Delhi District Court
Sanjay Suneja & Anr vs Punjab National Bank on 20 February, 2020
IN THE COURT OF MS VANDANA JAIN,
ADDITIONAL DISTRICT JUDGE07 (SE),
SAKET COURTS NEW DELHI
CS No. 8142/16
Sanjay Suneja & Anr Vs Punjab National Bank
In the matter of:
1 Sanjay Suneja S/o Dr. K.L.Suneja
R/o D1, Kalkaji, New Delhi110019
2. Sh. J.K.Mehta S/o Late Sh. B. D. Mehta
R/o B47, Golf View Apartments, Saket, New Delhi
...........Plaintiff
VERSUS
Punjab National Bank
(through its Chairman)
7, Bhikaji Cama Place, New Delhi
Branch office at:
Punjab National Bank
Through its Branch Manager
36, 1st floor, Krishna Market,
Kalkaji, New Delhi110019
........Defendants
Date of Institution : 06.04.2016
Date of reserving of judgment : 18.02.2020
Date of Judgment : 20.02.2020
Sanjay Suneja & Anr Vs Punjab National Bank Page 1 of 32
JUDGMENT
1. This is a suit for recovery for a sum of Rs.11,05,000/ towards mesne profits and damages with interest.
2. Brief facts of the case are that plaintiffs are the absolute owners of the commercial property bearing Shop no. 34, Ground Floor, Krishna Market, Kalkaji, New Delhi measuring 87.5 square yards, having carpet area 650 square feet (suit property). The suit property was jointly purchased by the plaintiffs from Smt. Kavya Malhotra W/o Sh Arjun Malhotra vide registered documents.
3. It is further stated that prior to purchasing the suit Sanjay Suneja & Anr Vs Punjab National Bank Page 2 of 32 property, the previous owner leased out the suit property to the defendant on certain terms and conditions, which are contained in lease deed dated 30.11.2004 which is duly registered as document no. 15289 in book no. 1, volume no. 4494 on page 82 to 90 dated 30.11.2004 in the office of Sub Registrar V, New Delhi.
4. It is further stated that after purchasing the suit property for valuable consideration in June 2009, the plaintiffs duly intimated to the defendant with regard to their ownership of the suit property. The defendant duly acknowledged this fact of ownership of the plaintiffs qua the suit property by depositing the rent in proportionate shares at the rate of Rs.7722/ per month each in respective bank accounts of the plaintiffs. Sanjay Suneja & Anr Vs Punjab National Bank Page 3 of 32
5. It is further stated that much prior to expiry of aforesaid lease deed dated 30.11.2004, the plaintiffs had communicated to the defendants in writing that the plaintiffs were no more interested to continue the defendants as tenant in the suit property and requested the defendants several times to vacate the suit property and also terminated the lease deed dated 30.11.2004 by sending a termination notice dated 08.11.2014.
6. It is further stated that on termination of lease deed/expiry of lease w.e.f 30.11.2014, the defendant was under obligation to vacate and handover the peaceful vacant possession of the suit property to the plaintiffs. The possession of the defendant in the premises became illegal as well as unauthorized w.e.f Sanjay Suneja & Anr Vs Punjab National Bank Page 4 of 32 01.12.2014.
7. It is further stated that on failure of the defendants to handover the peaceful vacant possession of the suit property, the plaintiff initiated legal proceeding for ejecting the defendants from the suit property by filing a civil suit and in the said matter, the defendant duly appeared and contested the matter. Ld. Civil Judge passed a judgment/decree on 10.07.2015 for possession and eviction of the defendant from the suit property under Order 12 Rule 6 CPC.
8. It is further stated that despite passing of judgment/decree against the defendant, the defendant did not vacate the suit property and handed over peaceful vacant possession of the same to the plaintiff. Sanjay Suneja & Anr Vs Punjab National Bank Page 5 of 32 Accordingly, plaintiff initiated execution proceedings and received possession on 10.11.2015.
9. It is further stated that plaintiffs most respectfully submits that after termination of lease w.e.f 30.11.2014, the possession of the defendant in the suit property became illegal and unauthorized and the defendants remained in illegal use, occupation and possession of the suit property from 01.12.2014 to 10.11.2015 for about 11 months and 10 days.
10. It is further stated that as per market rate and the property being situated in the vicinity of commercial area, the plaintiffs are entitled to charge the damages and mesne profits, for illegal use and occupation of the suit property equal to market rate of rental at the Sanjay Suneja & Anr Vs Punjab National Bank Page 6 of 32 relevant period. The plaintiff submits that during that period, rental rate of property like that of the plaintiff was @ Rs. 150/ per sq ft. (apx) per month. Accordingly, plaintiff is entitled to recover the amount as per the said rate from the defendant.
11. It is further stated that as per calculation @ 150/ per square feet per month, the defendant is liable to pay to the plaintiffs a sum of Rs. 97,500/ per month (650 sq. ft X Rs. 150 per sq.ft.) totalling Rs. 11,05,000/ for the period from 01.12.2014 to 10.11.2015 towards mesne profits.
12. It is further stated that plaintiff served a legal notice dated 17.02.2016 but no payment was made despite service, hence, the present suit. Sanjay Suneja & Anr Vs Punjab National Bank Page 7 of 32
13. Written statement was filed by defendant wherein, it is stated that suit is not maintainable being hit by the provisions of Order 2 Rule 2 CPC. In this respect, it is submitted that even as per averments of the plaintiffs in their plaint, a legal notice dated 08.11.2014 was got issued by them calling upon the defendant bank to vacate the suit property i.e. tenanted premises bearing Shop no. 34, Ground Floor, Krishna Market, Kalkaji, New Delhi 110019 having carpet area of 650 sq. ft in the midnight of 30.11.2014 and 01.12.2014 and threatening to initiate legal action against the defendant bank for recovery of possession of the said tenanted premises and also for recovery of damages at the rate of Rs. 150/ per sq. ft per month for the period 01.12.2014 till date of handing over the Sanjay Suneja & Anr Vs Punjab National Bank Page 8 of 32 tenanted premises.
14. It is further stated that on the basis of legal notice, the plaintiffs subsequently filed the CS no. 507/2014 titled "Sanjay Suneja Vs PNB" praying for recovery relief of recovery of possession of the said tenanted property and permanent injunction against the defendant bank without making any averments relating to recovery of damages /mesne profits or praying for any such relief. The said suit was finally decided vide judgment/decree dated 10.7.2015 in compliance whereof the defendant bank has already vacated and handed over the possession of the suit property . In this manner, the plaintiff had chosen not to seek any relief of recovery of damages though available to them at the time of filing of the aforesaid previous suit , therefore, Sanjay Suneja & Anr Vs Punjab National Bank Page 9 of 32 the plaintiffs are now precluded from seeking the said relief in the present suit being hit by the provisions of order 2 Rule 2 CPC.
15. It is further stated that suit is not maintainable as the relief of recovery of damages which the plaintiffs had failed to seek in their previous suit bearing no. 507/2014 stood deemed to have been waived by the plaintiffs against the defendants. Therefore, the present suit seeking the said relief of recovery of damages is bad in law and liable to be dismissed on this ground alone.
16. It is further stated that suit is not maintainable as same been filed merely on assumptions and conjectures and the plaintiff has intentionally failed to place on Sanjay Suneja & Anr Vs Punjab National Bank Page 10 of 32 record any documentary proof in support of his averments relating to the alleged prevalent rate of rent of Rs. 150/ sq feet per month in respect of the suit property.
17. It is further stated that suit has not been properly valued and no proper court fee has been paid by the plaintiffs.
18. It is further stated that handing over of the vacant possession of the suit property to the plaintiffs by the defendant bank, the aforesaid judgment and decree dated 10.07.2015 stood duly satisfied leaving no further claims of the plaintiffs against the defendant bank. Rest of the averments have been denied by the defendant. Sanjay Suneja & Anr Vs Punjab National Bank Page 11 of 32
19. Replication to the written statement was filed by the plaintiff wherein contents of the written statement were denied and contents of the plaint were reiterated.
20. After completion of the pleadings, following issues were framed vide order dated 26.05.2017.
(i) Whether the plaintiff is entitled for decree of Rs.
11,05,000/ in lieu of mesne profits and damages? OPP.
(ii) Whether plaintiff is also entitled for interest on this above amount if so at what rate? OPP
(iii) Whether suit of the plaintiff is hit by order 2 Rule 2 CPC, if so , the consequence thereof is on the recovery of the present suit? OPP
(iv) Whether the suit of the plaintiff is not valued the Sanjay Suneja & Anr Vs Punjab National Bank Page 12 of 32 suit property for the purpose of court fees? OPD.
(v) Relief.
21. Thereafter, matter was listed for plaintiff's evidence. Plaintiff examined himself as PW1 and relied upon certain documents i.e.
1. Photocopy of copy of lease deed dated 30.11.2004 is Ex. PW1/1.
2. Photocopy of copy of mutation letter dated 29.09.2009 issued by MCD is Ex. PW1/2.
3. Photocopy of copy of legal notice dated 08.11.2014 is Ex. PW1/3.
4. Certified copy of postal receipts of legal notice dated 08.11.2014 is Ex. PW1/4 to Ex. PW1/7.
5. Photocopy of copy of service report is Ex. PW1/8 & Ex. PW1/9.
6. Certified copy of suit no. 507/14 is Ex. PW1/10.
7. Photocopy of order dated 10.07.2015 is Ex. PW1/11.
8. Photocopy of judgment dated 10.07.2015 is Ex. PW1/12.
9. Photocopy of decree dated 10.07.2015 is Ex. PW1/13.
10. Photocopy of legal notice dated 17.02.2016 is Ex. PW1/14.
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11. Original postal receipts is Ex. PW1/15 and Ex. PW1/16.
12. Original print out of tracking report is Ex. PW1/17 and Ex. PW1/18.
22. Plaintiff examined also PW2 Vipin Kumar, Branch Operation Manager, Kotak Mahindra Bank. Copy of ID card of deponent is Ex. PW2/A, copy of lease deed is Ex. PW2/B (colly). Thereafter, PE was closed vide order dated 11.01.2019.
23. Thereafter, matter was listed for defendant's evidence. Defendant examined DW1 Rachna Bindlesh, Senior Manager, Krishna Market Branch, Punjab National Bank and tendered her affidavit of evidence Ex. DW1/A. Thereafter, DE was closed vide order dated 18.02.2020.
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24. Thereafter, matter was listed for final arguments.
25. Ld. counsel for the plaintiff has argued that the present suit is for recovery of mesne profits alongwith interest from 01.12.2014 till 10.11.2015. Ld counsel for plaintiff further submits that plaintiff had filed separate suit for possession on 03.12.2014 and the said suit was decreed under Order 12 Rule 6 CPC and possession of the suit property was handed over back to the plaintiff's on 10.11.2015 and therefore, he is seeking mesne profits from the date when the defendant became unauthorized occupant w.e.f 01.12.2014 till 10.11.2015 (date of receiving back possession).
26. Ld counsel for plaintiff has further argued that in order to prove market rate of rent therefore, he Sanjay Suneja & Anr Vs Punjab National Bank Page 15 of 32 summoned the original lease deed of the Kotak Mahindra Bank for property bearing no. L9, Ground Floor, Kalkaji, New Delhi. He further submits that this property is in the vicinity of the said property and therefore, the market rate of rent of the suit property is same. He further argued that as per the said lease deed, the market rate in the year 2013 was 142.37 per sq. feet. Ld counsel further submits that during this period of authorized occupancy, the defendant failed to pay even a single penny and therefore, the suit be decreed.
27. On the other hand, Ld counsel for defendant has argued that present suit is barred by under Order 2 Rule 2 CPC. He submits that earlier the suit was filed for possession wherein the relief of mesne profits could have been sought. Ld counsel for defendant further Sanjay Suneja & Anr Vs Punjab National Bank Page 16 of 32 argued that since the earlier suit was between the same parties with respect of the same property and therefore, the present suit is clearly barred by under Order 2 Rule 2 CPC. He further submits that payment has been made for the aforesaid period as per contractual rate of rent. He submits that suit is liable to be dismissed.
28. I have heard the arguments and have perused the record carefully.
29. Issue no. 3:
(iii) Whether suit of the plaintiff is hit by order 2 Rule 2 CPC, if so , the consequence thereof is on the recovery of the present suit? OPP The defendant has taken an objection that the Sanjay Suneja & Anr Vs Punjab National Bank Page 17 of 32 present suit is barred by Under Order 2 Rule 2 CPC as earlier suit for possession was filed wherein the mesne profits were not sought and therefore, the present suit is not maintainable in view of bar under Order 2 Rule 2 CPC. The said provision is reproduced hereinunder.
"Suit to include the whole claim (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or Sanjay Suneja & Anr Vs Punjab National Bank Page 18 of 32 relinquished.
Perusal of the record reveals that defence of the present suit being barred Under Order 2 rule 2 CPC has been taken on the ground that a legal notice dated 08.11.2014, Ex. PW1/3 was served upon the defendant whereby the tenancy was terminated and the damages were sought @ 150/ per square feet. It is argued that since cause of action has already arisen on the date of service of legal notice dated 08.11.2014 upon the defendant, the plaintiff ought to have included the relief of mesne profits in the said suit.
30. In order to file a suit, it is necessary that cause of action has accrued on the date of filing of the suit. As per the legal notice dated 08.11.2014, the tenancy stood terminated on the midnight on 31.11.2014 and Sanjay Suneja & Anr Vs Punjab National Bank Page 19 of 32 the defendant become an unauthorized occupant w.e.f. 01.12.2014. The suit for possession which is Ex. PW1/10 was filed by the plaintiff herein against the defendant bank on 03.12.2014 itself i.e. within two days from the date when defendant became the unauthorized occupant. The plaintiff could not have sought any mesne profits for two days. It is pertinent to mention here that contractual rate of rent was duly paid till November 2014. Hence, there as no cause of action for filing the suit for mesne profits on that date and the plaintiff had the choice to file suit for seeking relief of mesne profits separately. Reliance is placed upon "Jagmohan Bahel VS State Bank of India 2017 (238) DLT 228, Hon'ble High Court of Delhi" wherein it has been held that Sanjay Suneja & Anr Vs Punjab National Bank Page 20 of 32
16. It is undoubtedly well settled that cause of action for a relief of recovery of mesne profits is separate and distinct from cause of action for the relief of possession. (Gurudwara Baba Zorawar Singh and Baba Fateh Singh Ji Regd. Society Vs Sh. Piara Singh and Sons, 141 (2001) DLT 228 (DB) and Syndicate Bank Vs Raj Kumar Tanwar, 154 (2008) DLT 230 (DB)). At the same time, it would not be correct to contend that a suit for mesne profits can not be filed clubbing it with the prayer for recovery of possession or that such reliefs must necessarily be split into two different suits; first, a suit for the latter relief (recovery of possession) and after a decree passed therein has Sanjay Suneja & Anr Vs Punjab National Bank Page 21 of 32 become final and binding the second foR latter relief (mesne profits). A bare perusal of Rule 12 of Order XX CPC, referred to in the aforequoted extract from the judgment in Amderson Wright and Co. (supra)would clarify the position, the provision reading thus:
" Order XX Rule 12Decree for possession and mesne profits (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; Sanjay Suneja & Anr Vs Punjab National Bank Page 22 of 32 (ba) for the mesne profits or directing an inquiry as to such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until (I) the delivery of possession to the decree holder,
(ii) the relinquishment of possession by the judgment debtor with notice to the decree holder through the court or
(iii) the expiration of three years from the date of the decree, whichever event first occurs; (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry".
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17. One may also refer with advantage to Order XVA (striking off defence in a suit by a lessor) which was inserted in the Code of Civil Procedure by High Court of Delhi, notification no. 324/Rules/DHC dated 12.11.2008, published in the Delhi Gazette, Extraordinary, Pt. IV, no. 179 dated 14.11.2008. Therefore, there is no doubt that claim can be instituted by a lessor, after termination of the lease, whether by efflux of time or by notice terminating it prematurely, both for eviction of the unauthorized occupant (or lessee, as the case may be) and also for recovery of mesne profits (or rent, as the case may be), in one common suit or by two separate suits.
18. Thus, even if a suit is first filed only for recovery Sanjay Suneja & Anr Vs Punjab National Bank Page 24 of 32 of possession of immovable property with no claim made for relief of mesne profits, a second suit for recovery of mesne profits for the period subsequent to the filing of the suit for recovery of possession may be instituted. [Shiv Kumar Sharma Vs Santosh Kumari (2007) 8 SCC 600]. But , it is equally settled that such suit for recovery of mesne profits would have to be restricted to what is within the period of limitation.
The aforesaid findings in the judgment relied above clarifies the issue. The present suit has been filed for seeking mesne profits from 01.12.2014 and the earlier suit was filed 03.12.2014, so the present suit is not barred under Order 2 Rule 2 CPC for the period 04.12.2014 till 10.11.2015, having been filed within the Sanjay Suneja & Anr Vs Punjab National Bank Page 25 of 32 period of limitation of three years.
Therefore, this issue is decided against the defendant and in favour of plaintiff.
31. Issue No. 1:
(i) Whether the plaintiff is entitled for decree of Rs. 11,05,000/ in lieu of mesne profits and damages? OPP.
The service of legal notice dated 08.11.2014 Ex. PW1/3 is admitted in the written statement filed by the defendant. The said legal notice had terminated the tenancy and it is clearly mentioned therein that the plaintiff did not wish to continue the tenancy with the defendant. The tenancy expired on 30.11.2014 therefore, the legal notice dated 08.11.2014 terminated Sanjay Suneja & Anr Vs Punjab National Bank Page 26 of 32 the tenancy w.e.f 30.11.2014. The defendant continued to remain in the possession of the property till 10.11.2015 and therefore, became an unauthorized occupant w.e.f. 01.12.2014 till 10.11.2015. Therefore, plaintiff is entitled to damages for the period starting from 04.12.2014 till 10.11.2015, in view of findings on issue no. 1.
Now the question arises at what rate the damages are to be paid. Vide legal notice dated 08.11.2014, and the legal notice dated 17.02.2016 which is Ex. PW1/14 and is accompanied by the postal receipt Ex. PW1/15 and Ex. PW1/16 and the tracking report with respect of the service of said legal notice Ex. PW1/17 and Ex PW1/18, the damages sought were Rs. 150 per square feet, per month. In order to determine the market rate of rent, the plaintiff has examined PW2 Vipin Kumar, Sanjay Suneja & Anr Vs Punjab National Bank Page 27 of 32 Branch Operation Manager, Kotak Mahindra Bank who was exhibited the lease deed of one property bearing no. L9, Ground Floor, Kalkaji, New Delhi which is between the owner and the Kotak Mahindra Bank. In that lease deed, the rent between the year 2013 2016 is shown to be Rs. 142.37 per sq feet per month and it came to be Rs. 2,66,944/ as the carpet area of property bearing no. L9, Ground Floor, Kalkaji, New Delhi is 1875 sq feet. The suit property is measuring 650 sq feet. The original lease deed of 30.11.2004 shows that initially the property was rented out @ 22 per square feet which was increased to Rs. 24 sq. feet approximately after a period of five years. DW1 in his affidavit, has stated that property bearing no. L9, Ground Floor, Kalkaji, New Delhi is 500 meter away from the suit premises. Ld counsel for the plaintiff did Sanjay Suneja & Anr Vs Punjab National Bank Page 28 of 32 not put any question to the DW1with respect of the location of L9 in order to prove the contrary. The suit premises is in Krishna Market, Kalkaji whereas the suit bearing no. L9 appears to be at some distance. At the same time, the defendant who is now operating from 36 Krishna Market itself failed to produce its own lease deed in order to show how much market rate of rent, defendant is paying now. Defendant mischievously withheld the best evidence. Keeping in view the fact that the property is not located in the Krishna Market but is in the same locality and taking a conservative view, the mesne profits are assessed at the monthly rate of Rs 125 per square feet.
Issue no. 1 is decided in favour of plaintiff and against the defendant.
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32. Issue no. 2:
(ii) Whether plaintiff is also entitled for interest on this above amount if so at what rate? OPP In view of the finding of issue no.1, plaintiff is also entitled to interest @ 9% p. a. This issue is decided in favour of plaintiff and against the defendant.
33. Issue no. 4:
(iv) Whether the suit of the plaintiff is not valued the suit property for the purpose of court fees? OPD.
The onus to prove this issue was upon the defendant. As per paragraph no. 15 of the plaint, the plaintiff has filed advalorem court fees on the amount of Rs. 11,05,000/. The defendant has failed to lead any Sanjay Suneja & Anr Vs Punjab National Bank Page 30 of 32 evidence or to address any oral arguments during the time of final arguments as to how the suit is not properly valued for the purposes of court fee, therefore, this issue is decided against the defendant and in favour of plaintiff.
34. Relief: Suit is decreed for mesne profits @ Rs. 125 per sq. feet p.m. in respect of property no. Shop no. 34, Ground Floor, Krishna Market, Kalkaji, New Delhi having carpet area 650 square feet (suit property) for a period starting from 04.12.2014 till 10.11.2015 alongwith simple interest @ 9% per annum from the date of filing of the suit till realization alongwith cost of suit.
Sanjay Suneja & Anr Vs Punjab National Bank Page 31 of 32
35. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally signed by VANDANA VANDANA JAIN Date: Announced in the open JAIN 2020.03.05 17:07:09 court on 20.02.2020 (VANDANA JAIN) +0530 ADJ07/SE/SAKET COURTS/ NEW DELHI/20.02.2020 Sanjay Suneja & Anr Vs Punjab National Bank Page 32 of 32