Delhi District Court
Sh. Harish Kumar vs Sh. Jagjit Singh Bedi (Expired) on 29 August, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL
JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI.
SCJ No. 608545/16/04
Date of Institution : 20.04.2004
Date of reservation of judgment : 24.08.2016
Date of pronouncement of Judgment : 29.08.2016
Sh. Harish Kumar
S/o Sh. Ram Rang Magoo
R/o RZ142, Indira Park
Uttam Nagar, New Delhi.
.................Plaintiff
vs.
1.Sh. Jagjit Singh Bedi (Expired) S/o Sh. Ishar Singh R/o 17/1A, Tilak Nagar New Delhi110018.
2.Sh. Gurvinder Singh Bedi S/o Sh. Jagjit Singh Bedi R/o 17/1A, Tilak Nagar New Delhi110018.
3.Sh. Balbir Singh Manchanda S/o Sh. Manik Singh Manchanda R/o 41/15, Ashok Nagar, New Delhi.
Also at Manchanda Boot House 171/A, Tilak Nagar, New Delhi18
4.Sh. Shyam Sunder S/o Sh. Gian Chand R/o 41/3, Ashok Nagar New Delhi.
..............Defendants SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8 SUIT FOR SPECIFIC PERFORMANCE, POSSESSION AND DAMAGES Judgment
1. At the outset, it is pertinent to mention that this judgment is confined to determination of the damages/Mesne profits qua suit property bearing shop no.1, admeasuring 7'5'' x 15' and 5' x 23' at front portion of property bearing no. 17/1A, Tilak Nagar, New Delhi18 as a preliminary decree qua Specific Performance and possession of suit property has already been passed in favour of plaintiff vide Judgment dated 16.03.2016.
2. Though the facts of the case need no reiteration but the same is very briefly reproduced. The factual matrix leading to this suit as per plaintiff was that defendant no.1, Sh. Jagjit Singh Bedi, is the recorded owner of property bearing no. 17/1A, Tilak Nagar, New Delhi18 vide registered perpetual lease deed registered executed in his favour 1 by the Land & Development Office, Ministry of Urban Development, Government of India. Defendant no.1 had executed a General Power of Attorney in favour of his son i.e. defendant no.2 Sh. Gurvinder Singh Bedi, on 22.02.1994 in respect of half portion of private shop/room measuring 7'5'' x 15', one room measuring 13'10'' x 7'3'' at front side alongwith 3'' feet canopy wall built therein fitted with electric connections in running condition.
3. It is further stated that defendant no.3 Sh. Balbir Singh was a tenant of defendant no.1 in the suit property and was running business of footwear under the name and style of "Manchanda Boot House". Defendant no.1 had initiated eviction proceedings against defendant no.3 vide Eviction Petition No. 144/80 and during the pendency of said proceedings, defendant no.1 and 2 had arrived at a settlement with SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8 defendant no.3 and the said eviction petition was withdrawn vide Order dated 03.03.1994. As per agreement dated 28.02.1994, defendant no.1 and 2 agreed to sell a portion of the suit property admeasuring 7'.5'' x 15' to defendant no.3 and various documents were executed in favour of defendant no. 3 in this regard such as a registered Will dated 28.02.1994,an irrevocable Special Power of Attorney dated 28.02.1994, an irrevocable General Power of Attorney, an Agreement to sell dated 28.02.1994 for a consideration of Rs. 25,000/ and an Affidavit dated 28.02.1994 declaring and affirming that defendant no.1 had transferred all his ownership/ possession rights of shop no.1 in favour of defendant no.3.
4. Defendant no.3 therefore, became an Agreement purchaser in possession of the said portion of the property occupying the same in part performance of the agreement. Later on, the remaining portion of the above property was also transferred in the name of defendant no.3 by defendant no.2 as an Attorney of defendant no.1,on 04.03.1994, vide Agreement to sell, receipt for Rs. 24,000/, Special Power of Attorney, Will, Affidavit and duly registered General Power of Attorney, all documents executed on 04.03.1994. Accordingly, defendant no.3 became agreement purchaser and continued to remain in actual physical possession of two portions as aforesaid which together constitute the "suit property" herein.
5. Further states that on 07.02.2000, defendant no.3 entered into an agreement with the plaintiff to transfer his rights and possession in the suit property to plaintiff for a total consideration of Rs.1,80,000/. Accordingly, he executed Special Power of Attorney in favour of defendant no.4 Sh. Shyam Sunder, authorizing him to sell the suit SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8 property to plaintiff and also to execute all the requisite documents. An Affidavit dated 07.02.2000 was also executed by defendant no.3 in this regard. Defendant no.4 in turn, executed an Agreement to sell for Rs.1,80,000/ in which he acknowledged having received the said amount from plaintiff, a receipt for Rs.1,80,000/, a possession letter acknowledging delivery of possession of suit property, duly registered GPA, Affidavit, all documents dated 16.02.2001, in favour of plaintiff.
6. It is further stated that defendant no.3 did not deliver the actual physical possession of suit property to plaintiff as undertaken by him and on 01.03.2001, he executed an undertaking in favour of plaintiff that he would deliver the possession of suit property to the plaintiff within two months. An Affidavit to this effect was also executed by defendant no.3. However defendant no.3 did not deliver the possession of suit property to plaintiff even then. However on 21.05.2001, in order to reassure the plaintiff, he executed a fresh set of documents i.e. Agreement to sell, receipt, general power of attorney, possession letter, indemnity bond, Will and Affidavit in favour of plaintiff.
7. It was alleged by plaintiff that defendant no.3 had since became dishonest and did not hand over the possession of suit property to him despite receiving the entire sale consideration and has infact resiled from agreement entered with the plaintiff. Accordingly, the plaintiff preferred the present suit before this court seeking Specific performance in his favour requiring defendants no.1 to 3 to execute and register a Sale Deed of suit property in his favour and to hand over the possession of the same Or in the alternative, a decree for damages for breach of Agreement to Sell dated 16.02.2001 for Rs.1,80,000/.
SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8 Perpetual injunction was sought to restrain defendants, their agents, etc., from transferring, alienating, parting with possession of the suit property. Lastly, the plaintiff sought damages @ Rs.1,00,000/ p.m. from the date of filing of suit till the delivery of possession of suit property, for illegal use, occupation and enjoyment of suit property by defendant no.3.
8. Suit was contested only by defendant no.3 who also filed his written statement, however since he denied his signatures on the written statement, the same was taken off the record vide order dated 13.04.2005 and the case proceeded without his WS or defence being on record.
9. In order to prove his case, the plaintiff examined two witnesses. PW1 is plaintiff himself and PW2 is Sh. Amarjeet Singh, the witness in some of documents executed in favour of plaintiff. Thereafter vide Judgment dated 16.03.2016, the suit of plaintiff was decreed qua specific performance of contract and the defendants, more specifically defendant no.3, were directed to execute duly registered Sale deed in favor of the plaintiff, in respect of the suit property subject to L& DO granting permission to execute the sale deed in favor of the plaintiff. Further Defendant no.3 was also directed to hand over the vacant possession of suit property as a consequent relief. The relief of Permanent Injunction became infructous in view of grant of relief of Specific performance. However as regards damages/mesne profits, an inquiry in terms of Order XX Rule 12 (1) (c) CPC was initiated to determine the same as there was no evidence produced by plaintiff in this regard.
10. In terms of the said judgment, enquiry was initiated by the SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8 court. Pursuant to the directions of the court, only the plaintiff filed certain documents in order to determine the mesne profits/damages qua the suit property. No document was filed by defendant.
11. As far as damages/mesne profits is concerned, the main object of awarding damages/mesne profit is to compensate a person who has been kept out of possession and deprived of the enjoyment of his property even though he was lawfully entitled to possession of the property in question, and the word compensation would embrace in its purview any actual loss suffered by a lawful owner. Hence there can be no dispute regarding the fact that plaintiff is entitled to mesne profits/damages since a decree of specific performance and possession qua the suit property is already passed in his favour.
12. I have perused the documents filed by plaintiff. The documents as filed, are not helpful for the court to determine the mesne profits as the documents cannot be relied for various reasons. The two Agreements dated 27.03.1999 allegedly executed by defendant no.3 are either disputed document or unregistered document. The Internet downloaded documents from the website of www.99acres.com and www.magicbricks.com are inadmissible in evidence being computer generated documents without certificate u/s 65B of Indian Evidence Act and also due to lack of formal proof. Further the registered lease deed dated 01.12.2014 executed between S.Sand Singh and Smt. Kulvinder Kaur and another lease deed 31.12.2014 executed between Sh. Jigar Singh and Sh. Aya Ram are of the year 2014 whereas damages/mesne profits are being claimed in this suit since year 2001. Further the property in those lease deeds was leased out for residential use and not commercial use, as in the present case. Hence the SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8 documents of plaintiff cannot be relied.
13. Under such circumstances, I deem it fit and proper that the consideration amount of Rs.1,80,000/ paid by the plaintiff for the suit property as on 16.02.2001, be taken as the base for determining the damages by granting interest on the same. To clarify it further, the damages would be that amount of yearly interest, which the plaintiff could have earned had he extended loan of an amount which was equal to the consideration amount of the suit property. Even otherwise, the plaintiff had also claimed a decree for damages for Rs.1,80,000/ for breach of Agreement to Sell dated 16.02.2001, as an alternative relief in the suit, so this amount can be a reasonable basis.
14. In commercial and business transactions, an interest @ 12 p.a. to 18 % p.a. is considered to be generally an acceptable rate of interest. Hence I will take 12% p.a. to be the base interest and the yearly interest so earned on the consideration amount, to be the mesne profits/damages for the starting years. Further the damages would be payable by defendant no.3 to plaintiff starting from 21.05.2001 (the date when defendant no.3 executed fresh set of documents such as Agreement to sell, receipt, general power of attorney, possession letter, indemnity bond, Will and Affidavit in favour of plaintiff). Accordingly the amount of Rs. 21,600/ {Rs.1,80,000/ (consideration amount) x 12 %) would be the annual damages for first year with the monthly mesne profits/damages being Rs.1,800/ {Rs. 21,600/ (annual damages) divided by 12 (number of months in a calender year)}. This mesne profits/damages shall be payable by defendant no.3 from 21.05.2001 till 31.05.2004. Thereafter defendant no.3 shall pay mesne profits/damages calculated by granting interest @ 13% p.a. on the consideration amount, SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8 keeping in view the natural hike in the value of suit property, which is an immovable property. Thus the annual mesne profit/damages would be Rs. 23,400/ (Rs.1,80,000/ x 13%) to be payable for the period between 01.06.2004 to 31.05.2007. In this manner, for every three years, the amount of damages/mesne profits will keep on increasing by one percentile each.
15. Relief.
With above observations, the suit of the plaintiff is finally decreed with directions to defendant no.3 to pay annual damages at an amount of Rs. 21,600/ (calculated @ 12% on consideration amount of Rs.1,80,000/) for the period between 21.05.2001 till 31.05.2004, thereafter an amount of Rs. 23,400/ (13 % x Rs.1,80,000/) for the period between 01.06.2004 till 31.05.2007, further amount of Rs. 25,200/ (14% x Rs.1,80,000/) for the period between 01.06.2007 till 31.05.2010, then an amount of Rs. 27,000/(15% x Rs.1,80,000/) for the period between 01.06.2010 till 31.05.2014 and lastly; an amount of Rs. 28,800/ (16% x Rs.1,80,000/) for the period from 01.06.2014 till the time the suit property is finally vacated by defendant no.3. In case the suit property is not vacated even till 31.05.2017, the mesne profits/damages will keep on increasing in the same manner every three years. Plaintiff is also entitled to the costs of the suit.
The plaintiff is however directed to pay the additional court fees which now becomes payable on the above amount decreed in his favour. The decree sheet shall prepared only after payment of the remaining court fees.
File be consigned to Record Room after due compliance.
SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8 Announced in the open court ( A.K. Agrawal) today on 29.08.2016 Civil Judge 01 ( West)/Delhi SCJ no. 608545/16/04 Harish Kumar vs Jagjit Singh 8/8