* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : July 21, 2008
Judgment delivered on : August 7, 2008
+ R.F. A. No.593/2006
M/s Hindustan Lever Limited
(Since M/s Brooke Bond Lipton India Ltd.
amalgamated with Hindustan Lever Ltd.)... Appellant
Through: Mr.A.S. Chandihok, Sr. Advocate
with Ms Ekta Kapil and Bindu Dass,
Advocates
versus
1. Shri Dan Singh Bawa,
2. Smt Savitri Bawa,
3. Mr Anand Singh Bawa and
4. Mr. Anoop Singh Bawa ... Respondents
Through: Mr.Rakesh Aggarwal,Advocate
CORAM:
HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
RFA No.593/2006 Page 1
SUNIL GAUR, J.
1. The legality of award of damages @ Rs.45/- per sq. feet for use and occupation of Marshal House in Block no:127, Hanuman Road, New Delhi w.e.f. Ist, July 1993 upto 24th December, 2001 has been questioned by the Lesser/defendant in this appeal.
2. Un-disputed facts are that vide lease deed dated 31.08.1990 aforesaid suit premises was leased out by the plaintiff/respondent to the defendant/appellant at Rs.10,375/- per month. The lease commenced w.e.f. Ist July, 1988 and came to an end on 30th June, 1993 by afflux of time. The option to renew this lease was not expressly exercised by the appellant/defendant and the respondent/plaintiff sought possession of suit premises vide telegraphic notice dated 30.06.1993 but appellant/defendant did not respond to it.
3. Respondent/plaintiff in suit for possession claimed mesne profits/damages for use and occupation of suit premises w.e.f. 1.7.1993 to 31.3.1994 @ Rs. 45/- per sq. ft. with interest @ 18% quantified at Rs.8,90,797.32 p. Pendente lite and future damages i.e. till vacation of suit premises, were demanded @ 45/- per sq. ft. Appellant/defendant resisted the suit mainly on the ground that respondent/plaintiff had waived giving of formal notice for extending the lease in RFA No.593/2006 Page 2 question.
4. On the pleadings of the parties, the following issues were claimed and framed by the trial court:-
(i) Whether the plaintiff proves that the tenancy vide lease deed dated 31.8.1990 of the Defendant is legally terminated?
(ii) .Whether the defendant proves that vide oral agreement dated 1.5.1993, the tenancy of the defendant was agreed to be extended for a further period of 5 years as averred in paragraph 3 of WS? If yes, what is the effect?
(iii) Whether the plaintiff is entitled to be mesne profits? If yes, at what rate?
(iv) Whether the plaintiff is entitled to the interest on the amount of mesne profits, if any? If yes at what rate?
(v) To what relief, if any the plaintiff is entitled to?(vi) What order and decree?"
5. The lease deed Ex.PW1/10 in question stands proved from the evidence of Ajit Singh (PW-2) who is from the office of the Sub Registrar. For claiming damages/mesne profits, lease deed Ex.PW1/3 and its accompanying documents Ex.PW3/3 and Ex.PW3/4 of the Canara Bank stands proved from the evidence of P.C. Sharma (PW-3), an official of the Canara Bank. Shri R.K.
RFA No.593/2006 Page 3 Srivastava (DW-1), an executive of the appellant/defendant company and Anand Singh Bawa, Respondent/plaintiff no.3 has stepped into the witness box as PW-1. In all, aforesaid was the evidence which was led by the parties before the trial Court. Vide impugned judgment dated 14th February, 2006, suit of the respondent/plaintiffs for damages/mesne profits stands decreed for a sum of Rs.8,40,375/- with costs and interest @ 6% per annum from Ist July, 1993 till realisation. Mesne profits for the use and occupation of the suit premises from Ist April, 1994 till 24th December, 2001 have been granted @ Rs.45/ per sq. feet per month for premises in question. The cut of date of 24th December, 2001 is there because appellant/defendant had vacated the suit premises on the above said date.
6. After having heard both the sides and upon perusal of the impugned judgment and the material on record, we find that the trial Court has awarded the damages/mesne profits for the use and occupation of the suit premises from Ist April, 1994 at a flat rate of Rs.45/- per sq. ft per month. This was what the respondent/plaintiff had claimed in the suit. For granting, what was prayed for by the respondents/plaintiffs, trial Court has relied upon copy of lease deed Ex.PW3/1 in which the rate of rent was Rs.50/- per sq ft per month w.e.f. 9th March, 1996 and it pertained to the premises in this very building in which the suit premises RFA No.593/2006 Page 4 was situated. Aforesaid lease relied upon by the trial Court pertained to the ground floor, as well as the first, second and third floor. There is no worthwhile challenge to the aforesaid clinching evidence as the appellant has failed to bring out anything in evidence about the rate of the rent in the locality in question. However, the challenge to the impugned judgment is from another angle i.e. the appellant relies upon a letter dated 26th June, 1992 Ex.DW1/6 sent by the respondents to the appellant and the subject matter of this letter was the air conditioning of the premises in question and the air conditioning charges agreed upon by both the sides were Rs.5/- per sq foot per month.
7. According to the appellant, there was a deemed extension of the lease deed in question vide this letter Ex.DW1/6. To appreciate this contention, it has to be kept in mind that the lease deed in question was a registered document Ex.PW1/2 and as per this document, a notice in writing for renewal of the lease was required to be given three months prior to the expiry of the lease and admittedly, no such notice was given.
8. In the case reported as JT 2003 (8) SC 334 {State of U.P. & Ors V. Lalji Tandon (Dead)}, it has been held by the Hon'ble Apex Court as under :-
RFA No.593/2006 Page 5 ''Where the principal lease executed between the parties containing a covenant for renewal, is renewed in accordance with the said covenant, whether the renewed lease shall also contain similar clause for renewal depends on the facts and circumstances of each case regard being had to the intention of the parties as displayed in the original covenant for renewal and the surrounding circumstances. There is a difference between an extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease, again in accordance with the covenant for renewal contained in the original lease. In the case of extension it is not necessary to have a fresh deed of lease executed; as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised, a fresh deed RFA No.593/2006 Page 6 of lease shall have to be executed between the parties. Failing the execution of a fresh deed of lease, another lease for a fixed term shall not come into existence though the principal lease in spite of the expiry of the term thereof may continue by holding over for year by year or month by month, as the case may be.''
9. It is beyond comprehension that the appellant company would seek an implied extension of the lease by indirect means of the letter Ex.DW1/6 which only talks of air conditioning of the suit premises and would not directly resort to seek renewal of the lease deed in question. We find that the trial Court has rightly held that the terms and conditions of the registered lease deed in question cannot be varied/altered orally and the alleged air conditioning agreement does not amount to a fresh lease agreement.
10. Although it was contended before us on behalf of the appellant that there is no notice from the respondents terminating the lease of the appellant but we find this contention being not factually correct, as vide document Ex.PW1/3 dated 30th June, 1993, appellant has been called upon by the RFA No.593/2006 Page 7 respondents to deliver the physical possession of the suit premises w.e.f. Ist July, 1993. As regards the instances relied upon to determine the rate or rent of similarly placed properties in the locality in question, it has been pointed out on behalf of the appellant that for the period from Ist July, 1993 till March, 1996, there is no evidence on record. Even if it is so, still the lease deed Ex.PW3/1 of the Canara Bank in the building in question in the year 1996 of Rs.50/- per sq ft per month clinches the issue.
11. Considering the fact that the monthly rental in the building in question where the suit premises as well as the premises of the Canara Bank are located would be marginally on the lower side in the years 1993 to 1995, the trial Court has rightly, in our opinion, fixed mesne profits/damages at the flat rate of Rs.45/- per sq ft per month w.e.f. Ist July, 1993 till 24th December, 2001.
12. We find no infirmity or illegality in the impugned judgment and, therefore, we uphold the impugned judgment and decree and accordingly dismiss this appeal with no order as to costs.
SUNIL GAUR, J
T.S. THAKUR, J
August 7, 2008
DKG
RFA No.593/2006 Page 8