Punjab-Haryana High Court
Ashwani Kumar Bansal & Anr. vs . Jai Pal Singh Sibia & Anr. on 13 February, 2014
Rathore Poonam
2014.02.20 10:20
C.M.No.25305-CII of 2011 in/and -1-
I attest to the accuracy and
integrity of this document
C.O.C.P. No. 836 of 2007
C.M.No.25305-CII of 2011 in/and
C.O.C.P. No. 836 of 2007
***
Ashwani Kumar Bansal & anr. vs. Jai Pal Singh Sibia & anr. Present:- Mr. Chetan Mittal, Sr. Advocate with Mr. Kunal Mulwani, Advocate, for the petitioners.
Mr. Jail Pal Sibia, respondent in person with Mr. Bhavnik Mehta, Advocate, for respondent No.1.
Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate, for respondent No.2.
*** By this order, I will dispose of the application of the petitioner to determine the mesne profits.
There are in fact other facets of the case but before determining those issues, I deem it appropriate to decide the issue pertaining to mesne profits for the simple reason that it has been urged by the petitioner that the respondent-Ajay Kumar Jain is in possession of S.C.O.No. 322 (described as half of S.C.O. Nos.321-322) since 2003 (6.10.2003, as per the own showing of the respondent).
The petitioner contends that rent for this premises has not been paid at all since 2003 whereas this fact is seriously controverted by the respondent who says that the rent equivalent to the one which he is paying for the remaining premises i.e. S.C.O.No.321 at the rate of ` 35,000/- has been paid to the petitioner w.e.f. 2006 till March, 2013.
Since this had raised a serious dispute about the period for Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -2- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 which rent had remained outstanding, this Court asked the respondent to furnish the details about the rent paid for both the premises i.e. S.C.O.Nos. 321 and 322. Some material has been furnished in Court today with a copy to the petitioner. The particulars of the same are extracted here-below:-
Sr. No. Demand Draft No Name of the Bank Beneficiary Amount paid and dated Demand draft Canara Bank, Ashwani Bansal Rs.8,40,000/-
No.704148 dated Sector 35-B,
1 19.04.2008 Chandigarh
Demand draft Axis Bank SCO Ashwani Bansal Rs.4,50,000/-
No.070476 dated 343-344, Sector 35-
2 25.11.2009 B, Chandigarh
Demand draft ICICI Bank Ltd. Ashwani Bansal Rs.2,15,000/-
No.150076 dated SCF 21-22, Phase
3 26.11.2009 VII, Mohali
Demand draft HDFC Bank, Ashwani Bansal Rs.10,00,000/-
No.001678 dated Mohali-160058
4 31.05.2010
Demand draft HDFC Bank, Ashwani Bansal Rs.7,85,000/-
No.001684 dated Mohali-160058
5 02.06.2010
Demand draft Axis Bank SCO Ashwani Bansal Rs.2,80,000/-
No. 074906 dated 343-344, Sector 35-
6 02.06.2010 B, Chandigarh
Demand draft PNB, Sector 22-D, Ashwani Bansal Rs.4,20,000/-
No.390832 dated Chandigarh
7 22.11.2011
Demand draft The Federal Bank Ashwani Bansal Rs.2,80,000/-
No.961075 dated Ltd., Sector 38,
8 14.07.2012 Chandigarh
Demand draft Canara Bank, Ashwani Bansal Rs.35,000/-
No.066546 dated Sector 35-B,
16.08.2012
9 Chandigarh
Demand draft The Federal Bank Ashwani Bansal Rs.1,40,000/-
No.970015 dated Ltd., Sector 38,
10 11.01.2013 Chandigarh
Total amount paid Rs.44,45,000/-
The respondent also seriously contested the rate of rent for the premises in dispute i.e. S.C.O.No.322.
A fact that needs to be noticed is that there is no dispute about Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -3- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 the rate of rent pertaining to S.C.O.No.321 which is ` 35,000/- per mensem.
It is also to be noticed that during the course of proceedings in the contempt petition, vide order dated 20.2.2008, this Court had determined ` 1 lac as the amount to be paid. For the purposes of reference, the relevant portion of the said order is extracted here-below:-
"With a view to determine the willful and deliberate disobedience of the undertaking given before this Court and the consequential orders passed thereupon, it appears desirable to obtain a fact-finding report from the civil court as to whether "any oral tenancy in respect of the remaining half portion of the ground floor of SCO No.321-322, Sector 35-D, Chandigarh was entered into between the petitioner and respondent No.2 on 6.10.2003?"
The tenancy of respondent No.2 qua the remaining half portion of the aforesaid ground floor is not in dispute though the parties are not ad-idem on the rate of rent. The disputes half portion of the ground floor, in respect of which respondent No.2 is now claiming oral tenancy, was earlier admittedly occupied by respondent No.1 as a tenant, against whom the ejectment order was passed by the Rent Controller as well as the Appellate Authority and which culminated into a compromise (Ex.C) between the petitioner and respondent No.1 before this Court in Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -4- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 Civil Revision No.4108 of 2002, decided on March 04, 2004.
It is stated that the petitioner has filed execution proceedings against respondent No.1 in which respondent No.2 has also filed certain objections. The Executing Court is also, thus, likely to go into the question as to whether or not respondent No.2 took lawful possession of the half portion of the ground floor of SCO No.321-322 as a tenant, which earlier was admittedly in possession of respondent No.1 as a tenant.
Since respondent No.2, if his plea regarding oral tenancy qua the remaining half portion of the subject SCOs is proved to be false, will be liable to pay mesne profits to the petitioner-landlord, therefore, in order to protect the interest of the petitioner, respondent No.2 is directed to tender the entire arrears of alleged rent/mesne profits within 15 days from today, which shall be paid and received by both the parties without prejudice to their respective rights. Respondent No.2 is further directed to keep on paying a lump-sum amount of Rs.1 lacs per month to the petitioner before the Executing Court on each and every 7th day of the month, failing which his objections shall not be decided on merits." This Court had then gone on to call for a report from the Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -5- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 Executing Court regarding the dispute which has been delineated above and at the cost of repetition, the issue of the respondent being justifiably in possession of half portion of S.C.O.Nos.321-322 i.e. S.C.O.No.322.
The report has also been submitted and is on record whereby the plea of the respondent regarding oral tenancy has been negated. The respondent, however, has objected to the report. In any case, this is an issue which is to be determined when the main petition itself is to be decided.
Suffice it to say that a fact which has been determined and not in dispute is that the respondent is in possession of half portion of S.C.O.Nos. 321-322 since 2006 ( S.C.O.No.322).
The order of this Court determining `1 lac as the rent was then taken up in appeal by the respondent and during the appellate proceedings, this Court directed the respondent to continue to pay rent at the rate of ` 35,000/- per month and eventually while disposing of the appeal left this question of determination of mesne profits open.
In the meantime, there was some dispute regarding the admitted portion of the tenancy and the rate of rent where the petitioner claimed rent at the rate of ` 70,000/- per month while the respondent asserted that the rate of rent was ` 35,000. This matter ultimately went up before the Hon'ble Supreme Court whereby directions were to continue to pay ` 35,000/- as the valid rent. For the purposes of clarification, this dispute pertains only to the premises described as S.C.O.No.321.
This leaves me with a clear picture that in so far as the premises described as S.C.O.No.321 is concerned, the dispute inter se Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -6- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 between the parties is to be dealt with separately in terms of the proceedings which have been initiated by him and are pending. The solitary question that has to be determined is regarding the mesne profits to be paid by the respondent qua the premises S.C.O.No.322.
Learned counsel for the petitioner contends with reference to Annexures P-11 & P-12, which are on record of the contempt proceedings, that a registered sale deed pertaining to a similar set of shop has fetched a rental of ` 1,80,000/-. The lease deed Annexure P-12 is shown to have been registered in the year 2007 and, therefore, fundamentally would form a persuasive piece of material according to the learned counsel for the petitioner.
Learned counsel for the respondent, on the other hand, refutes this to say that this document cannot be taken into consideration as he has been taken unawares as the application filed by the petitioner is with a prayer of enforcement of the order dated 20.2.2008 and that this document is not appended to the application.
I am not in agreement with the contention of the learned counsel for the respondent as the petitioner has very clearly in para 6 of the application placed reliance on these documents and has referred to it as being on record as Annexures P-11 and P-12. Therefore, the respondent cannot plead that he has been taken by surprise on any count. To be fair to the respondent, this Court had questioned the learned counsel for the respondent, who was instructed by the respondent himself being present in Court, that as to whether he is willing to pay even at the rate determined by Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -7- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 this Court vide order dated 20.2.2008 but there was a flat refusal by him.
Therefore, this Court is now to embark upon an exercise to determine the mesne profits. As per the details provided by the respondent about the payments made to the petitioner on account of rent for both the premises in occupation by him i.e. S.C.O.Nos.321-322, the total comes to ` 49 lacs. To the figure of ` 49 lacs, the respondent has stated that he has paid a sum of ` 44,45,000/-, whereas the details regarding the amount of ` 04,55,000/- are not available and when these two figures are clubbed, the amount comes to ` 49 lacs. Out of this amount, the Court would reduce the amount @ ` 35,000/-, which is concededly the monthly rent for the premises S.C.O.No.321 and has to be paid by the respondent without any dispute for the total period of 96 months which would come to ` 33,60,000/- (upto 31.3.2014). When this figure is deducted from the figure of ` 49 lacs it leaves us with an amount of ` 15,40,000/-, which would now form the payment of rent component the respondent has made towards premises S.C.O.No.322.
Having said so, now the Court has to examine as to what should be the justifiable mesne profits to be paid for this portion of the premises i.e. S.C.O. 322.
The Hon'ble Supreme Court in Mohammad Ahmad and another vs. Atma Ram Chauhan and others, Civil Appeal No.4422 of 2011, has observed as follows:-
"i. The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -8- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.
ii. Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.
iii. The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.
iv. But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard to adjustment of the amount spent thereon, would have to be worked out between the parties.
v. If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus, for a period of 5 years, the tenant shall enjoy immunity from being evicted from the premises.
vi) The parties shall be at liberty to get the rental fixed by Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -9- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 the official valuer or by any other agency, having expertise in the matter.
vii. The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord."
Undeniably there is always some amount of guesswork that goes into determination of mesne profits and it is not ipso facto that an assertion made by the landlord or the tenant in this regard has to be accepted as a gospel truth.
To be fair to the petitioner, he has placed on record the lease deed pertaining to the premises in the near vicinity fetching an amount of ` 1,80,000/- as rental in the year 2007.
The Court cannot, however, be oblivious to the fact that tenancy being a form of a contract would also essentially be dependent upon a meeting of minds where the need of the landlord and the need of the tenant would play a constructive role in determining the point of consensus between the parties. Therefore, the lease deed relied upon by the petitioner cannot be taken to be a conclusive indicator of the rent prevailing in the area. The respondent is running a commercial venture i.e. a restaurant from both the premises and, therefore, in the most conservative opinion of this Court the amount determined by this Court in the year 2008 i.e. ` 1 lac per month would not be an exaggeration considering the commercial potential of the premises which would have multiplied manifold after a lapse of six Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -10- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 years and the venture undertaken by the respondent and also noticing the fact that the area where these premises are located are central to all commercial ventures thereby inviting a more competitive rate of rental. This Court, therefore, determines ` 1 lac for the premises described as S.C.O.No. 322 as a safe measure of rental/mesne profits to be paid by the respondent from the period that he has been in occupation of the premises. But since the period of rent is in dispute, the Court would grant this indulgence as an interim measure to the respondent to pay the mesne profits w.e.f. April 2006 till date.
Needless to say all this is without prejudice to the rights of the parties and settlement in terms of the amounts paid. As observed earlier, the respondent has paid the amount of ` 15,40,000/- towards the premises described as S.C.O.No. 322 and, therefore, he would now be required to pay the balance of the amount i.e. ` 80,60,000/- calculated @ `1 lac from 1st April 2006 till 31st March, 2014. He would be required to pay all the arrears of this amount within a period of six weeks from today and shall also continue to make this payment for future as well by the seventh of each month.
The Court necessarily has to express its view that the respondent has been in occupation of these premises without any authority. The report of the Rent Controller sought under the order of this Court establishes the unlawful possession of the respondent on S.C.O.No.322. He has occupied these premises for the last 11 years without any legitimacy and out of which since 2008 till 2014 he has been erratic in making his Rathore Poonam 2014.02.20 10:20 C.M.No.25305-CII of 2011 in/and -11- I attest to the accuracy and integrity of this document C.O.C.P. No. 836 of 2007 payments even if the best case of the respondent is to be accepted. This Court is further of the opinion that rent forms a bedrock of a relationship of landlord and tenant and once this is disturbed, then the tenant looses all moral rights to cling on the property as he has dishonestly occupied it and has deprived the landlord of its financial fruits. Here in this case the situation is worse. The respondent is a usurper of the property with no authority to occupy it from the owner.
If this amount is not paid within the time stipulated by this Court, it would be constrained to pass further orders to get this amount recovered through coercive process considering that the respondent continues to occupy these premises.
Application is allowed.
Main Case.
To come up on 17.2.2014.
February 13, 2014 ( MAHESH GROVER ) poonam JUDGE