Delhi District Court
Mrs. Sheela Khandelwal vs Punjab National Bank (Pnb) on 25 July, 2020
IN THE COURT OF MS. MANJUSHA WADHWA,
ADDITIONAL DISTRICT JUDGE-02, SHAHDARA,
KARKARDOOMA COURTS, DELHI.
CS No. 1879/2016
Old CS No. 1090/2007
CNR No. DLSH01-000405-2016
In re:
Mrs. Sheela Khandelwal
W/o Sh. P.S. Khandelwal,
Apartment B-13,
9, Raj Narain Marg,
Civil Lines, Delhi-110054 ........Plaintiff
Versus
Punjab National Bank (PNB)
A body corporate constitute
under the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970
having its Head Office at
7, Bhikaji Cama Place,
New Delhi
And having a branch at
Shahdara
Shanker Market, Katra Gajju,
Delhi Gate, Shahdara,
Delhi-110032 .......Defendant
Date of institution of the suit : 17.05.2007
Date on which arguments were heard : 25.07.2020
Date of pronouncement of judgment : 25.07.2020
JUDGMENT:
1. This is a suit for ejectment, recovery of damages and mesne profits filed by the plaintiff against the defendant.
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2. The case of the plaintiff, as set out in the plaint, is that the plaintiff is owner of the building bearing Municipal no.V/1 & V/1A, Katra Gajju, Delhi Gate, Shahdara, Delhi-110032. The defendant bank is a body corporate con- stituted under the Banking Companies (Acquisition and Transfer of Undertak- ings) Act, 1970. It is stated that on 20.07.1985, the defendant sent a letter to the plaintiff proposing to take on rent a portion admeasuring 3400 sq. ft each carpet area on the ground floor and first floor of the aforesaid property. Pur- suant thereto, an Agreement-to-let was executed on 03.08.1985 between the parties and as per the said Agreement-to-let, the defendant agreed to pay rent at the rate of Rs. 3.25 per sq. feet per month for the ground floor and Rs. 3 per sq. feet per month for the first floor of the aforesaid property and that the de- fendant bank had the option of renewal of tenancy for two further term of seven years with an increase in rent of 10% at the expiry of each term of seven years. The said agreement could not come into force as the proposed area on the first floor was never constructed by the plaintiff. Thereafter, the plaintiff let out to the defendant a total carpet area admeasuring 4889 sq. feet on the ground floor of the building bearing Municipal no.V/1 & V/1A, Katra Gajju, Delhi Gate, Shahdara, Delhi-110032 having a clear height of 14 feet in- side the said premises as shown in red colour in the site plan(hereinafter re- ferred to as 'suit premises'), at a monthly rent of Rs. 15,889.23/-. However, no lease deed was executed between the parties in respect of the suit premises. Initially, the rent was fixed as Rs. 15,889.23/- per month, which was later on enhanced to Rs.17,478/- per month and with effect from 01.07.1999, the rent was further enhanced to Rs. 19,226/- per month which the defendant was paying till 31.07.2006.
3. The plaintiff has further pleaded that the tenancy between the parties was on month to month basis. On 12.06.2006, the plaintiff sent a legal notice to the defendant for terminating the tenancy, which was duly replied by the de- fendant vide reply dated 10.07.2006. The plaintiff sent rejoinder dated CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 2 of 20 15.09.2006 to the defendant which was further replied by the defendant vide reply dated 10.10.2006. On 11.12.2016, the plaintiff sent another legal notice whereby the plaintiff put into the notice of the defendant that the market rate of rent in the area got enhanced and asked the defendant to vacate the suit premises and to pay the damages at the enhanced rate for the use and occu- pation of the suit premises.
4. The plaintiff has further pleaded that after termination of monthly ten- ancy and issuance of legal notices, the defendant neither vacated the suit premises nor paid mesne profits/damages for the unauthorized use and occu- pation thereof. It is further stated that during the tenure of tenancy, the defen- dant had caused damages to the property viz. fire broke out twice in the bank- ing hall; the defendant had been using a portion of the suit premises as can- teen/Dhaba despite objection of the plaintiff; the bank had placed generator set inside the suit premises, which caused smoke, vibration and noise in the building; the bank had stored and installed open/vented type lead batteries emitting toxic and hazardous fumes inside the premises to run UPS system. The plaintiff further alleged that he had to spend more than Rs.5.00 Lacs for restoration of suit premises but she is claiming only Rs. 1.00 Lac towards damages caused to the suit premises due to negligence of the defendant.
5. The plaintiff has further pleaded that since the defendant is in wrongful occupation of suit premises consisting of 4889 sq. ft carpet area on the ground floor, the defendant is liable to pay an amount of Rs.15,64,480/- to the plaintiff as mesne profits viz. Rs.5,86,680/-@ Rs.30 per sq. feet for the period of 01.08.2006 to 30.11.2006; Rs.12,22,250/- @ Rs.50/- per sq. feet per month for the period of 01.12.2006 to 30.04.2007 and Rs.1.00 Lacs as damages caused to the suit premises, which amounted to Rs. 19,08,930/-. However, the plaintiff restricted his claim to Rs. 19,00,000/- towards mesne profits and dam- ages for the period ending 30.04.2007 alongwith pendentelite and future sim-
CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 3 of 20 ple interest @ 15% per annum. The plaintiff also sought recovery of posses- sion of the suit premises from the defendant alongwith pendentelite and future mesne profits at the prevailing rate, as per Order 20 Rule 12 CPC.
6. In the written statement, the defendant took the preliminary objections interalia that the lease agreement was for a period of 21 years and not on month to month basis; that the plaintiff has been negligent in performing her part of the contract and failed to execute the registered lease deed despite re- peated requests and reminders by the defendant, and that the present suit is only an attempt to unduly increase the rent without any basis.
7. On merits, though the defendant admitted tenancy under the plaintiff, the defendant stated that the term of the lease was 21 years during which the defendant was entitled to use and enjoy the suit premises without any interfer- ence from the plaintiff. It has been further stated that the defendant asked the plaintiff many a times to register the said lease deed, but the plaintiff failed to do so inspite of being reminded time and again in this regard. The defendant denied that the tenancy was on month to month basis. The defendant stated that it had always been ready and willing to perform its part of the contract and was protected under section 53A Transfer of Property Act. The defendant bank further alleged that it was paying rent at the rate of Rs.19,226/- per month to the plaintiff and by way of legal notices sent by the plaintiff, the plain- tiff has been demanding exorbitant rent though the suit premises is neither sit- uated at the main road nor has any amenities available; there is garbage stor- age of MCD near the main gate, foul smell of which makes difficult for the bank to run its business; there is no direct entry to the suit premises and it has inadequate or no ventilation. The defendant denied the claim of damages by stating that no damage, whatsoever, has been done to the suit premises. The defendant further stated that the plaintiff has not done anything for renovation or repair of the suit premises due to which it has suffered irreparable loss and CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 4 of 20 injury. The defendant denied its liability to pay Rs.19.00 lakhs on account of damages and mesne profits for the period ending 31.03.2007. The defendant has thus prayed for dismissal of the present suit.
8. On 26.09.2007, Ld. Counsel for the plaintiff submitted that he does not want to file replication and therefore admission/denial of documents was car- ried out. The defendant bank admitted seven documents of the plaintiff as Ex. P-1 to Ex. P-7, but denied contents of Ex. P-2, Ex. P-4 and Ex. P-6. On 27.03.2008, the following issues were framed by Hon'ble High Court of Delhi where the suit was then pending as :-
1 Whether the lease in respect of suit premises in favour of the defen-
dant was for a period of 21 years as alleged in para no. 2 of the pre- liminary objections of the written statement and if so, its effect ?OPD 2 Whether the plaintiff is entitled to a decree of possession in respect of suit premises against the defendant? OPP 3 Whether the plaintiff is entitled to damages and mesne profits for use and occupation of the suit premises by the defendant after termina- tion of its lease and if so, at what rate and for which period?OPP
9. In support of her case, the plaintiff has examined her husband/attorney Sh. Prem Shanker Khandelwal as PW-1 and Sh. Subhash Khandelwal as PW-
2. PW-1 led his evidence on affidavit testifying the contents of plaint on oath. He placed reliance on the following documents as:-
(i) Power of Attorney executed by the plaintiff in his favour as Ex. PW- 1/1,
(ii) Site plan of the suit premises as Ex. PW-1/2,
(iii) Agreement-to-Let dated 03.08.1985 as Ex. P-1 (admitted by the de-
fendant),
(iv) Legal notice dated 12.06.2006 as Ex. P-2 (admitted by the defendant),
(v) Reply dated 10.07.2006 to the legal notice dated 12.06.2006 as Ex. P-
3 (admitted by the defendant),
(vi) Rejoinder dated 15.09.2006 to the reply dated 10.07.2006 alongwith postal receipts as Ex. P-4 (admitted by the defendant),
(vii) Reply dated 10.10.2006 to the rejoinder dated 15.09.2006 as Ex. P-5 (admitted by the defendant), and CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 5 of 20 (Viii) Notice dated 11.12.2006 alongwith postal receipt as Ex. P-6 (admitted by the defendant), (Ix) Reply to legal notice dated 11.12.2006 as Ex. P-7(admitted by the de-
fendant),
10. On the other hand, the defendant examined Sh. Suresh Kumar Ahuja, Manager of the defendant as DW-1 in its defence. He also led evidence on af- fidavit and proved the following documents as:-
(i) Copy of cheque bearing no. 025540 dated 26.07.2010 for a sum of Rs.
6,01,435/- issued to the plaintiff as Mark A,
(ii) Statement of account of rent paid to the plaintiff since 08.09.2006 to 31.08.2009 as Ex. PW-1/1, and
(iii) Postal receipts in respect of dispatch of the abovesaid cheque to the plaintiff as Ex. PW-1/2,
11. Written Submissions have been filed on behalf of both the parties. The issue-wise finding is given in the succeeding paragraphs.
Issue No. 1:-
"Whether the lease in respect of suit premises in favour of the de- fendant was for a period of 21 years as alleged in para no. 2 of the preliminary objections of the written statement and if so, its effect ?OPD"
12. Onus to prove this issue was on the defendant. It was for the defendant to prove that lease of the suit premises was for a period for 21 years and not on month to month basis as alleged by the plaintiff. It is submission of ld. Counsel for the defendant that despite several correspondences, the plaintiff failed to execute a registered lease deed. On the other hand, ld. Counsel for the plaintiff submitted that lease deed was neither executed nor registered be- tween the parties, as such, tenancy of the defendant was on month to month CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 6 of 20 basis. It is further submitted that no correspondence as alleged by the defen- dant requesting the plaintiff to execute registered lease deed has been sent and produced on record.
13. The admitted document between the parties is agreement to let dated 03.08.1985 Ex.P-1, which is a document whereby as per clause 9, the parties have agreed to enter into a lease deed to be executed at the time of handing over of possession of suit premises to the defendant. Relevant paragraphs 8 and 9 of agreement to let Ex.P-1 are reproduced hereunder as :-
"8. That the initial lease of the Bank premises will be for 7 years with two options of 7 years each, in favour of the bank to continue in possession with 10% increase in rent after every 7 years of lease agreement, other terms and conditions remaining the same.
9. That the regular lease deed shall be executed by the party of the second part at the time of handing over the possession of the premises to the party of the first part right without subletting clause and the agreement of the execution of the said lease including the payment of the stamp duty shall be borne by the landlady."
14. It is admitted case of the parties that pursuant to agreement to let dated 03.08.1985 Ex. P-1, lease deed was not executed between the parties. It is case of the defendant that it was always willing to execute a registered lease deed but the same was deliberately avoided by the plaintiff. The defendant fur- ther states that it sent several correspondences and made telephonic conver- sations with the plaintiff/her husband regarding execution of registered lease deed, however, to no avail. In other words, the defendant bank itself admitted that no written lease deed was executed between the parties. Needless to say, agreement to let dated 03.08.1985 Ex.P-1 whereby the parties had agreed to enter into a lease deed at the time of handing over of possession of suit premises by the plaintiff, has no consequence as it only infers arrange- ment between the parties to execute lease deed at later point of time.
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15. During cross-examination, PW1 denied that the suit premises was given to the defendant on lease for 21 years. He further denied that lease of suit premises was in terms of Ex. P-1. He volunteered that agreement was in re- spect of ground floor and first floor and first floor was never constructed. He further testified that the premises let out to the defendant was situated on the ground floor including 8 shops, which is not a part of the agreement Ex.P-1. Testimony of PW1 envisages that first floor was never constructed and there- fore the lease of suit premises was not in terms of agreement Ex.P-1. Ld. Counsel for the defendant has drawn attention of PW-1 to clause no. 9 of agreement to let Ex.P-1 and put a specific question that according to said clause, the plaintiff was bound to execute lease deed after handing over pos- session but the plaintiff failed to execute the lease deed despite request of the defendant. In reply, PW-1 denied the same and testified that no request was ever made in this regard. He further testified that the defendant had occupied the hall and 8 shops adjacent to hall but no lease deed was ever executed in respect of tenancy of the suit premises.
16. The defendant has also not filed any correspondence as alleged in para 2 of preliminary objections of its written statement whereby request was made to the plaintiff/ her husband regarding execution of registered lease deed. As per Section 107 of Transfer of Property Act, 1882, a lease of immovable prop- erty from year to year basis or for any term exceeding one year, or reserving yearly rent, can be made only by a registered instrument. Therefore, in order to establish that the lease was for a terms of 21 years, it was required to be executed in writing and registered as per law. In the absence of written regis- tered lease deed, section 106 of Transfer of Property Act, 1882 provides that the lease of suit premises shall be deemed to be a lease from month to month basis terminable, on the part of either lessor or lessee, by 15 days' notice.
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17. In the instant case, the lease deed was never executed between the parties and therefore, question of registration does not arise. In the absence of registered lease deed, the defendant has not been able to establish that the lease in respect of suit premises in its favour was for a period of 21 years. Ac- cordingly, this issue is decided against the defendant and in favour of the plaintiff.
Findings on issue no. 2 Whether the plaintiff is entitled to a decree of possession in re- spect of suit premises against the defendant? OPP
18. Onus to prove this issue was on the plaintiff. It is admitted case of the parties that during the pendency of present suit, the defendant had handed over possession of suit premises to the plaintiff on 07.11.2009 vide posses- sion letter, which was without prejudice to rights of the plaintiff. Accordingly, this issue was not pressed by the parties during the course of hearing and therefore, no finding is returned on this issue.
Findings on issue no. 3 Whether the plaintiff is entitled to damages and mesne profits for use and occupation of the suit premises by the defendant after ter- mination of its lease and if so, at what rate and for which period ? OPP
19. Onus to prove this issue was on the plaintiff. As per terms of the agree- ment to let dated 03.08.1985 Ex P-1, the plaintiff had agreed to let out ground floor and first floor of the aforesaid property to the defendant after carrying out necessary construction, addition/ alteration, remodelling and renovation etc. of the premises as per specification of the defendant and it was agreed that rate of rent for 3400 sq. feet at the ground floor will be Rs. 3.25 per sq. feet of car- pet area per month and rate of rent for 3400 sq. feet at the first floor will be Rs. 3.00 per sq. feet of carpet area per month, for a period of 7 years with op-
CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 9 of 20 tion of 2 renewal for the same period with periodical increment of 10% every time.
20. According to the plaintiff, the aforesaid agreement to let dated 03.08.1985 Ex P-1 could not be given effect to as the proposed area on the first floor was never constructed by the Plaintiff and the said agreement was never registered. It is submitted that the defendant was inducted as a tenant in suit premises with respect to total carpet area admeasuring 4889 sq. ft. on the ground floor only having a clear height of 14 feet at a monthly rental of Rs. 15,889.23p. It is further submitted that initially the rent was fixed at Rs.15,889.23/- per month but thereafter the rent was increased to Rs. 17,478/- per month and was further enhanced to Rs.19,226/- per month with effect from 1st July 1999, which the defendant had paid for the period ending 31st July 2006. It is further submitted that since it was a month to month ten- ancy terminable by 15 days' notice, the tenancy of the defendant was termi- nated vide notice dated 12.06.2006 Ex. P-2 whereby, the defendant was asked to vacate as well as deliver peaceful possession of suit premises to the plaintiff by midnight of 31.07.2006, otherwise pay damages /mesne profits @ Rs. 30/- per Sq ft per month w.e.f 01.08.2006 to the plaintiff. Upon defendant not vacating the suit premises, the plaintiff again vide notice dated 11.12.2006 Ex.P-6 brought to the notice of the defendant about the increase of market rent in the area and as such demanded enhanced damages @ Rs.50 per sq. feet w.e.f. 01.12.2006 till actual handing over of vacant and peaceful posses- sion of the suit premises. However, the defendant bank did not vacate the suit premises which resulted in filing of present suit. The plaintiff has quantified the said damages/mesne profits in para 15 of the plaint as Rs.15,64,480/- viz. Rs.5,86,680/-@ Rs.30 per sq. feet per month for the period of 01.08.2006 to 30.11.2006; and Rs.12,22,250/- @ Rs.50/- per sq. feet per month for the pe- riod of 01.12.2006 to 30.04.2007 plus Rs.1.00 Lacs towards damages caused to the suit premises.
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21. On the other side, it is contention of ld. Counsel for the defendant that the suit premises was constructed about 40 years earlier in a crowded area of East Delhi which required repair, upgradation, modification and replacement of wooden parts, electrical items, plumbing items and even cemented portion, which ruined with the passage of time. He further contended that the plaintiff had not incurred alleged amount of Rs. 5 lacs for repairing and renovating the suit premises and has also not filed any proof in this regard. He further urged that the defendant had already paid entire rent due upto 31.08.2009 amount- ing to Rs. 6,01,435/- as per agreed rate of rent and no further amount is payable. He thus prayed for dismissal of the present suit.
22. The plaintiff in order to prove her case has examined Sh. Subhash Khandelwal as PW-2 besides examining her husband/attorney as PW-1. PW-1 has testified that last paid rent was Rs.19,226/- per month upto 31.07.2006 and thereafter the defendant had not paid any amount. PW-1 has admitted that as per Ex. P-2, the plaintiff had asked for damages/ mesne profis @ Rs. 30 sq. feet. He denied that suit premises is not situated on the main road, rather he testified that it is directly facing the main road having a distance of about 200 feet from the main road without any obstruction in it. He volun- teered that the suit premises is three side open. He denied that the suit premises is 500 metres away from the main road. He denied the suggestion that there is a garbage dustbin of MCD in front of gate of the suit premises. He also denied that there is no parking space in front of gate of the suit premises. He volunteered that 50-100 cars can be parked in front and in the sides of the suit premises. When PW1 was asked to tell the width of the main road con- necting the suit premises, he stated that there is no connecting road. He testi- fied that infact there is a huge open compound in front of suit premises and other side of the compound touches the main road. In response to suggestion given to PW-1 that the suit premises is connected with Bara Bazar Road hav-
CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 11 of 20 ing a connecting road of 15 feet width only, he stated that the building in which the bank's branch is situated is connected with the Bara Bazar Shahdara Road through a paved courtyard of MCD. He further testified that when he filed the suit, he was not having document to support claim of damages @ Rs.30 or Rs.50 per sq. feet, but he could produce some persons, who had rented out the property @ Rs 30/- or near about rent.
23. Another witness Sh. Subhash Khandelwal who entered in the witness box as PW-2 testified in his affidavit Ex. PW-2/A that he offered to take entire building of the plaintiff on rent and building consisted of area of 900 Sq Yds(8100 Sq ft) having big banking hall and about 23 shops besides two stair cases for going to the roof. PW-2 offered to take the entire building of the plaintiff on rent in the year 2006 and 2007 at a monthly rent of Rs. 2,10,000/-. In cross-examination, PW-2 deposed that he had a deal with respect to suit premises and he had offered rent @ Rs.2,10,000/- per month as it was less than the prevailing market rent. However, he denied awareness of any other property in the vicinity fetching monthly rent of Rs.2,10,000/-. He testified that he knows the plaintiff as she is related to him. He admitted that he has not stated in his affidavit that the plaintiff is related to him. He admitted that prop- erty was in possession of the Punjab National Bank in the year 2006-2007. He admitted that the property could not have been leased out to him unless and until it was vacated by the bank. He did not give any written offer regard - ing the rental amount. He denied the suggestion that he is an interested wit- ness. He denied the suggestion that prevailing rate of rent at that time was not Rs.2,10,000/- per month as deposed by him.
24. The plaintiff has also relied upon a letter dated 14.01.2003 Ex. DW1/P- 1, which was sent by the defendant to the plaintiff whereby the defendant had accepted proposal of the plaintiff to take 4000 sq. feet area @ Rs.15 per sq. feet which is calculated to Rs.60,000/- per month. It is also stipulated in the CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 12 of 20 said letter that rent would be enhanced by 20% after span of each of the three terms of 5 years. The plaintiff has also relied upon a lease deed dated 17.06.2009 executed between Sh. N.K. Khanna and the defendant whereby the defendant had taken on lease a carpet area of 4195 sq. feet ( 2275 on Ground floor and 1920 on Basement floor) at 1/235, Khasra no. 417/1 Min. Shri Ram Nagar, G.T. Road, Shahdara, Delhi-110032 @ Rs. 50/- per sq. feet on the ground floor and Rs.40/- per sq. ft. on the Basement Floor for a total term of 15 years from 01.04.2009. It is also stipulated therein that the rent will be enhanced @ 20% on the last paid rent for the subsequent block of five years each. It is submission of Ld. Counsel for the plaintiff that since the de- fendant bank had taken similar premises on rent @ Rs.50/- per sq. feet on the ground floor, the plaintiff is also entitled to damages/mesne profits at this rate.
25. During cross-examination, DW-1 Sh. Suresh Kumar Ahuja, Manager, Punjab National Bank admitted that bank had written a letter dated 14.01.2003 Ex. DW1/P-1 and letter dated 11.07.2003 Ex. DW1/P-2 to the plaintiff. He vol- unteered that letter dated 14.01.2003 Ex. DW1/P-1 was a conditional pro- posal. He further testified that after vacating the suit premises, the bank had shifted to the premises at 1/235, out of Khasra no. 417/1 Min. Shri Ram Na- gar, G.T. Road, Shahdara, Delhi-110032. He further testified that carpet area of said property was 4195 sq. feet (2275 sq. ft. on Ground floor and 1902 sq. ft. on Basement floor) and the bank is paying monthly rent of more than Rs.2.00 Lac. He further testified that premises of Shri Ram Nagar was initially taken on rent of Rs. 1,90,550/-. He admitted copy of lease agreement as Ex. DW-1/P3.
26. The testimony of DW-1 makes it evident that the defendant bank had sent letter dated 14.01.2003 Ex. DW-1/P-2 to the plaintiff whereby it had agreed to pay rent @ of Rs. 15/- per sq ft per month to the plaintiff. Further, DW-1 admitted that after vacating the suit premises, the defendant had taken CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 13 of 20 another property on lease vide lease deed dated 17.06.2009 Ex. DW1/P-3. During the pendency of suit, the defendant had paid an amount of Rs. 6,01,435/- after deduction of TDS from the arrears of rent of Rs. 7,11,362/- upto 31.08.2009 which is also discernible from statement of rent Ex DW-1/1 and copy of Cheque relied upon by the defendant. It has been brought to the notice of the court that the defendant did not pay rent after 31.08.2009 since as per the defendant, it had offered possession of the suit premises on 31.08.2009 which is also noted in order dated 05.07.2010. In this regard, suf- fice is to state that the defendant has not led any evidence that it had offered to handover possession of the suit premises on 31.08.2009, therefore, the lia- bility of the defendant continues till 07.11.2009 i.e. date of handing over of va- cant and peaceful possession of the suit premises to the plaintiff.
27. As stated hereinabove, the plaintiff has asked for damages/mesne prof- its @ Rs.30 per sq. feet for the period of 01.08.2006 to 30.11.2006 and Rs.50/- per sq. feet per month for the period of 01.12.2006 to 07.11.2009 when the suit premises was vacated and its possession was handed over to the plaintiff. During the course of arguments, ld. Counsel for the plaintiff has relied upon following judgments to claim mesne profits as:-
a) M/s. Roshan Lal Vegetable Products Pvt. Ltd. Versus M/s. Param International & Anr., 2011 Lawpack(Del) 52115;
b) Ashok Chopra Versus Syndicate Bank, 2010 LAWPACK(Del) 39941;
c) Anant Raj Agencies Properties Versus State Bank of Patiala, 2010 LAWPACK(Del) 39026;
d) Equipment conductors & cables ltd. Versus Kiran Suneja, 2010 LAWPACK(Del) 41409.
28. The relevant aspect to assess damages/mesne profits is to evaluate the effect of lease deed dated 17.06.2009 Ex.DW1/P-3; letter dated 14.01.2003 Ex. DW1/P-1 and testimonies of PW-1 Sh. P.S. Khandelwal and PW-2 Sh.
CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 14 of 20 Subhash Khandelwal and DW-1 Sh. Suresh Kumar Ahuja, Manager, PNB. Pertinently, PW-2 Subhash Khandelwal during cross-examination admitted that he is related to the plaintiff; he further admitted that he did not give any written offer for rental amount of Rs. 2,10,000/- per month and also admitted that the suit premises was in possession of the defendant, so it could not have been let out to him unless vacated by the bank. The aforesaid admissions of PW-2 especially his being related to the plaintiff and offer given for already let out property, reflect that he was an interested witness.
29. Vide letter dated 14.01.2003 Ex. DW-1/P-2, the defendant bank itself had accepted a proposal of the plaintiff for lease rent @ Rs.15 per sq. feet for a period of 5 years in place of existing rent @ Rs.19,226/- per month. The de- fendant has also agreed to enhance the rent by 20% after every five years. Admittedly, the plaintiff has not brought on record any lease deed of similarly situated properties for the relevant period i.e. from August, 2006 till 07.11.2009 for which the plaintiff has claimed damages.
30. Pertinently, lease deed dated 17.06.2009 Ex.DW1/P-3 is for a period of 15 years with respect of property located in the area of Shri Ram Nagar, GT Road, Shahdara, whereas the suit premises is situated in Katru Gajju, Delhi Gate, Shahdara, Delhi-110032. It is not discernible from the pleadings as well as the evidence led by the parties about the distance between the aforesaid two areas i.e. between Shri Ram Nagar, GT Road and Katru Gajju, Delhi Gate, Shahdara, Delhi-110032. Needless to say, the rate of rent prevalent in the area where suit premises is located and area of Shri Ram Nagar, GT Road, Shahdara where the defendant had ultimately taken the property on rent may be different. The age of construction of the property taken on rent by the defendant bank vide lease deed dated 17.06.2009 Ex. DW1/P-3 has also not been brought on record.
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31. The Hon'ble High Court of Delhi in its judgment reported as 2011(2) ILR (Del) 350 M/s. Roshan Lal Vegetable Products Pvt. Ltd. Versus M/s. Param International & Anr. (supra) has held that for assessing mesne profits, judicial notice can be taken of the market rent and sometimes guess work is also involved. In other words, in the absence of clear-cut and clinching evi- dence emerging on record with respect to rate of rent of similarly located prop- erties in the area where the suit premises is located, the Court has to do some guess work to assess the mesne profits for the relevant period.
32. During the course of arguments, a question was put to Ld. Counsel for the plaintiff to point out the distance between two premises i.e. suit premises and the premises which the defendant had ultimately taken on rent, in response of which, ld. Counsel for the plaintiff has filed Google map through email as per which both the aforesaid premises are at a distance of about one and half kilometers. On the other side, ld. Counsel for the defendant contended that the suit premises was located in very congested area, whereas the premises which has now been taken on rent by the defendant is on the main GT road; having better parking space and is connected to the main road. However, he is not able to tell the age of construction of the current premises which is taken on rent by the defendant.
33. Insofar as age of construction of suit premises is concerned, it was let out to the defendant vide agreement to let dated 03.08.1985 Ex. P-1 which in- fers that the suit premises was constructed atleast about 24 years prior to va- cation of suit premises on 07.11.2009. Nothing has been brought on record as to when and how the plaintiff had renovated and repaired the suit premises during the period when it was in occupation of the defendant bank. The plain- tiff has also not led any evidence to establish that the plaintiff had spent an amount of Rs.5,00,000/- in the suit premises. The age of construction of the CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 16 of 20 premises which has now been taken on lease by the defendant vide Ex DW- 1/P-3 is also not discernible from the evidence led by the parties.
34. Further, the defendant has also taken a plea in the written statement that the suit premises is neither situated at the main road nor has any ameni- ties available; there is garbage storage of MCD near the main gate, foul smell of which had made difficult for the bank to run its business; there is no direct entry to the suit premises and it has inadequate or no ventilation. Pertinently, the plaintiff has not filed replication to rebut the aforesaid averments about the unbefitting location of the suit premises as alleged in the written statement.
35. Nevertheless, the distance between the suit premises and premises taken on rent by the Defendant vide lease deed Ex. DW-1/P3 is about 1.5 Kms as pointed out during arguments which is trivial; the difference in location of the two and no clarity regarding age of construction of the premises taken on rent by the defendant vide Ex DW-1/P3 makes it difficult to assess mesne profits with complete accuracy. The comparison of lease deeds has to be on apple to apple basis. In the absence of lease deed of similarly located premises placed on record, this court has no option but to do guess work in assessing the mesne profits/damages.
36. In nutshell, the factors emerging on record from the analysis of plead- ings, evidence and documents led on behalf of the parties for assessing the mesne profits are as under:-
a) Vide letter dated 14.01.2003 Ex DW-1/P1, the defendant itself had accepted a proposal of the plaintiff to pay Rs.15 per sq. feet per month with enhancement of rent by 20% after every five years;
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b) Vide lease deed dated 17.06.2009 Ex. DW-1/P3 which was effective from 01.04.2009, the defendant had taken another premises in nearby area @ Rs.50/- per sq. feet on the ground floor. However, the rent as reflected in the said lease deed Ex. DW-1/P3 cannot be ac-
cepted in toto in view of the discussion made hereinabove.
c) PW-1 has himself testified that when he filed the suit, he was not having document to support claim of damages @ Rs.30 or Rs.50 per sq. feet, but he could produce some person, who had rented out the property @ Rs 30/- or near about rent. Therefore, as per own case of the plaintiff, rent of similarly situated property was near about Rs. 30/- per sq. ft. per month.
37. In view of foregoing discussion, this Court is of the view that ends of jus- tice would meet if mesne profits/damages @ Rs. 25/- per sq. feet per month for the suit premises consisting of 4889 sq. ft. for relevant period i.e. 01.08.2006 to 07.11.2009 is awarded. The amount of Rs. 7,11,362/- already paid by the defendant would be deducted from the amount of mesne profits/damages awarded to the plaintiff.
38. The plaintiff has also claimed Rs.1.00 Lac towards damages, which have been allegedly caused to the suit premises by the defendant bank. Ac- cording to the plaintiff, the defendant had caused damages to the suit premises as fire broke out twice in the banking hall; portion of the suit premises was being used as a canteen/Dhaba; the bank had placed generator set inside the suit premises, which caused smoke, vibration and noise in the building; the bank had stored and installed open/vented type lead batteries emitting toxic and hazardous fumes inside the premises to run UPS system. The plaintiff alleged to have spent more than Rs.5.00 Lacs for restoration of suit premises but restricted her claim to Rs. 1.00 Lac. The aforesaid pleas for CS No. 1879/2016 Mrs. Sheela Khandelwal v. Punjab National Bank Page no. 18 of 20 claiming damages were refuted by the defendant in the written statement. The defendant has categorically stated that the plaintiff has not done anything for renovation or repair of the tenanted premises in due time for which the defen- dant bank has suffered irreparable loss and injury. The onus to establish dam- ages was on the plaintiff. It was for the plaintiff to establish that she had spent more than Rs. 5.00 Lacs in restoring the suit premises. Pertinently, the plaintiff has not led any documentary evidence to show as to what amount she had spent on restoring the suit premises. Bald averment that an amount of about Rs.5.00 Lacs was spent to restore the suit premises on account of damages caused by the defendant is not suffice in the eyes of law. In the absence of any such requisite evidence, no damages can be awarded on that count.
39. The plaintiff has also claimed interest @ 15% per annum on the mesne profits/damages. As per settled law, interest is the entitlement of a party to whom an amount is due and that under Section 2 (12) of CPC, the definition of 'mesne profits' integrally includes interest which has to be allowed in the com- putation of the mesne profits. Therefore, the plaintiff is also entitled for inter- est on the amount awarded as mesne profits. Since the transaction between the parties was commercial in nature, award of interest @ 8% per annum would meet the ends of justice. Accordingly, interest @ 8% per annum on the aforesaid amount of mesne profits/damages is allowed from the date of filing of the suit till its realization.
Relief:
40. In view of foregoing discussion, suit filed by the plaintiff is decreed against the defendant in following terms:-
a) The defendant shall pay mesne profits/damages at the rate of Rs.
25/- per sq. ft. per month for suit premises comprising of total carpet area of 4889 sq.ft. for the period from 01.08.2006 to 07.11.2009;
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b) The amount of Rs.7,11,362/- which has already been paid by the defendant to the plaintiff towards rent amount upto 31.08.2009, shall be adjusted from the mesne profits;
c) The aforesaid amount of mesne profits/damages shall carry inter- est @ 8% per annum from the date of filing of the suit till realization.
d) Cost of the suit is also awarded in favour of the plaintiff.
41. The plaintiffs are also directed to deposit the deficient court fees, if any on mesne profits. Decree sheet be prepared accordingly.
42. File be consigned to record room.
(Manjusha Wadhwa) Addl. District Judge-2, Shahdara, Karkardooma Courts, Delhi:25.07.2020 Announced through Cisco Webex on 25th July, 2020.
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