Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.681/2005
th
% 5 December, 2011
FOOD CORPORATION OF INDIA ..... Appellant
Through: Mr. Kamal Sawhney, Adv.
versus
SARVSHRI BAL KARAN SINGH &ORS. ..... Respondents
Through: Mr. K.K.Rai, Sr. Adv. With
Mr. Bankey Bihari, Adv.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal filed
under Section 96 of the Code of Civil Procedure, 1908 is to the impugned
judgment of the Trial Court dated 25.7.2005 decreeing the suit of the
respondents/landlords/plaintiffs for possession and mesne profits at Rs.40/-
per square feet for super area of 1183 square feet for the period from
1.9.1993 till 28.2.2005. The Trial Court has also granted interest on the total
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amount due on the date of the decree at 6% per annum in case the amount is
not paid within 8 weeks. The appellant has already vacated the suit
premises and therefore the only issue which remains to be adjudicated is
with respect to the mesne profits.
2. At the outset, it is agreed between the counsel for the parties
that the Trial Court has wrongly recorded grant of mesne profits at Rs.40/-
per square feet for the super area and it is agreed that the mesne profits
would be at Rs.40/- per square feet for covered area of 962 square feet on
allowing of the present appeal. It is also agreed that the period in question
for which mesne profits are payable is from 1.9.1993 till 28.2.2005.
3. The facts of the case are that the appellant became a tenant of
the suit premises bearing flat no.108, Dinar Bhawan, 44, Nehru Place, New
Delhi at monthly rent of Rs.3,703.70 paise . The tenancy was subsequently
terminated by a legal notice issued on behalf of the respondents/landlords
dated 4.8.1993 and the tenancy was terminated from the midnight of
31.8.1993. Since the appellant/defendant failed to vacate the property, the
subject suit for mesne profits came to be filed.
4. The appellant/defendant contested the suit and denied the rate
of mesne profits. It was pleaded that rate of mesne profits should only be
RFA No.681/2005 Page 2 of 11
Rs.5.50 per square feet inasmuch as this rate was being paid with respect to
similar premises. The only issue which was argued before the Trial Court,
and which has been argued before this Court also, is as to what should be the
rate of mesne profits which should be awarded for the period after tenancy
was terminated with effect from 1.9.1993. Incidental to this issue is also
whether any mesne profits are payable from 1.9.1993 till the suit was filed,
inasmuch as it is pleaded that on acceptance of the rent being paid, the
appellant became month-to-month tenant and was hence not liable to pay
mesne profits.
5. Before the Trial Court, the respondents/plaintiffs/landlords
proved two lease deeds, Ex.PW2/1 and Ex.PW4/1, to show the rate of rents
payable with respect to similar premises. The lease deed, Ex.PW2/1 was
with respect to the premises being property no.95, First Floor, Nehru Place,
New Delhi and with respect to which, the rent was Rs.56.18 per square feet.
The lease deed in question, Ex.PW2/1 is dated 20.11.1996. The second lease
deed, Ex.PW4/1 is a lease deed dated 25.2.1993 with respect to the premises
being 516, Trade Tower, Nehru Place, New Delhi, and as per which, the
monthly rent is fixed approximately at Rs.40/- per square feet per month.
6. I may note that there is no challenge to these lease deeds,
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Ex.PW2/1 and Ex.PW4/1 on the ground that these lease deeds are bogus or
fabricated documents or that the same were not acted upon by the concerned
parties. It is also relevant to note that some amount of honest guesswork is
always entailed when mesne profits have to be calculated and which mesne
profits are basically rents of similar premises in the vicinity/area. The Trial
Court, therefore considering the two lease deeds, which were for the same
area of Nehru Place granted the mesne profits at Rs.40/- per square feet per
month. A civil case is decided on balance of probabilities, and merely
because two views are possible, unless the view taken by the trial Court is
perverse or causes grave injustice, this Court will not interfere in appeal. I do
not find any perversity or illegality causing injustice in the impugned
judgment.
7. The Trial Court also rightly disbelieved the evidence led on
behalf of the appellant of the rent being Rs.5.50 per square feet at the
relevant time as DW-2, Sh. R.S.Bedi could not give the names of residents
of Nehru Place from whom he allegedly inquired that the rate of rent was
Rs.5.50 per square feet.
8. Relevant issue which has been decided is issue no. 4 by the
Trial Court and the same reads as under:-
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“ Issue No.4:-
It was argued on behalf of plaintiffs that market
rate of rent was Rs.40 per square feet during 1993 and
therefore defendants are liable to pay mesne profits at the
said rate. In support of his submission, CI for plaintiff
had referred to two lease deeds Ex.PW2/1 and Ex.PW4/1.
Counsel submitted that said lease deeds are in respect of
properties situated in the same area and are also of the
relevant period. Therefore, defts may be directed to pay
mesne profits @ Rs.40 per sqr feet for super area of 1183
sqr. Feet w.e.f.1.9.93. On the other hand it was stated on
behalf of defts that Ex.PW2/1 and PW4/1 have not been
proved as per law of evidence as neither the original
lease deeds were produced before the Court nor Ld CI for
defts should have the opportunity to know about the
nature of properties, their exact area and situation. It was
also submitted that PW2 as well as PW-4 admitted in
their cross examination that they had no personal
knowledge about the execution of lease deeds Ex.PW2/1
and PW4/1. CI submitted that pltffs have failed to show
that market rate was Rs.40/- per sqr feet during 1993. Ld
CI also referred to stat3emetn of DW-1 and DW-2
wherein they have stated that defts are lessee in respect
of another property no.42, Nehru Place, New Delhi at
monthly rent of Rs.95,561.40 paise for the entire building
consisting of basement, ground floor, first floor, second
floor and third floor. Ld CL also submitted that the
market rate was not more than Rs.5.50 per sqr feet at the
relevant time and therefore, defts are not liable to pay any
amount more than that.
The submissions made on behalf of defts that
Ex.PW2/1 and PW4/1 are not proved according to law, is
mis-conceived and not tenable in the eyes of law. The
reason being that both documents are certified copies of
lease deeds which have been regd with the office of Sub
Registrar. They are public documents and are perse
admissible as per provisions of India Evidence Act 1872
RFA No.681/2005 Page 5 of 11
the argument of CL for defts that he could not have the
opportunity to ascertain the exact area of the properties or
the nature of properties is also without any force. The no
production of original lease deeds is also of not by much
consequence. PW3 Sh. N.K.Kaushik has been examined
by plfffs who deposed on oath that he was dealing in sale
and purchase of properties in the area in question. He
identified the signatures of lessor and lessee on
Ex.PW2/1. No contradiction has come on record in his
cross examination. Similarly PW4 Ms. Veena Bakshi
also deposed on oath that lease deed Ex.PW4/1 was
executed in her presence. Thus, there is no reason to
over look the said lease deeds Ec.PW2/1 and PW4/1.
The locality as well as the exact area are duly mentioned
in the said lease deeds and therefore, the submission of
CI for defts is rejected. The statements made by DW-1
Ms. Rama Sachdeva and DW-2 Sh. R.S. Bedi to the
effect that defts are tenants in respect of property no.42,
Nehru Place, New Delhi is not supported by any
document on record. A specific question was put in the
cross examination of DW-2 regarding the existence of
any document showing that property no9. 42, Nehru
Place, New Delhi is on rent @ ` 95,561.40 paise to which
DWs replied in negative. Moreover, it has come in the
cross examination of both the DWs that they never
inquired from any architect or valuer about the exact rate
of rent in respect of area in question at the relevant time.
DW-2 Sh.R.K.Bedi could not give the names of the
residents of Nehru Place from whom the allegedly
`
inquired about the rate of rent to be 5.50 per sqr feet at
the relevant time. DW-2 also stated in his cross
examination that he had no proof to show that market
rate of rent was ` 5.50 per sqr feet at the relevant time.
On the other hand, lease deed Ex.PW2/1 shows that same
pertains to property no.95, Nehru Place, New Delhi and
was executed on 20.11.96 by which three shops situated
on the ground floor were let out at monthly rent of
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` 60,000/- The total area of the said floor has been
mentioned as 1065 sqr feet. In this manner, per sqr feet
rent comes out to about ` 56.18. Similarly the other lease
deed Ex.PW4/1 shows that same pertains to property no.
516 having super area of 638 sqr feet which was
executed on 25.2.93. The same also shows that monthly
rent of the said premises was more than ` 40 per sqr feet
in February 1993. The pltffs in the present case have
claimed mesne profits @ ` 40 per sqr feet for super area
of 1183 sqr feet. The measurement of area of the
demised premises is not in dispute as DW1 Ms. Rama
Sachdeva has admitted in her cross examination that
super area of demised premises is approximately 1183
sqr feet. Considering all these facts and in view of the
aforesaid discussion the Court does not think that the rate
of mesne profits @ ` 40, per sqr feet claimed by pltffs is
excessive or un reasonable. Accordingly, it is held that,
plftts are entitled to receive mesne profits @ ` 40 per sqr
feet for super area of 1183 sqr feet w.e.f. 1.9.93 till the
date of delivery of possession i.e. 28.2.05. The issue is
decided accordingly.” (underlining added)
I agree with the aforesaid conclusion of the Trial Court of
fixing the rate of rent at Rs.40/- per square feet in view of the evidence led
on behalf of the respondents/landlords being the two lease deeds as stated
above and disbelieving the evidence led on behalf of the appellant. I may
once again note that it is not the case of the appellant that the lease deeds
Ex.PW2/1 and Ex.PW4/1 are forged, fabricated or bogus documents.
9. Learned counsel for the appellant argued two basic points. The
first point which was argued was that the respondents after termination of
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the tenancy accepted rent and therefore there came into existence the
monthly tenancy. It is argued that therefore mesne profits are not liable to
be paid. The second argument is that the Trial Court has erred in not
granting adjustment to the appellant for the payments which have been made
for the period for which mesne profits were granted.
10. So far as the first argument on behalf of the appellant is
concerned, the same is no longer res integra inasmuch as it has been held by
the Supreme Court in the case of Sarup Singh Gupta vs. Jagdish Singh &
Ors. 2006 (4) SCC 205 that if a landlord after termination of tenancy,
accepts the rent, merely by acceptance of rent a new tenancy does not come
into existence, and the landlord is in fact entitled to appropriate the amounts
received towards charges for use and occupation. To the same effect are the
observations of the Supreme Court in the case of Shanti Prasad Devi Vs.
Shankar Mahato 2005 (5) SCC 543. I therefore reject this argument on
behalf of the appellants.
11. So far as the second argument is concerned, learned counsel for
the respondents does not dispute that in case any amounts have been
received by the respondents/landlords after termination of the tenancy, all
such amounts which have been received by the respondents/landlords, and
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obviously such amounts would have been paid by cheque, the
respondents/landlords will give adjustments of such amounts which have
been received.
12. At this stage, I may also dispose of CM No.5674/2007, which
has been filed on behalf of the appellant under Order 41 Rule 27 CPC. The
appellant seeks to set the clock back by over 15 years by seeking to lead
additional evidence. Once the appellant had complete opportunity and had
led evidence then now it cannot be allowed to lead additional evidence
because object of Order 41 Rule 27 CPC is not to enable a litigant who has
not been vigilant by leading evidence in the suit, to fill up the lacuna by
again seeking to get the clock set back. The only ground which is urged on
behalf of the appellant is negligence of its official who was handling the
matter. Merely because a show-cause notice is issued to the officer will not
mean that the requirement of law under Order 41 Rule 27 CPC will change,
and which is that only such evidence which was not in the knowledge of the
litigant or there are equally grave reasons, only then additional evidence will
be allowed to be led. I therefore reject the application filed by the appellant
for leading additional evidence.
13. The respondents/landlords have filed CM No.6347/06, which
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are cross objections for claiming the relief of interest on mesne profits, the
claim is for interest at 18% per annum.
14. That the landlords/plaintiffs are entitled to interest on mesne
profits, is now well settled and a reference can be made to the decision of the
Supreme Court in the case of Indian Oil Corporation vs. Saroj Baweja
2005 (12) SCC 298 . The only issue is the rate at which the interest should
be awarded. The Supreme Court in the recent chain of its judgments has
directed the Courts to reduce the high rates of interests which have been
granted by the Courts, and considering the facts and circumstances of the
case, and also considering that I have dismissed the application under Order
41 Rule 27 CPC filed by the appellant, interest of justice will be served if the
respondents are granted interest at 6% per annum simple from the date the
mesne profits became payable. Interest therefore will be payable at 6% per
annum simple from the first day of the next month for which the mesne
profits have become payable, till the same are actually paid.
15. In view of the above, the appeal is dismissed. Cross objections
are allowed by granting interest at 6% per annum simple as stated above.
Parties are left to bear their own costs. Decree sheet be prepared after the
respondents pay additional Court fees for the money decree today passed for
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the interest on mesne profits. Any Court fees already paid by the
respondents/landlords would be liable to be adjusted. Trial Court record be
sent back.
VALMIKI J. MEHTA, J
DECEMBER 05, 2011
ak
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