 sq. feet. The last paid rent was @ Rs. 11.52 per sq. feet per month i.e. Rs. 47,526.68 per month. The plaintiff in the present petition has claimed Rs. 29,000/- per day and the multiplier of the said amount per month of 30 days is found to be Rs. 8,70,000/-. It is approximately 18 times more than the actual rent per month.
20. I have carefully gone through the abovesaid judgments on which ld. counsel for parties have relied in the light of the fact of the present case. It is found that in view of lease deed dated 10.9.1990 the lease was upto 30.6.1996. In view of letter dt. 14.6.1996 the lease was extended upto 30.6.01. There is nothing on record that the said lease was extended or the parties were entered into any such new agreement. Therefore, after 30.6.01 the possession of the respondent was unauthorized with efflux of time and the advance notices dt. 6.10.2000 & 25.1.2001.
21. The admitted tenancy in the matter is since 1986. It is also Contd.....
16matter of evidence that the defendant has carried out the necessary repairs, installation of AC plant etc. for smooth running of the bank business. No doubt the plaintiff has shown its intention not to enhance the tenancy vide first letter dt. 6.10.2000 i.e. around 8-9 months prior to the expiry of period of lease agreement. But the fact that the property was situated in one of the prime business locality of Delhi which is already very congested where it is very difficult to find an alternative premises cannot be ignored. It is very difficult especially for the nationalized bank like defendant to shift its business from one place to another.
22. The rate of admitted tenancy during the relevant period was Rs. 11.52 per sq. feet/per month. In case National Radio and Electronic Co. Ltd. vs. Motion Pictures Assocciation, 122 (5) DLT, 629 (DB) Hon'ble High Court has inter alia, hold as under :-
"The rent may vary based on location of properties, nature of construction, period of construction, Contd.....17
purpose/user for which the premises are let, variation between demand for tenanted premises and availability of premises and even factors relating to the position of the economy."
1. In the instant case, keeping in mind the old tenancy, well established business of nationalized bank where the public money is involved, the maintenance of premises in question by defendant itself, it is found that demand of Rs. 29,000/- per day as damages/ mesne profits are found to be unjustified and on higher side. Considering the entire facts and circumstances, it is found that Rs. 25 per sq. feet for each month would be sufficient to meet the ends of justice. If any amount earlier paid for said period by the defendant to plaintiffs, the same shall be adjusted.
2. Ld. counsel for plaintiffs has submitted that the plaintiffs are also entitled for interest on mesne profits. On this score it is found that the plaintiffs have not claimed interest on mesne Contd.....
18profits. But the provisions of Section 2 of CPC which defines the mesne profits itself states that the claimant is entitled for interest on profits. Further in case Mahant Narayana Dasjee Varu vs. Board of Trustees, Tirumalai Tirupati Devasthanam, AIR 1965 SC 1231 it was hold that interest is an integral part of mesne profits and the same has to be allowed in the computation of mesne profits itself.
3. In view of the provisions of Section 2 of CPC and in view of abovesaid judgment it is hold that the plaintiffs are entitled for interest also on the mesne profits. Considering the facts and circumstances it is found that the 8 % per annum on the mesne profits would be sufficient. Accordingly, it is hold that the plaintiffs are entitled to the sum of Rs. 25/- per sq. feet of total area in occupation of the defendant i.e. 4125.58 sq feet as mesne profits w.e.f. 30.6.01 till March 2006, as the premises was stated to be vacated in the month of March, 2006. The suit stands decreed accordingly. Cost of the suit be also awarded to the plaintiffs. Decree sheet be prepared accordingly. File be Contd.....
19consigned to record room.
(Bhupesh Kumar) Additional District Judge-06/ West District/Delhi 24.9.09 (Announced in open court) Contd.....