Delhi District Court
Ms. Mahima Puri vs Union Of India on 9 October, 2018
IN THE COURT OF PRAVEEN KUMAR: ADDITIONAL
DISTRICT JUDGE-05 :NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI.
CS No.57728/16 (Twenty three year old case)
In the matter of :
1.Ms. Mahima Puri D/o Late Sh. Anup Puri R/o A12, 3rd Floor, 9, Prithviraj Road, New Delhi.
2.Mr. Amit Bhalla S/o Late Sh. Jai Rattan Bhalla, R/o 116, Jor Bagh, New Delhi.
3.Mr. Gian Prakash Puri S/o Late Sh. Devi Dass Puri, R/o 54, Marlborough Court, 4648 The Drive, Hove, BN33JX, U.K.
4.Mrs. Neerja Kolhatkar D/o Late Sh. Braham Prakash Puri, R/o 1 Darlands Drive, Barnet, Hertfordshire, EN52DE, U.K.
5.Mrs. Rashmi Kaura D/o Sh. S L Bawa R/o R2/237, New Raj Nagar, Ghaziabad, U.P
6.Mrs. Ushmi Sethi D/o Sh. S L Bawa, R/o E32, Jungpura Extension, New Delhi. .................Plaintiffs CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.1 of 14 Versus
1. Union of India Through its Secretary Ministry of Urban Development, Nirman Bhawan, New Delhi.
Also at :
Through Collector (Deputy Commissioner) Tis Hazari Court Complex, Delhi.
2. Delhi Financial Corporation Institutional Area, Janakpuri, New Delhi110058. .................Defendants Date of institution of the case : 12.07.1995 Date of arguments : 04.09.2018 Date of judgment : 09.10.2018 JUDGMENT :
1. This is a suit filed by the plaintiffs against the defendants for recovery of possession, mesne profits and arrears of rent along with interest.
2. The case of the plaintiffs, in brief, is that the plaintiffs are the owners/landlords of property bearing no. 6 & 7, known as Saraswati Bhawan, E Block, Connaught Place, New Delhi, admeasuring 25984 sq. feet (in short the 'suit property') which was given on rent vide Lease Deed dated 01.08.94 for the period of 11.11.93 to 10.11.95 to defendant no.1 at a monthly rent of CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.2 of 14 Rs,2,28,255/ with right to sublet the same. It is averred that on defendants committing breach of terms and conditions of the lease deed, the tenancy was terminated vide notice dated 6.3.1995. The plaintiffs have claimed mesne profits from 1.5.95 @ Rs.4,56,510/ (double the rent amount). The plaintiffs have also claimed a sum of Rs.1575627/ being the arrears of rent along with interest @ 18% per annum from the time the amount fell due till the payment is received.
3. Defendant no.1 (tenant) filed written statement and has taken the preliminary objections: (i) that the lease deed is an unregistered document; (ii) that the notices terminating lease are not valid notices; (iii) that there are no outstanding of arrears of rent and
(iv) that the suit is bad for nonjoinder of necessary party. On merits, the relationship of landlord and tenant and rate of rent are admitted. However, it is averred that no valid lease deed was executed. It is denied that arrear of rent amounting to Rs.15,75,627/ is due towards defendant. Defendant no.1 has prayed that suit of the plaintiffs be dismissed as the same is without any cause of action. (Note : The defence of the defendant no.1 was struck off vide order dated 20.12.2000 in FAO (OS) No.95/1999).
4. Defendant no.2 (subtenant) was impleaded as a party in the present suit and has filed the written statement. Defendant no.2 has taken the preliminary objections: (i) that defendant no.2 became lawful tenant qua the suit property; (ii) that no notice u/s 80 CPC was served; (iii) that the defendant no.2 is a lawful tenant w.e.f 7.11.2001 CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.3 of 14 as the defendant no.2 had entered into an oral agreement with the plaintiffs and a new tenancy in its favour had been created qua the suit property and that the suit is barred by the principle of waiver and estoppel. On merits, it is averred that plaintiffs, despite oral assurance to the defendant no.2, have failed to execute the lease deed in its favour. It is denied that rent of Rs.15,75,627/ is due towards defendant no.2. It is averred that defendant no.2 is in settled position of the suit property and is enjoying the same as tenant of the plaintiffs. It is averred that defendant no.2 is paying rent at the rate of Rs.1,82,965/ per month to the plaintiffs. Defendant no.2 has prayed that suit of the plaintiffs be dismissed.
5. Plaintiffs have filed separate replications and have reiterated the facts of the plaint. It is denied that defendant no.2 ever became a tenant in the suit property. It is averred that there is no privity of contract between the plaintiffs and defendant no.2. It is averred that the plaintiffs accepted use and occupation charges from the defendant no.2 for and on behalf of defendant no.1. It is averred that payment was accepted in terms of the order passed by the Court.
6. During the pendency of the suit, defendant no.2 delivered the possession of the property in its possession to the plaintiffs on 5.10.2006.
7. From the pleadings of the parties, following issues were framed on 16.09.2008 :
i) Whether the plaintiff is entitled to recover mesne profits, CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.4 of 14 if so at what rate and for what period and against which defendant?
ii) Relief.
8. Plaintiffs in support of their case have examined Sh. V P Puri as PW1; Mahima Puri as PW2 and Ms. Poonam as PW3.
9. PW1 has deposed on the lines of the averments made in the plaint. During his crossexamination on 11.4.2002, PW1 has denied having received any letter dated 3.12.1999 regarding the poor condition of the basement. He has also denied the suggestion that the suit property was sublet to defendant no.2 with his permission by the defendant no.1. He has also denied the suggestion that the tenancy was not terminated in accordance with law. During his crossexamination on 7.3.2009, he has admitted having executed the lease deeds dated 12.4.99 and 1.8.94, Ext. P13 and Ext. PW1/D1 respectively. He also admitted the photographs Ex.PW1/D2 to Ext. PW1/D15. PW1 also admitted having written letterEx.PW1/D16 (dated 2.6.2001) to the Joint Director (Administration), Directorate of Health Services. He has denied the suggestion that NDMC ever served a notice to carry out repairs in the suit property. He has admitted the letterExt.PW1/D17. He has denied the suggestion that the rate mentioned by him in examinationinchief recorded on 11.12.2001 is exaggerated.
10. PW2 Mahima Puri has corroborated the testimony of PW1. She has proved the various lease deeds of different properties in the area of Connaught Place as Ext.PW2/14 to Ext. PW2/19. During CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.5 of 14 her crossexamination, she has admitted that she did not visit the properties mentioned in para 8 of her affidavit from inside and had seen the same from outside.
11. PW3 is the LDC from SubRegistrar, Vikas Sadan, New Delhi and she has proved the certified copies of the Lease Deeds as Ext. PW2/14 to Ext.PW2/19.
12. Defendant no.2 in its defence has examined Sh. Rajender Kumar as D2W1; Smt. Poonam as D2W2; Sh. Vimal Kumar as D2W3; Sh. Manoj Sagar as D2W4.
13. D2W1 has deposed on the lines of the defence taken by the defendant no.2 and has proved various photographs of the properties including suit property as Ex.PW1/D2 to Ex.PW1/D15. He has also proved the certified copy of the lease deed of the property adjoining the suit property as Ex.DW2/1. During his cross examination, he has admitted that defendant no.2 continued to occupy the suit property till its vacation on 05.10.2006 since it was suitable for carrying on commercial activities. He has also admitted that there is no public toilet or garage opposite the building.
14. The other defence witnesses are formal witnesses who have proved the lease deeds as Ex.PW2/17 and Ex.D2W4/1.
15. I have heard Sh. Jeevesh Nagarath, Ld. Counsel for the plaintiffs no. 1, 3, 4, 5 and 6; Sh. Rajat Navet, Ld. Counsel for plaintiff no.2 and Sh. Sanjay Poddar, Ld. Counsel for defendant no.2.
16. Ld. Counsel for the plaintiffs has contended that plaintiffs CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.6 of 14 are entitled to recover from the defendants, jointly and severally, the mesne profits from the period of termination of tenancy till the recovery of possession on 5.10.2006. According to him, the lease was for 25984 sq feet area at a monthly rent of Rs.228255/. It is contended that the tenancy was terminated vide notice dated 6.3.1995 and this fact has not been denied by defendant no.1. It is further contended that there is no privity of contract between the plaintiffs and defendant no.2. It is further contended that no evidence has been led by the defendants to show payment of arrears of rent and reconciliation of accounts. Lastly, it is contended that plaintiff is entitled to mesne profits at the market rate(s) from 1.5.95 till 5.10.2006 and interest thereon @ 18% per annum. In support of his contentions, Ld. Counsel has relied upon judgments Nopany Investments (P) Ltd v. Santosh Singh (HUF), (2008) 2 SCC 728; V. Dhanapal Chettiar v. Yesodai Amal, (1979) 4 SCC 214; S. Rajdev Singh v. Punchip Associates Pvt Ltd, 145 (2007) DLT 226; Bajaj Electrical Ltd v. Dhruv Devansh Investment & Finance Pvt Ltd, (2011) IV Delhi 343; Santosh Arora v. M L Arora, (2014) 5 HCC (Del) 703; Chander Kirti Rani Tandon v. M/s VXL Lodging N. Boarding Services Pvt. Ltd, 2013 SCC OnLine Delhi 406; M C Agrawal HUF v. Sahara India, 183 (2011)DLT 105; UCO Bank v. Kalicharan & Sons, 127 (2006) DLT 21 (DB); State Bank of Bikaner & Jaipur v. I.S. Ratta, 120 (2005) DLT 407 (DB), Punjab National Bank v. S K Finance Corporation, 2018SCC OnLine Del9915; Basant CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.7 of 14 & Co. v. Osram India Pvt Ltd, 2018 SCC OnLine Del 7776; Crowne Plaza Surya Hotel v. Peregrine Security P. Ltd, 2014 (2013) DLT 510; Naeemuddin v. Babita Rani, 2013 Law Suit (Del) 4448; Oriental Insurance Co. Ltd v. Meenakshi Khosla, 2012 (130) DRJ 319; Baldev Singh v. Shinder Pal Singh, (2007) 1 SCC 341 and M. Chinnasamy v. K C Palanisamy, (2004) 6 SCC 341.
17. On the other hand, Ld. Counsel for the defendant no.2 has contended that the suit property is an old building constructed in the year 1958 and the same was leased out to defendant no.1 from time to time and the last renewal was in the year 1994. The lease commenced w.e.f 11.11.1993 to 10.11.1995 but the plaintiffs terminated the same vide notice dated 9.3.1995 upon defendant no.1 before the expiry of the lease deed. Secondly, it is contended that defendant no.2 got in possession of the suit property comprising of entire ground floor and first floor (except one room on the first floor) upto the period 7.11.2001 and, thereafter, entire building except basement and one room on the first floor till it was vacated on 5.10.2006. Thirdly, it is contended that the suit property is situated on the service lane and even in the year 1996, the fair market rent was Rs.6.25 per sq feet which was increased to Rs.8.10 per sq feet in the year 1999. According to him, defendant no.2 was paying rent @ Rs.8.78 per sq feet w.e.f 1.11.1994 and, thus, there is no scope for other enhancement. Lastly, it is contended that the properties on the backside of the Connaught Place areas do have fetch enhanced rents as CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.8 of 14 has been claimed by the plaintiffs. In support of his contentions, he has relied upon judgments - S. Harpreet Singh Chawla v. CEAT Ltd, 2006 (134) DLT 378 and State Bank of India Vs. Aman Suri, RFA No.170/2007, decided by High Court of Delhi on 20.10.2008.
18. I have gone through the file as well as the judgments cited before me. My issuewise findings are as hereunder:
ISSUE NO.1:
19. The onus of this issue is on the plaintiffs. To prove this issue, plaintiffs have examined 3 witnesses. There is no dispute that the lease deed dated 1.8.94Ext.PW1/D1 was executed between the plaintiffs and the defendant no.1 for an area admeasuring 25984 sq feet at a monthly rent of Rs.2,28,255/. The suit property was let out to defendant no.1 and, as such, defendant no.1 was liable to pay the rent. The Lease Deed dated 01.08.1994 is an unregistered document and, therefore, its terms and conditions cannot be taken into consideration by the court. From the evidence on record, defendant no.1 failed to make payments of the rent in advance which led termination of the tenancy vide notice dated 6.3.95. Even otherwise, lease deed being an unregistered document, it was a month to month tenancy terminable by serving a notice upon the defendants. Thus, the tenancy was validly terminated. There is no privity of contract between the plaintiffs and the defendant no.2. The plea of there being an oral tenancy between the plaintiffs and the defendant no.2 is not believable. There is no pleading about the suit property being disadvantageous. In fact D2W1 CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.9 of 14 in his crossexamination has deposed that defendant no.2 continued to occupy the suit property till its vacation on 05.10.2006 since it was suitable for carrying on commercial activities. It is the settled law that no evidence can be led by the parties which is beyond pleadings. The basement was never let out to defendant no.2. No evidence has been led by the defendants to show payment of arrears of rent and re conciliation of account. There is nothing on record that the defendants settled or gave up their claim for mesne profits. Since the defence of defendant no.1 was struck off and no evidence has been led by it in defence, the defence of defendant no.2 cannot be treated as that of defendant no.1 and/or defendant no.2 cannot defend the proceedings on behalf of defendant no.1.
20. It is the settled proposition of law that when the tenant has occupied the premises without any authority of law then the landlord is entitled to damages/mesne profits at the market rate. It is also settled law that mesne profits and damages for unauthorized occupancy after expiry of tenancy can be granted at a higher rate than the agreed rate of rent after the expiry of tenancy. The plaintiffs have claimed entitlement to rent/mesne profits at the prevailing market rate and have placed on record the lease deeds Ext. PW2/14 to Ext.PW2/19. PW2 has proved varied rates of rent per square feet ranging from Rs.32.40 per sq ft to Rs.152.60 per sq feet for different floors & basement in the area of the Connaught Place vide lease deedsEx.PW2/14 to Ext.PW2/19. The suit property comprises of CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.10 of 14 basement and four floors of the building known as Saraswati Bhavan in the area of Connaught Place, New Delhi. The total area of the suit property is stated to be 25984 sq. ft. The plaintiffs have not given the breakup of the areas of the different floors let out to the defendants. The Lease DeedEx.PW2/14 to Ex.PW2/19 pertain to different floors/basement and in the absence of the breakup of areas of the suit property, it is difficult to ascertain the mesne profits separately for each floor and basement of the building. The parties entered into Lease Deed dated 01.08.1994 w.e.f 11.11.1993 to 10.11.1995 at a monthly rent of Rs.2,28,255/. Thus, the said rent can be assumed to be a fair rent of the suit property till 10.11.1995. In the plaint, the plaintiff has claimed mesne profits from 01.05.1995 @ Rs.4,56,510/ per month (equivalent to double the rent which was paid by the defendant). It amounts to penal rent which cannot be granted by the court. The plaintiffs are entitled to only a reasonable amount/mesne profits/damages. The plaintiffs are, therefore, entitled to rent/damages @ Rs.2,28,255/ per month from 01.05.1995 to 10.11.1995.
21. Section 2(12) CPC defines the mesne profits of property as meaning those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits. It is the settled law that judicial notice of the increase of rents in urban areas can be taken note of by Courts by applying the provisions of Section 57 and 114 of the Evidence Act, 1872 and while calculating the mesne CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.11 of 14 profits, certain amount of guess work by the Court, is inevitable and acceptable. In the present case, considering the fact that the suit property is situated in one of the prime localities in Delhi, i.e., Connaught Place, this Court is of the opinion that it would be just, fit and proper if an increase of 15% per annum over and above the rent of Rs.2,28,255/ be awarded to the plaintiffs for the first period commencing w.e.f. 11.11.1995 to 10.11.1996. For the second year of illegal occupation, i.e., w.e.f. 11.11.1996 onwards, the defendants are held liable to pay an increase of 15% per annum, over and above the rent of Rs.2,28,255/ plus an additional 15% that has been found to be payable for the first year. Same would remain the standard for calculating mesne profits for the subsequent period, till 05.10.2006. For taking this view I am supported with the judgment Chander Kirti Rani Tandon (supra). The defendants are allowed adjustments, if any, for the amounts paid by them as monthly rent(s). The judgments relied upon by Ld. Counsel for defendant no.2 are not applicable to the facts and circumstances of the present case. As there is no privity of contract between plaintiffs and defendant no.2, defendants shall be liable to pay the decreed amount, jointly and severally, to the plaintiffs.
22. As regards the claim of interest, the plaintiffs have sought payment of interest calculated @ 18% p.a. on the awarded amount. The plaintiffs are entitled to interest on the mesne profits as it was because of defendants that the plaintiffs have been deprived of the said CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.12 of 14 amount. The plaintiffs are litigating with defendants since July, 1995 till date i.e. for a period of over 23 years. The plaintiffs have been denied of their money for almost a quarter of a century because of defendants. Had the defendants vacated the suit property and/or made the payment of mesne profits at the earliest opportunity, the plaintiffs would have been able to receive and enjoy the money. The plaintiffs at their own risk continued to retain the possession of the suit property and, thus, are liable to pay interest on the mesne profits. However, given the facts and circumstances of the present case, the court is not inclined to award interest at the rate as claimed by the plaintiffs. Instead, it is deemed appropriate to award simple interest @ 8% p.a. on the decretal amount w.e.f. 01.05.1995 till its realization.
RELIEF.
23. As I have decided issue no.1 in favour of the plaintiffs and against the defendants, the suit of the plaintiffs is decreed against the defendants, jointly and severally, for damages/mesne profits at the rates and period as mentioned in paras 2021 of this judgment for unauthorized use and occupation of the suit property. Defendants shall be entitled to claim adjustments for the amounts paid by them towards rent for the abovesaid period to the plaintiffs. Plaintiffs shall also be entitled to simple interest @ 8% per annum w.e.f. 01.05.1995 on the aforesaid amount for the period of default/delay in making payment of rent/occupation charges, till realization. The plaintiffs shall be entitled to costs.
CS No.57728/2016Mahima Puri and Ors v. Union of India & Anr. Page No.13 of 14 Deficient court fees, if any, be paid. Decree Sheet be drawn accordingly. File be consigned to record room after due compliance. Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2018.10.11 22:13:24 +0530 Dictated and announced in (PRAVEEN KUMAR) open court today i.e. on 09.10.2018. Additional District Judge-05, NDD,Patiala House Courts, New Delhi. (R) CS No.57728/2016 Mahima Puri and Ors v. Union of India & Anr. Page No.14 of 14