Delhi District Court
Mrs. Ruby Khanna vs M/S Sumitomo Corporation on 24 December, 2007
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL DISTRICT JUDGE: DELHI
(FAST TRACK COURT)
Suit No.162/06/95
1. Mrs. Ruby Khanna
W/o Mr. S. Khanna
R/o D - 9, Hauz Khas,
New Delhi - 110016.
2. Mrs. Manorama Khanna
W/o Late Sh. C.P. Khanna
R/o D - 9, Hauz Khas,
New Delhi - 110016. .....Plaintiffs.
Versus
M/s Sumitomo Corporation,
3rd Floor, Antriksh Bhawan,
22, Kasturba Gandhi Marg,
New Delhi - 110001. .....Defendant.
Date of filing of suit : 06.07.1995
Date of decision of suit :
SUIT FOR POSSESSION AND RECOVERY OF MONEY
JUDGMENT
1. The above named plaintiffs have filed the present suit against the aforementioned defendant interalia making the following prayers to:-
(i). pass a decree for possession in favour of the plaintiffs and against the defendant in respect of Flat no.306, situate on the third floor of Antriksh Bhawan, 22 Kasturba Gandhi Marg, New Delhi - 110001, shown in colour red in the site plan.
(ii). pass a decree for Rs.3,28,416/- in favour of the plaintiffs and against the defendant with interest @ 24% per annum from the date of the suit till realization.
(iii). pass a decree for pendente lite and future mesne profits in respect of the suit premises at the rate of Rs.1,32,400/- per month, together with interest @ 24% on this amount from the date the amount becomes payable every month till realization, and also till the defendants deliver actual and physical possession of the suit premises to the plaintiffs. The plaintiffs undertook to pay additional court fee as per law.
(iv). Cost of the suit is also demanded.
2. Brief facts of the case as per plaint are that the defendant company was the tenant of the plaintiffs flat bearing no.306, having super area of 662 sq. ft. including bathroom, easements etc., situate on the 3rd Floor of Antriksh Bhawan, 22 Kasturba Gandhi Marg, New Delhi - 110001 at the rate of Rs.17,212/- per month. The plaintiffs were the landlords of the defendant. Since the plaintiffs did not and do not want to keep the defendant as their tenant, so a notice dated 06.03.1995 thereby terminating the tenancy of the defendant was served upon the defendant. Defendant replied the said notice through its reply dated 31.03.1995, asserted interalia that the lease was for a period of five years subject to 35% increase and the defendant has exercised the said right, etc. It is also averred that the plaintiffs had returned six original cheques amounting to Rs.69,708.60ps., however the defendant vide reply dated 31.03.1995 again sent the cheques. The plaintiffs thereafter sent an another letter dated 13.05.1995 through their advocate mentioned therein that:-
'' 2. Under Section 107 of the Transfer of Property Act, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. There was no such registered instrument and as per the settled law of the land, the said tenancy was from month to month terminable with notice served as required under Section 106 of the Transfer of Property Act.
3. That the tenancy in respect of the flat referred to above has already been terminated as per law. The defendant ought to have delivered the vacant and peaceful possession of the premises as per the law of the land. The contention that the said tenancy has been renewed for further period of five years is not legally correct.
4. The plaintiffs are not prepared to accept any amount as rent. However, any amount can be accepted toward part payment of damages for use and occupation without in any manner waiving the notice terminating the tenancy already served. All the pay-orders are therefore being returned to M/s Sumitomo Corporation. If hereafter any amount is received, the same shall be appropriated without any further reference, towards damages for use and occupation only, without waiving the notice terminating the tenancy already served. ................'' Again, reply dated 26.05.1995 was sent on behalf of the defendant whereby defendant once again sent the cheques/pay orders. The plaintiffs are depositing the amounts (i.e. the cheques) towards part payment of the amount of mesne profits/damages for use and occupation without in any manner waiving the notice terminating the tenancy and all amounts are being deposited without prejudice. The tenancy as per law could not have been extended for a period of five years in the manner purported to be done by the defendant. The said flat/premises can fetch Rs.200/- per sq. ft.
per month as rent on the super area and the plaintiffs claim damages for use and occupation/mesne profits @ Rs.1,32,400/- per month from the defendant for remaining in occupation of the said premises after termination of the tenancy. After adjusting the amount received, the balance amount sought to be recovered from the defendant comes to Rs.3,28,416/- only. Since the provisions of Delhi Rent Control Act are not applicable to the said premises and there was and there is no registered lease deed, the tenancy according to the law of the land was from month to month terminable as per the provisions of Section 106 of the Transfer of Property Act. As such, defendant was and is liable to vacate the aforesaid premises and surrender vacant and peaceful possession thereof to the plaintiffs and also pay the amount of damages for the use and occupation/ mesne profits.
The Cause of action firstly arose in favour of plaintiffs and against the defendant on 08.03.1995 when the notice dated 06.03.1995 was served on the defendant and again on the expiry of the tenancy month, 31.03.1995. The cause for damages for use and occupation/mesne profits arose when the defendant did not pay the damages for use and occupation/ mesne profits and is a continuing cause of action. Since the flat/ immovable property involved in the suit is situated in New Delhi and the office of the defendant company is also situated in New Delhi, so this court has jurisdiction to try and entertain the present suit. The suit has been properly valued for the purpose of court fee and jurisdiction.
3. Defendant contested the suit by filing the Written Statement in which it has taken several preliminary objections like in the absence of any legal and proper notice of termination of tenancy as required under Section 106 of the Transfer of Property Act, present suit for possession is not applicable. The alleged notice of termination of tenancy is not in accordance with law and the same is hit by the provisions of Section 110 of the Transfer of Property Act. The alleged notice of termination of tenancy has been waived as the plaintiff after serving the alleged notice has accepted the rent from the defendant. The amount of rent paid by the defendant can not be appropriated towards any other head except under which the same has been paid. The suit of the plaintiff is premature. The plaintiffs have in their plaint made reference to the lease deed executed between the parties and the reference regarding the said lease deed has been made in paragraphs 3 & 4 of the plaint. The said lease deed is dated 16.06.1989 and clause 14 of the same reads as under:-
''14. That the lease will be initially for a period of five years and it shall be renewable at the option of the Lessee for a further period of five years subject to the 35% increase in the rent last paid. Again, on the expiry of the renewed period of lease, the lease shall be renewable at the option of the lessee for a further period of five years subject to 35% increase in the last rent paid. However, thereafter, the lease shall be renewable on the basis of the revised terms and conditions as may be agreed upon between the Lessor and the Lessee. It is being made clear that upon exercise of the option the lease shall stand automatically renewed on the same terms and conditions except increase in rent for a period of five years.'' Even otherwise the plaintiff cannot take the benefit of their own wrongs and at the same time they are estopped from filing the present suit under Section 115 of Indian Evidence Act, 1872. The defendant had acted upon the declaration and acts of plaintiffs as per clause 9 of the lease dated dated 16.06.1989 and invested crores of rupees to set up an office on the third floor of building known as ''Antriksh Bhawan''. Plaintiffs have only an area of 662 sq. ft. whereas the entire third floor has an area of approximately 10,000 sq. ft. and the defendant has been functioning therein since the date of letting with an implied and written understanding that the flat in question would be available to the defendant and at least for a period of 15 years as per clause 14 of the Leese Deed. The understanding and promises are binding on the parties to the suit because both plaintiffs and defendant know that the lease would be far a minimum period of 15 years and the legal relations were accordingly created on the basis of the terms mutually agreed in writing. Further the letting by all the flats owners of the third floor was done simultaneously and at one and the same time and on identical terms and conditions. As such all the flats owner of the third floor of Antrikhsh Bhawan are the landlords qua the defendant. There was one letting of the entire third floor. As such there can not be eviction suit for part of the premises. Suit is bad for non-joinder of necessary parties. The plaintiffs individually have no legal right to determine or any manner terminate the tenancy of the defendant unless such termination or determination of tenancy is simultaneously done by all the flat owners of third floor of building in question because there is one individual single letting and that the entire third floor was let out as one unit. The flat in question can not be identified by boundaries and at the site because entire hall on third floor was taken on rent by defendant and redone the same as per its requirements. The defendant has to restore back the entire third floor in its original condition and after the expiry of 15 years from the date of letting unless the lease is further extended by mutual consent. As such, suit is hit by the provisions of Order VII R 9 CPC. One Surender Arora of Liaison Constancy Services gave the possession of flat in question (including the entire remaining third floor of Antriksh Bhawan) to defendant on behalf and under the authority of all flat owners of said floor. Terms were settled by him, payments were made through him including advances and other amounts to enable the plaintiffs to purchase the flat etc. and the plaintiffs were never directly in picture. So, he is a necessary party to effectively adjudicate the question in controversy between the parties. He should be made a party under Order I Rule 10 CPC.
On merits side it is stated that the plaintiffs are only one of the Lessors holding a share of 662 sq. ft. of area on the third floor of building commonly known as 'Antriksh Bhawan', 22, Kasturba Gandhi Marg, New Delhi - 110001. The relationship of landlord and tenant qua the said 662 sq. ft. of area is not denied, however, it is denied that the plaintiffs are the owner of the same. It is denied that the tenancy of the defendant has been validly terminated. The notice has been waived after the plaintiffs have accepted the rent from the defendant. It is also denied that the tenancy of the premises is terminable as per the provisions of Section 106 of the Transfer of Property Act. The lease was initially for a period of five years renewable at the option of the lessee for a further period of five years subject to the 35% increase in the rent last paid. Again on the expiry of the renewed period of the lease, the lease shall be renewable at the option of the lessee for a further period of five years subject to 35% increase in the last rent paid. As the lease is renewable at the option of the lessee, the lease stands renewed for a further period of five years and the same cannot be terminated by notice under section 106 of the Transfer of Property Act. It is denied that the alleged notice dated 06.03.1995 was legal and proper. It is submitted that the plaintiffs having accepted the cheques and encashed the same, have waived the alleged notice to terminate the tenancy of the defendant. The said amount cannot be appropriated towards any other head except towards rent, as the same has been sent towards payment of rent. It is denied that the tenancy could not have been extended for a further period of five years. The tenancy is for a period of 15 years extendible at the discretion of the lessee on the conditions that the rent is increased by 35% of the last paid rent. It is also denied that the plaintiffs can claim damages for the use and occupation/mesne profits at the rate of Rs.1,32,400/- per month after the alleged termination of the tenancy. It is denied that the tenancy could be terminated by the plaintiffs by serving a notice or the defendant is liable to surrender possession. It is also denied that the plaintiffs are entitled to claim damages for use, occupation/mesne profits from the defendant. It is denied that any cause of action has arisen on 08.03.1995 and on the expiry of the tenancy on 31.03.1995 or on any other date as alleged by the plaintiffs.
Besides that defendant has also raised some additional plea that the defendant financed the purchase of the area by the plaintiffs from the builders. It was on the specific assurance of the plaintiffs that the said area of 662 sq. ft. on the third floor of the building known as 'Antriksh Bhawan' New Delhi would be available to the defendant for a minimum period of 15 years as per clause 14 of the lease deed dated 16.06.1989 and also the other terms of the said lease, as such the defendant entered into Agreement with other owners of the area on the third floor of the said building and set up its office on the third floor and in the process spent crores of rupees. In case the defendant is made to vacate the area in dispute, in that eventuality the defendant reserves its right to claim damages and other losses incurred by the defendant in setting up the office on the third floor and also to meet other contractual obligation of the lessors of their respective areas on third floor of the building. It is so because the entire office of the defendant on third floor would become useless in case the area in dispute is delivered back. The reservation to claim damages and losses from the plaintiffs is made because at this point of time the same cannot be assessed or predetermined and that the reservation is made as per Order 2 of the CPC.
4. Plaintiff filed replication to the Written Statement of defendant whereby objections and stand taken by the defendant has been vehemently denied and the contents of the plaint are reaffirmed and reasserted. It is specifically claimed that a proper and legal Notice of termination of tenancy was served on the defendant and the tenancy of the defendant stood validly terminated at the time of and prior to the institution of the suit and the defendant is liable for eviction and the plaintiffs are entitled to relief of possession. It is also stated that the notice served was and is in accordance with law, the same is not hit by the section 110 of the Transfer of Property Act and the same was served in accordance with the provisions of section 106 of Transfer of Property Act. The notice has not been waived nor the plaintiffs accepted any amount as rent after the service of the notice. Section 113 of the Transfer of Property Act provides that, ''A notice given under section 111, clause (h) is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting''.
After the service of the notice, the plaintiffs never showed an intention to show the lease subsisting by any act on their part. It is also stated that the notice was never waived, nor any amount was accepted as ''rent''. It is denied that the lease was for a period of five years or there was a renewal clause as pleaded by the defendant nor such a plea can be taken by the defendant nor any reliance can be placed on the contents of the unregistered lease deed to establish such clause in the lease deed. The tenancy as per law was tenancy from month to month, and the defendant cannot in any manner escape from the clear provisions of law. It is denied that the defendant spent crores of rupees to set up the office. The plaintiffs are the landlords of an area of 662 sq. ft. of the flat no.306 in respect of which this suit has been filed. The plaintiffs are not seeking recovery of possession of other flats; nor there was any agreement that the plaintiffs would not be entitled to sue for recovery of possession in accordance with law; nor there can be any such agreement against law. Reliance on the terms of the lease deed is misplaced and the same are not admitted. It is absolutely wrong to plead on the part of the defendant that it gets the right to occupy the premises for 15 years as alleged by the defendant, or on any ground whatsoever. The tenancy of the defendant was from month to month and this position is in no way altered merely because the defendant took on lease other flats, if any, from other owners or landlords. The plaintiffs are seeking recovery of possession of their flat only. There was no agreement between the defendant and the plaintiffs that the plaintiffs cannot terminate the tenancy until other separate owners, if any, of different premises or flats terminated the tenancy. The flat which is the subject matter of the suit can be easily and readily identified at site and the defendant can not be allowed to occupy the flat indefinitely by alleging that the flat cannot be identified at site. The suit is not at all hit by the provisions of Order 7 rule 9 CPC. It is also stated that Mr. Surender Arora was and is not the landlord of the premises, nor any rent used to be paid to him. Mr. Surender Arora had acted only as a broker and his role had came to an end because the agreement was entered into by the defendant with the plaintiffs.
While replying to the additional pleas, it is stated that the defendant never financed the purchase of the premises nor there was any assurance as alleged. There was no registered instrument to indicate that the lease was from month to month. There was no agreement that the plaintiffs would not terminate the tenancy unless other landlords/owners terminate the tenancy. The plaintiffs had no notice or knowledge about alleged spending of ''crores of rupees''. Whatever has been spent is the usual expenditure for carrying on business in the premises of this type. The defendant is not entitled to any damages as alleged. It is open to the defendant to continue to be in possession of the remaining portions or to vacate them as it likes. Further, the defendant has not made a counter claim for damages nor has paid the court fee on the same and the defendant is not entitled to any reservation under Order 2, or in any other manner.
5. On the pleadings of the parties, following issues were framed vide order dated 30.07.1998:-
(i). Whether the suit is maintainable in its present form?
(ii). Whether the plaintiffs individually have the right to determine the tenancy of the defendant?
(iii). Whether the tenancy of the defendant has been validly terminated by service of notice as required under Section 106 of the Transfer of Property Act?
(iv). Whether the defendant has been paying rent regularly? If so, its effect?
(v). Whether the plaintiffs are entitled to a decree for recovery of possession?
(vi). Whether the plaintiffs are entitled to mesne profits? If so, at what rate and for which period?
(vii). Relief.
6. In order to support their case, the plaintiffs have got examined the following witnesses:-
(A). PW-1 Sh. Narender Bhatia
(B). PW-2 Sh. S. Khanna,
and thereafter they closed their evidence. On the other hand, the defendant has opted to produce only one witness namely Sh. V.K. Grover and after his statement, defendant evidence was also closed.
7. PW-1 Sh. Narender Bhatia has testified that he is a Sales Officer working with M/s Shraya Projects Pvt. Ltd., the real estate agents. Suit property is seen by him. In the area in which the suit property is, the market rate of rent in the year 1995 was around Rs.200/- per sq. ft. per month. This rental rate continued upto January, 1998. Thereafter, there was some down trend. Throughout 1998 the rental remained Rs.150/- per sq. ft. per month. In 1999, the rental of suit property was approximately between Rs.125/- to Rs.150/- per sq. ft. per month. He also stated that Antriksh Bhawan building is one of the best buildings in this area because it has a revolving restaurant.
During cross examination, he claimed that he has been personally involved in various lease transactions which were through their company but he has not dealt with any transaction regarding Antriksh Bhawan. Maintenance charges for Ambadeep Building and Antriksh Bhawan are approximately same. In Ambadeep Building usable area is comparatively lesser. He stated that he does not know if the area of third floor of Antriksh Bhawan is about 10,000 sq. ft. but he knows that the floor area of each floor of Gopaldas Bhawan is about 15,000 sq. ft. and the rental in Gopaldas Bhawan during the year 1999 was between Rs.125/- to Rs.150/- per sq. ft. per month. Some time in 1997, they were involved in a transaction regarding a flat in Connaught Place area and at that time the rent was Rs.125/- per sq. ft. per month.
8. PW-2 Sh. S. Khanna testified that plaintiff no.1 is his wife whereas plaintiff no.2 is his mother. The defendant company had taken on rent the suit flat on a rental of Rs.17,212/- per month. The tenancy was created in the year 1990. The plaintiffs are the landladies of the suit flat. They terminated the tenancy by serving two notices upon the defendant. The first notice was dated 06.03.1995 and the second notice was dated 13.05.1995. Both of them were signed by Sh. G.D. Chopra Advocate. Copies of them are Ex.PW2/A & F respectively. Both of them were sent by registered post on the two addresses of defendant. Registration receipts are Ex.PW2/B, C, G & H. One copy of first notice was also sent by Speed Post, the receipt of which is Ex.PW2/D and its acknowledgment is Ex.PW2/E. Copy of second notice was also sent to the counsel of defendant, through registered post which is Ex.PW2/I. Both the plaintiffs executed separate Power of Attorney Ex.PW2/J & K in favour of this witness. The plaintiffs have not accepted any amount from defendant after termination of tenancy. They have not waived the notice of termination of tenancy. In March, 1995 the market rent for suit flat was Rs.200/- per sq. ft. per month. It continued till end of 1997. In 1998, it was about Rs.150/- per sq. ft. per month. In 1999, it was between Rs.125/- to Rs.150/- per sq. ft. per month. The suit flat is located in the one of the best buildings in Connaught Place area and said building has a revolving restaurant also on the top floor. In 1996, the rate of rent in Ambadeep Building situated in the same are was Rs.300/- per sq. ft. per month inclusive of service charges. He also stated that he has a commercial flat in World Trade Centre in Connaught Place area which was let out in 1995 on a rent of Rs.130/- per sq. ft. per month. The original Lease Deed of the same is Ex.PW2/L. Site Plan in respect of suit property is Ex.PW2/M. The Lease Deed in respect of suit flat is not registered. The defendants have not advanced any amount to the plaintiff at the time of creation of tenancy. The defendant was required to pay advance rent in terms of the lease agreement. A part of advance rent was required to pay to the builder M/s Ansal Properties on behalf of plaintiffs. There was no agreement between the plaintiffs and defendant that the plaintiffs could not terminate the tenancy unless the other landlords in the building terminate the tenancies of their tenant. Mr. Surender Arora was merely a broker and had no authority to settle the terms and conditions with the defendant on behalf of plaintiffs. The plaintiffs had never agreed that they would not evict the defendant for 15 years. The plaint has been signed by both the plaintiffs in his presence but the verification was done by plaintiff no.1 only. During cross examination, he confirmed that he has powers as enumerated in the P.O. He has personal knowledge of everything which he has stated. He was involved in lease transaction with defendant company. All the negotiations were done by him on behalf of plaintiffs. The negotiations were direct as well as through brokers. Some Japanese Officer was negotiating on behalf of defendant. The terms and conditions agreed in the course of negotiations were incorporated in the Lease Deed. Sh. Surender Arora was the broker who was engaged for doing negotiation on behalf of plaintiffs in respect of the rent amount and to follow their instructions. The plaintiffs were to receive the rent from January, 1990, although the lease was executed prior thereto. He confirmed of having seen two/three owners of other flats signing the lease deed in Antriksh Bhawan. The Lease Deed in respect of suit flat was executed in Antriksh Bhawan. He could not tell as to when did the completion certificate was granted to the Antriksh Bhawan. The suit flat was let out to the defendant for office purposes. The final rent agreed between them was incorporated in the lease deed. Site Plan Ex.PW2/14 was obtained from the builders. They did not receive any site with conveyance deed. He conceded that he never asked the defendant to permit him to see the flat after its letting out. He also conceded that he had not seen the flat at the time of its purchase. He confirmed that the plaintiffs are receiving amount from the defendant which are being sent on monthly basis but they are towards the damages and not as the rent. He confirmed that the plaintiffs are paying off ground rent only. They are not paying for elevators, cleaning, security, etc. These services are being provided there. He claimed that central air conditioning is not a normal service but power back up is a normal service. Power back service is being provided by the builder. He confirmed that he has a flat in World Trade Centre building but he does not know as to who is the original owner of World Trade Centre building. He confirmed that the charges for maintenance services in World Trade Centre for maintenance services are being paid by their tenants. He confirmed that he placed on record a copy of lease deed dated 28.03.1995 regarding flat no.101 at Ambadeep Building executed between Satish Mehra and Sahara India Airlines and the rate of rent mentioned therein is Rs.130/- per sq. ft. per month with advance of Rs.6.39 Lakhs as security deposits besides other advances. He also confirmed that he placed on record a copy of lease deed in respect of a ground floor flat in Ambadeep Building wherein the rent is mentioned as Rs.300/- per sq. ft. per month but he has not filed any lease deed in respect of higher floors showing rate of rent as Rs.200/- per sq. ft. per month in Ambadeep Building. There was a renewal clause in the lease of suit flat but lease deed is not registered one. The lease deed dated 16.06.1989 was executed regarding the suit property but it is not a registered document.
9. DW-1 Sh. V.K. Grover in his examination-in-chief tendered by way of affidavit Ex.DW1/A has reiterated the claim of the defendant as raised in its Written Statement. He exhibited the Lease Deed dated 16.06.1989 Ex.DW1/1 executed between defendant company and the plaintiffs. He testified that the third floor of Antriksh Bhawan was taken on lease in that behalf 20 lease deeds were executed towards the entire third floor with defendant company on identical terms and conditions. They are collectively exhibited as Ex.DW1/2. Various communications dated 21.04.1989 to 31.03.1990 and receipts for advance rent and security charges of lease of said entire third floor of Antriksh Bhawan are Ex.DW1/3 (colly.). Water & Electricity charges were paid for entire third floor collectively as a single unit and they are Ex.DW1/4. Possession of entire third floor was handed over to defendant by M/s Ansal Properties & Communications dated 30.05.1989 is Ex.DW1/5. He confirmed that the agreed rent was paid every month by defendant company to plaintiffs. The rent paid by defendant company for first term of lease was @ Rs.26/- per sq. ft. per month. From 1995 onwards, the defendant company paid rent to plaintiffs @ Rs.35.10/- per month. Rent was paid by way of two cheques of equal amounts to each plaintiff. Rent was paid till June 24, 2002. He categorically confirmed that the entire third floor of Antriksh Bhawan was vacated by defendant company on 24.06.2002. The rent was paid for area of the plaintiffs which is mentioned in the lease deed as 639 sq. ft. and it was subsequently changed to 662 sq. ft. and letter dated 07.02.1990 in that behalf if Ex.DW1/6 (colly.). The defendant company exercised the two options of renewal of lease for five years each as per clause in the lease deed dated 16.06.1989 and communication dated 23.12.1994 and 17.12.1999 in that behalf are exhibited as Ex.DW1/7 (colly.). He claimed that the market rent of third floor of Antriksh Bhawan in 1993 was around Rs.35/- per sq. ft. and was around Rs.40/- per sq. ft. in 1999 which are shown in lease deeds Ex.DW1/8 (colly.). Lease of defendant company with plaintiffs provided two options of renewal and defendant company was duly entitled to retain the premises for at least 15 years as per lease deed dated 16.06.1989. This witness has also testified that in an another suit filed by plaintiff against defendant company title as Ruby Khanna & Others Vs. M/s Sumitomo Corporation, the plaintiff has placed reliance upon the lease deed dated 16.06.1989 executed by plaintiff with defendant company but here the plaintiffs is alleging that the said lease deed can not be relied upon. Hence the plaintiff is making contradictory stands. During cross examination, he conceded that the negotiations and transactions regarding lease of property in suit had not taken place in his immediate presence and he has come to know all the contents of documents from the records. He could not say as to exactly when the different flats were demolished and the floor was made but it was done soon after execution of the lease deed. He testified that the second option to renew the lease was accepted in 1999 in accordance with lease deed clause 14. The option was exercised and rent was enhanced to Rs.35.10 ps. through letter dated 23.12.1994 Ex.DW1/7. Ex.DW1/8 collectively are not the certified copies and they were not executed in his presence. He could not confirm as to whether Oswal Chemical & Fertilizer Ltd. had taken on lease flat no. 415 in Antriksh Bhawan on 04.10.1997 at the rate of Rs.100.04/- per sq. ft. He also could not confirm as to whether DSP Financial Consultants had taken flat 609 in Antriksh Bhawan on 24.06.1996 @ Rs.100/- sq. ft. per month. He could not say if rate of rent on second extension was to become Rs.47.39/- per sq. ft. per month of the flat in question. He also could not say as to whether rate of rent of falt was Rs.200/- per sq. ft. per month at the time of filing of the present suit.
10. It is pertinent to mention here that during the course of trial, defendant has handed over the possession of the suit flat to the plaintiffs on 24.06.2002 and this fact has been duly reflected in the order dated 01.11.2002 passed by Hon'ble High Court of Delhi while disposing IA no.11093/2000.
11. I have carefully heard the rival submissions of the counsels for the parties. I have also thoroughly perused the entire relevant material placed in the file.
My issue wise findings are here as under:-
12. ISSUE No.1:-
Whether the suit is maintainable in its present form? As per contentions of Ld. counsel for defendant, the suit as filed by the plaintiffs is not maintainable because the plaint of the suit has been signed by both the plaintiffs however, it is verified by plaintiff no.1 only. Thus it is not properly verified. Secondly, in this case, none of the plaintiffs appeared in the witness box as a witness despite of the fact that they are very much available and thirdly, the plaintiffs have not approached the court with clean hand as they have suppressed the material facts that in the year 2003 they filed a suit no.321 of 2003 praying for payment of Property Tax and in the said suit they are relying upon the unregistered lease deed dated 16.06.1989. However, in the present suit the plaintiffs are making a contradictory allegation that the unregistered lease deed can not be relied upon. Hence the suit as filed is a sheer abuse of process of law. On the other hand according to Ld. Counsel for plaintiff the suit is maintainable. The plaint is properly signed and verified. Both the plaintiffs had full knowledge of the facts as well as of the case and the unregistered sale deed was signed by them personally. PW Mr. S. Khanna is the husband of plaintiff no.1 and is the son of plaintiff no.2 and being male member of the family was also actively involved with the plaintiffs' case. He has personal knowledge of the facts also. After giving due thoughts to the rival submissions of the counsels for the parties I have come to the conclusion that the suit as filed by the plaintiffs is maintainable. Both the plaintiffs have duly signed the plaint and the fact that the same is verified by only plaintiff no.1 is not very material, rather it is a mere technical irregularity and the same is not fatal. Both the plaintiffs and PW-2 Sh. S. Khanna being members of the same family had full personal knowledge of the transactions and the documents were signed by the plaintiffs who were landladies. The male member PW-2 who is husband of plaintiff no.1 and son of plaintiff no.2 was also actively involved in the negotiations. Both the plaintiffs had executed separate Power of Attorney in his favour which are Ex.PW2/J & Ex.PW2/K respectively and they were duly proved in evidence by PW-2, so it can not be said that the suit of the plaintiff is not maintainable. Accordingly the issue is decided in favour of the plaintiffs and against the defendant.
13. ISSUE No.2:-
Whether the plaintiffs individually have the right to determine the tenancy of the defendant?
As per the contentions of Ld. Counsel for plaintiffs, the plaintiffs individually had the right to determine the tenancy of the defendant and accordingly, they had validly terminated the tenancy by service of notice as required U/s 106 of Transfer of Property Act.
On the other hand according to Ld. Counsel for defendant, the plaintiffs premises are not identifiable. The suit is in respect of the flat no.306 of the third floor of Antriksh Bhawan but in fact there is no such flat on the third floor of Antriksh Bhawan. The plaintiffs may have owned an area of 662 sq. ft. on the third floor of Antriksh Bhawan but exactly which part by metes and bounds is not proved. Their area is only a part of third floor of Antriksh Bhawan and the tenancy of the defendant is for the entire third floor including the area of the plaintiffs, taken by the defendant from all the owners of the third floor, therefore, the only way the tenancy of the defendant could be terminated is by all the owners of the third floor of Antriksh Bhawan. It is also claimed by Ld. Counsel for defendant that the plaintiffs have admitted in their cross examination that other persons had come to sign the lease in favour of the defendant. The electricity bill also shows that there was one meter in the name of the defendant for the entire third floor of Antriksh Bhawan. Thus the defendant had a joint tenancy in respect of the entire third floor and it could be terminated only by all the owners of third floor together. I have carefully heard the contentions of Ld. counsels for the parties in respect of the present issue.
The suit premises is a specific identifiable flat purchased from reputed Builders who had followed instructions of the Petitioners from time to time as a matter of their internal arrangement. The carpet area of the flat was fixed while the super area was fixed by the Builders upon completion of building and services like fire refuge area etc. Besides the above, there is no assertion on the part of the defendant that there was any clause in the lease deed executed between the parties that the plaintiff would not be entitled to terminate the lease until the lease deeds of other tenants were also terminated. Further, there is no evidence at all that the plaintiff ever agreed that his lease deed is to be coterminous with the tenancy of the other landlords. The plaintiffs have led evidence which established that there was no such clause/or term. The plaintiffs are not co-owners with other flat owners on the same floor but are separate owners of the suit flat. Consequently, they are entitled to lawfully terminate the lease of their flat. The plaintiffs have no right over the flats of the other flat owners and no other flat owner has any right over the flat of the plaintiffs. Admittedly, there was no agreement with the defendant that their lease could not be terminated without terminating the lease of flats of other landlords. If so was the intention, defendant would have entered into a registered lease deed incorporating therein such restrictive clauses as is normally done where such is the intention of both the parties. Further, the defendant in Written Statement pleaded that he was to restore the tenanted premises in original condition as per the approved plans of the builder with all fixtures, fittings, toilets and partition walls of flats. Secondly, the defendant admitted that the lease was for a specified area of 662 sq. ft. The plaintiff only claims damages for use and occupation at market rate for the flat having area of 662 sq. ft. Thirdly, DW-1 in cross specifically inter alia stated:-
''....... I do not remember exactly when the different flats were demolished and one floor was made, but it was done soon after execution of the lease deeds. It must have been taken few months to convert the flats into one floor.........'' The above statement clearly proves that the flats were leased out and were admittedly demolished after lease and hence the property leased was 100% identifiable. Further the Site Plan Ex.PW2/M clearly demarcates the leased property which is situated in between flats no.304 and 308. Even otherwise, the flat is situated in a most modern multi-storeyed building in the heart of capital, the plans of which were approved by Government Authorities, each flat is duly demarcated with specific location, are, entrance and amenities etc., and is duly assessed to Municipal Taxes as a specific identifiable flat by metes and bounds. Thus, the premises of the plaintiffs are fully identifiable and therefore, the plaintiffs individually have the right to determine the tenancy of the defendant. Issue stands decided accordingly.
14. ISSUE No.3:-
Whether the tenancy of the defendant has been validly terminated by service of notice as required under Section 106 of the Transfer of Property Act?
According to Ld. Counsel for defendant, the tenancy of the defendant, which was a fixed term tenancy of five years each and had two options of renewal of five year each and as such its possession is protected for fifteen year from 1990, was not validly terminated by the plaintiffs. Moreover, even if it is assumed that the tenancy of the defendant was being an unregistered lease deed and was a month to month tenancy even then it was not validly terminated for the following reasons:-
(i).the plaintiffs sent two notices of termination.
(ii).The contents of first notice itself amounting to waiver of the notice.
(iii).The second notice of termination amounting to waiver of first notice of termination.
(iv).The second notice of termination was defective as it did not contain the ingredients of Section 106 Transfer of Property Act.
It is also stated that the tenancy of the defendant was protected U/s 53 A of the Transfer of Property Act and above all flat no.306 was not in existence in respect of which the tenancy was allegedly terminated by the plaintiffs. It is claimed by the defendant that it is a settled law that even a month to month tenancy is terminable under a notice U/s 106 Transfer of Property Act and in this case since no valid notice was given to the defendant, so its tenancy was never terminated.
On the other hand according to Ld. counsel for the plaintiffs, since the plaintiffs individually had the right to determine the tenancy of the defendant, so they had validly terminated the tenancy by service of notice as required U/s 106 of Transfer of Property Act.
I have heard the counsels for the parties carefully.
According to the plaintiffs they are the landlords and defendants were the tenant of flat no. 306 and there was no registered lease deed and the lease was for the period exceeding one year. Thus in the absence of registered lease deed, the lease was deemed to be lease from month to month which could be terminated by service of notice of termination as per section 106 of the Transfer of Property Act. Therefore, the plaintiffs had the full right to terminate the tenancy.
The first point to be considered in this case is whether the tenancy of the defendant was validly terminated through notice of termination of tenancy in the year 1995. On this point, service of notice of termination of tenancy is not disputed by the defendant. The Hon'ble High Court of Delhi in the case of Sohan Singh Anand & Ors. Vs. State Bank of Patiala 102 (2003) DLT 6 as to validity of notice inter alia stated:
''19. I need not to dwell much on this aspect as held by the Apex Court in the case of Bhagan Das Aggarwal Vs. Bhagwan Das Kanu, reported in 1977 (2) SCC 646, Vol II, a notice to quit must be construed not with a desire to find faults in it which would render it defective but it must be construed ut res magis valeat quam pereat, and that the validity of a notice to quit ought not to turn on splitting of straw ............... there need not be any hair splitting in relation to notice of eviction....'' ''..... 22. It may be pertinent to mention here that the plaintiff had issued another notice dated 11.09.1989 regarding which the defendant has made out several contentions regarding shortcomings therein..............
.......23. In my view the position is well settled as held by the Apex Court in the case Raptakos Bret and Co. Ltd. Vs. Ganesh Property, AIR 1998 SC 3085, that cause of action is to culled out on a conjoint reading on several paras of the plaint .......... I find that in para 6 and 7 of the plaint there is a specific reference to the notice to quit dated 09.05.1989, and the same would suffice to meet the requirements of law ...................'' The defence of the defendant in substance was that flat no.306 had been taken on lease from petitioner landlords and the tenancy was renewed. However, it is the admitted case of both the parties that there was no registered lease deed between the parties. The legal position is well established that an unregistered lease deed can at best create a tenancy for a period not exceeding 11 months. And in the absence of a registered lease deed, the lease can be terminated by service of notice of termination of tenancy as per section 106 of the Transfer of Property Act. This has been done in this case.
In the case of Bharat Petroleum Corporation Ltd. Vs. Khaja Midhar Noor & Ors. AIR 1988 SC 1470, page 1472 para 5 wherein it was laid down inter alia as under:-
''In view of paragraph 1 of S. 107 of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease shall be deemed to be ''lease from month to month''.
It is clear from the language of S. 107 of the Act which postulates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub-leasee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month to month. The High Court so found.
We are of the opinion that the High Court was right.'' It is also well established that there can not be any estoppal against the statute. On similar facts, the Hon'ble High Court of Delhi in the case of I.T.D.C. Ltd. Vs. M/s Chander Pal Sood & Son 84 (2000) DLT 337 (D) page 342, para 14, 5th line, observed and held:-
''Therefore, lease has to be construed as a lease of month to month basis. The same could thus be validly terminated by giving 15 days notice. The plea of the appellant that the plaintiff was estopped from terminating the tenancy cannot be sustained as there cannot be any estoppal against the statute.'' The lease deed being unregistered, it can not firstly be looked into at all for the purpose of duration of tenancy. Under law, it was month to month tenancy which has been validly terminated. Consequently, they are entitled to lawfully terminate the lease of their flat. There is no evidence on this point by the sole defendant witness. DW-1 did not make any statement whatsoever about the notice and has stated inter alia:
''........ The negotiation and transactions regarding lease of property in suit had not taken place in my immediate presence..'' Further, no oral evidence can be looked into as admittedly lease had been reduced to writing which does not contain any restrictions as contented by the defendant. The notice for termination of tenancy has been duly proved because as per evidence of the defendant it is admitted that the notice was served. The lease deed was unregistered and could under law have been terminated by serving notice U/s 106 of Transfer of Property Act.
So far as the contentions of Ld. counsel for the defendant that the notice stood waived is concern, the same is factually as well as legally not correct. It was clarified in the reply dated 13. 05.1995 Ex.PW2/F sent by the plaintiff, para 4, ''If hereafter any amount is received, the same shall be appropriated without any further reference, towards damages for use and occupation only, without waiving the notice terminating the tenancy already served.'' This position regarding non waiver of notice was asserted in para 7 of the plaint as well. The position was also reaffirmed in the replication.
In the case of Bank of Rajasthan Ltd. Vs. M/s Sarin & Co. 83 (2000) DLT 79 (DB), the Hon'ble High Court of Delhi observed in para 23 to 25 as under:-
''23. The preponderance weight of authorities of several High Courts shows that mere acceptance of rent by the landlord from the tenant, after service of notice of quit and institution of the suit by itself would not constitute waiver of notice, or proof of the intention of the landlord to renew the lease.
Reference can be made to Ilahibux Vs. Munir Khan, AIR 1953 Nagpur 219; Ram Lal Vs. Sardari Lal, AIR 1968 J & K page 22;
Moti Lal Vs. Basant Lal & Anr., AIR 1956 Allahabad 175; Purohit Lakshmanchandji Vs. Vetcha Sree Ramchandra Murty, AIR 1976 A.P. 428 and Ramjilal Vs. Gulabrao, AIR 1979 Bombay 44.
24. Two decisions relied upon appellant/ tenant also do not help them. In Tayabali Jaferbhai's case (supra) even second notice to quit the tenancy was treated as subsisting, further and even after amendment of the plaint was allowed rent was claimed. It was under these circumstances the Court observed that the first notice of termination of tenancy stood waived. Similarly, in Smt. Kanta Manocha's case (supra) the plaintiff after service of notice to vacate continued accepting rent from the defendant lessee and allowed him to remain in possession, which is not the case here.
25. In this case as observed above, after the expiry of the period of the notice of termination of the tenancy on 31st January, 1997 suit was instituted within a period of two months, which was being vigorously perused. Thus, the conduct of respondent-
landlord accepting the rent in January, 1998 i.e., after about twelve months, ipso facto does not establish that his intention was to renew the lease. Attending circumstances do not show the intention of the respondent/ landlord was to waive of the notice to quit No intention to renew or revive the tenancy can be spelt out on the part of respondent/ landlord or inferred from the mere use of the word ''rent'' in the above said letter dated 12.01.1998. The findings of the Trial Court are thus fully justified on the basis of the material on record.'' The material on record thus fully establishes that the landlord never intended to waive the notice or renew or revive the tenancy. On the other hand, the landlord continued to prosecute the suit for recovery of possession as well with all due diligence. The plaintiffs also moved IA 10254 of 1994 dated 29.09.1997 wherein it was mentioned in para 5 and 6 as under:-
''5. That in the facts and circumstances, it is just and proper that orders may kindly be passed directing the defendant to revalidate those cheques, or issue fresh cheques, for payment of the amount payable in respect of the premises in suit without prejudice to the rights of the plaintiffs, and without waiving the notice.
6. That similarly, the plaintiffs make it clear that in case future cheques are received the same shall be deposited without prejudice to the merits of the case and without waiving the notice; and it is also prayed that the defendant may be directed to pay during the pendency of the suit an amount equal to the rate of admitted rent without prejudice to the merits of the case and the plaintiff may continue to accept the same without waiving the notice.'' The above conclusively establishes the intention of the landlords not to waive notice. The landlord also moved application U/o 12 R 6 CPC IA 11093 of 2000 dated 17.10.2000 for obtaining decree of possession.
Regarding waiver of notice of termination of tenancy it is further submitted that the statement of PW-2 page 1, para 4, on the point of waiver of notice inter alia is as under:-
'' ..... The plaintiffs have not accepted any amount from the defendant after the termination of tenancy. We have not waived the termination of tenancy.
In March, 1995, the market rent for the suit flat was Rs.200/- per sq. ft. per month....'' Also in cross examination PW-2 inter alia stated:-
''....... Plaintiff received some amount from defendant towards damages ....... We have not received any amount from the defendant as rent ...........'' Further, waiver of notice is a question mainly of fact. The defendant pleading waiver has to prove that parties were ad idem in making a new agreement while accepting any amount after service of notice. It is a matter of intention. In order to create a fresh tenancy the acts of the parties must be voluntary and with the definite intention of creating a fresh tenancy.
The Hon'ble Supreme Court of India in the case of Dr. H. S. Rikhi Vs. NDMC reported as AIR 1982 SC 554 even held that, ''the use of the word rent was not conclusive''.
Even in the plaint it is clearly mentioned that any amount paid would be towards damages for use and occupation. In the absence of any evidence from the side of defendant, the version of the plaintiff must be believed and their statements do not establishes that there was any intention whatever to waive the notice.
In East India Syntex Ltd. Vs. Gaurav Mangla 1996 (2) RCR 33 it was held that, ''when the notice terminating the tenancy mentioned that if any rent is paid after termination of tenancy, that amount shall be treated as amount for use and occupation, then acceptance of the amount as rent does not amount to waiver of the notice''.
In this case too, the notice mentioned that any payment would be towards the amount due as demanded on termination of the tenancy. The defendant has not adduced any evidence on the point of alleged waiver. Thus there was no waiver of the notice on the part of the plaintiffs and as such the tenancy of the defendant was validly terminated by the plaintiff by service of notice U/s 106 of Transfer of Property Act. Issue stands decided accordingly.
15. ISSUE No.4:-
Whether the defendant has been paying rent regularly? If so, its effect?
While deciding the issue no.2 & 3, I have already come to the conclusion that the premises of the premises was duly identifiable and therefore the plaintiffs were having right to terminate the tenancy by serving the notice U/s 106 of Transfer of Property Act which they duly got served upon the defendant and the acceptance of the amount sent by the defendant was not the rent rather it was received as the use and occupation charges of the premises in question. Thus it can not be said that the defendant has been paying the rent regularly, rather the amount paid by the defendant to the plaintiffs was being paid to the plaintiffs as the part amount towards the use and occupation charges of the premises in question. Issue stands decided accordingly in favour of the plaintiffs and against the defendant.
16. ISSUE No.5:-
Whether the plaintiffs are entitled to a decree for recovery of possession?
Since admittedly, the possession of the premises in question has already been handed over to the plaintiffs on 24th June, 2002 and the said fact of handing over of the possession of the premises in question is also mentioned in the order dated 01.11.2002 passed by the Hon'ble High Court of Delhi while disposing the IA 11093/2000, so nothing remains in this issue.
17. ISSUE No.6:-
Whether the plaintiffs are entitled to mesne profits? If so, at what rate and for which period?
Since while deciding issue no.2 & 3 I have already reached to the conclusion that the lease stood validly terminated, so the next point to be considered is what should be the quantum of damages for use and occupation/mesne profits.
As per submissions of Ld. Counsel for plaintiff, the plaintiff should be awarded damages for use and occupation on the basis of market rent i.e. rent method. On termination of tenancy the defendant remained in possession as trespasser. What was the fair market rent of the suit premises is a question of fact only? The plaintiffs have adduced evidence of most reliable nature to establish the fair market rent. On the other hand according to the Ld. counsel for defendant since there is in fact no flat no.306 constructed on the third floor of Antriksh Bhawan and no walls were ever put up for any flat on third floor of Antriksh Bhawan and the defendant was in fact the tenant in respect of the entire third floor of Antriksh Bhawan, so the mesne profit, if any, have to be determined for an unidentifiable area ad-measuring 662 sq. ft. on third floor of Antriksh Bhawan. It is claimed that the mesne profit of an unidentifiable area of 662 sq. ft. has to be determined based on similarly situated properties i.e. other unidentifiable areas on third floor of Antriksh Bhawan.
In their support, the plaintiffs have examined two witnesses and filed several documents. The defendant on the other hand choose not to lead evidence on this point. The defendant has not examined any expert or led evidence of market rent during the relevant period. It has only filed the photocopies of unregistered lease deeds which can not be read in evidence. One lease deed relates to January, 1993 which period does not relate to the subject matter. The other lease deed relates to a Kailash Building where fire has taken place and was sealed. DW-1 has admitted that no transaction of any lease deed has taken place personally in his presence from 1993. He also conceded that he has no idea of prevailant market rent in/or around the area in question for the period 1995 till 2002. The plaintiffs in the reply dated 13.05.1995 Ex.PW2/F, had specifically mentioned in para 5 that damages for use and occupation at market rate shall be charged which is Rs.200/- per sq. ft. per month of the super area. The market rate was pleaded in the plaint also. PW-1 a real estate agent and PW-2 affirm interalia that the market rate of the rent of the suit property was as under:-
From 1995 to December, 1997 @ Rs.200/- per sq. ft. per month. From Jan. 1998 to Dec. 1998 @ Rs.150/- per sq. ft. per month.
From 1999 onwards @ Rs.125 to 150 per sq. ft. p.m.
Both these witnesses have stated in their respective
examination-in-chief that the Antriksh Bhawan building is one of the best building in the area because it has a revolving restaurant. In cross examination PW-2 claimed that in the year 1996 the rent for the floors other than ground floor and mezzanine floor in Amabaeep Building was about Rs.200/- per sq. ft. per month.
As per certified copies of registered lease deeds on the record, the rent details are as under:-
Name of tenant & address of the Date of Agreement Rent p.m. per sq. ft.
premises (Rs.) Hanil Bank 16.12.1996 200 Ground Floor GF 3, Ambadeep, 14, K.G. Marg, N. Delhi Shahara India Airlines 16.03.1996 135 1st Floor 102, Ambadeep, 14, K.G. Marg, N. Delhi Shahara India Airlines 28.03.1995 130 1st Floor 101, Ambadeep, 14, K.G. Marg, N. Delhi
As per lease deed filed pertaining to Antriksh Bhawan where suit premises are situated, the details are as under:-
Of the premises Agreement Per sq. ft.(Rs.) Morepen Finance Ltd. 07.06.1995 125 4th Floor 415, Antriksh Bhawan 22, K. G. Marg, N, Delhi - 1. Oswal Chemicals & Fertisers Ltd. 04.10.1997 100 4th Floor 415, Antriksh Bhawan 22, K. G. Marg, N, Delhi - 1. DSP Financial Counul. Ltd. 24.06.1996 100 6th Floor 609, Antriksh Bhawan 22, K. G. Marg, N, Delhi - 1.
Also lease deed of other building in the surrounding area were filed and the rent details of the same are as under:-
Name of tenant & Address of the Date of agreement Rent p.m. per sq. ft.
premises (Rs.) Tata Lucent Techgs. Ltd. 20.03.1998 150 2-3rd Floor, Gopal Dass Bhawan Barakhamba Road, N. Delhi. Allied Signal Inc. 09.04.1996 135 Gopal Das Bhawan, Barakhamba Road, N. Delhi. Tomen Corporation 31.08.1995 130 414 B, World Trade Centre, 4th Floor, Barakhamba Lane, New Delhi. Philips India Ltd. 21.01.1998 130 414 A-B, World Trade Centre, 4th Floor, Barakhamba Lane, New Delhi. Mitsubishi 19.03.1997 117 2nd Floor, Vijaya Building, Barakhamba Road, New Delhi Sunset Resorts 01.11.1997 100 4th Floor, 410, Antriksh Bhawan, 22, K. G. Marg, New Delhi - 1.
The counsel for defendant suggested in the cross examination that the rent for the use premises in November, 1994 was Rs.80/- per sq. ft. per month and in November, 1998 was Rs.55/- per sq. ft. per month but the same was denied by both the witnesses.
On the other hand as per the testimony of DW-1 the defendant had two options of renewal for five years each as per clause 14 of lease deed dated 16.06.1989. According to them the agreed rate of rent was as under:-
From 09.01.1990 to 08.01.1995 @ Rs.26/- per sq. ft. per month From 09.01.1995 to 08.01.2000 @ Rs.35.10/- per sq. ft. per month (i.e. Rs.26 + 35% increase of last rent paid) From 09.01.2000 to 08.01.2005 @ Rs47.39/- per sq. ft. per month (i.e. Rs.35 + 35% increase of last rent paid) The defendant has filed 20 Lease Deed of other unidentifiable areas (like the suit property) and the same are marked as Ex.DW1/2 (colly.). These Lease Deeds are also unregistered. According to the judgment of Kodu Lal Vs. Bihar Lal AIR 1932 Sindh 60 an unregistered Lease Deed is admissible in evidence for collateral purposes such as for ascertaining the fair amount of damages for use and occupation, even though the unregistered lease deed may not be admissible in evidence for purpose of ascertaining agreed rent. Thus the mesne profits, if any, to be granted to the plaintiffs have to be as per the other twenty lease deeds filed by the defendant. These lease deeds show that the rent for the year 1995 was Rs.35.10/- per sq. ft. per month. The plaintiffs have not denied the factum of the execution of those lease deeds. In the present case the original tenancy of the defendant is admitted by the plaintiff and it is only the renewal that is challenged as having become unlawful. In this circumstances, the plaintiff is not entitled to claim mesne profit but only the fair rent and in his said submissions the counsel for defendant has placed reliance upon a judgment reported as (2004) 5 SCC 304 titled as Union of India Vs. Banwari Lal & Sons.
After giving due thoughts to the rival submissions of the counsels for the parties I have come to the considered opinion that the plaintiffs are not entitled to the damages for the use and occupation charges/mesne profits at the rate demanded/claimed by them because they have not given particular evidence in respect of the similarly situated property like the property in dispute. The properties for which the evidence have been brought by the plaintiffs are either located in other buildings or in the other floor of the building and as such they can not be taken as the property of the similar footings. Admittedly, the defendant had taken the entire third floor on rent of which a portion ad-measuring 662 sq. ft. was from the plaintiff. It is also admitted that the similar lease deeds were executed by the owners of the other portions of the third floor of Antriksh Bhawan and plaintiffs have not given any evidence in respect of those similarly located properties which would have been the most relevant evidence for the purpose of determination of the quantum of mesne profits. However, in view of the facts and circumstances of the case and the area, locations, floor, constructions etc., I have come to the considered opinion that the interest of justice will be fully met if the plaintiffs are awarded damages for use and occupation of the premises in dispute/mesne profits @ Rs. 75/- per sq. ft. per month from the date of termination of tenancy i.e. 01.04.1995 till the date of handing over of the possession of the premises in dispute i.e. 24.06.2002. The plaintiff has also demanded the interest on the amount of mesne profits @ 24% per annum. Although, no separate issue has been framed in this regard but in my considered opinion, the plaintiff is entitled for the interest and the same can be awarded to the plaintiff by invoking Section 34 of the Code of Civil Procedure.
Considering the entire facts and circumstances of the case, I am of the considered view that the interest of justice shall be fully met if the plaintiff is awarded interest @ 6% per annum on the amount of damages/mesne profits awarded from 01.04.1995 till realization. Issue stands decided accordingly.
18. RELIEF:-
In view of my findings on the foregoing issues, I hereby pass a decree in favour of plaintiffs and against the defendant thereby awarding damages for use and occupation of the premises in dispute/mesne profits @ Rs. 75/- per sq. ft. per month from the date of termination of tenancy i.e. 01.04.1995 till the date of handing over of the possession of the premises in dispute i.e. 24.06.2002. The plaintiff is also awarded interest on the amount of damages for use and occupation of the premises in dispute/mesne profits awarded @ 6% per annum from 01.04.1995 till realization. However, the adjustment of the amount already paid by the defendant shall also be adjusted from the decreetal amount. The plaintiff is directed to file the deficient court fee, if any, within the period of six weeks from the date of judgment. Cost of the suit is also awarded to the plaintiff.
19. Decree Sheet be prepared after compliance of directions.
20. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 24.12.2007) ADDL. DISTRICT JUDGE
DELHI