Rail India Technical & Economic ... vs I.M. Puri & Ors.
1999 Latest Caselaw 337 Del

ORDER

Arun Kumar, J.

1. In this appeal the appellant has assailed the judgment and decree dated 19th November, 1997 passed by the trial court. By the impugned judgment and decree, the learned Addl. District Judge Delhi decreed the suit for possession filed by the respondents against the appellant herein with respect to premises described as flat no. 611, 6th floor, Arunachal Building, 19, Barakhambha Road, New Delhi. The trial court further passed a decree for mesne profits in the sum of Rs. 2,38,686/- covering the period from 1st July, 1994 till 31st January, 1995 along with interest @18% per annum on the said amount from the date of filing of the suit till recovery. The decree further directs that the defendant (appellant herein) will pay mesne profits for use and occupation of the premises @ Rs. 100/- per sq. ft. month with effect from the date of institution of the suit till handing over possession of the premises.

2. The respondent had filed a caveat through Shri Vijay Kishan, Advocate. Therefore, counsel for both the parties appeared at the time of hearing of this appeal. The counsel for the parties also placed copies of the pleadings in the suit as well as copies of the relevant documents and oral evidence to facilitate hearing of this appeal.

3. We have heard the learned counsel for the parties. The learned counsel appearing for the appellant raised the following points at the time of hearing of the appeal.

1. Service of notice of termination of tenancy is denied.

2. The notice relied upon by the plaintiff/respondent as the notice of termination of tenancy dated 3rd June, 1994 being Ex. PW-2/2 does not give clear 15 days' time ending with the month of tenancy and, therefore, the notice is invalid.

3. The lease agreement between the parties stood renewed and, therefore, the tenancy could not be terminated before the expire of the renewed period.

4. The mense profits have been awarded at highly excessive rates.

1. SERVICE OF NOTICE

4. According to the plaintiffs notice dated 3rd June, 1994 was served by the plaintiff on the defendant terminating its tenancy. The defendant denied service of notice of termination of tenancy. One of the plaintiffs Shri J.N. Puri appeared as PW-2 and stated that the plaintiff had sent a notice dated 3rd June, 1994 through their advocate terminating the tenancy of the defendant appellant w.e.f. 30th June, 1994. He proved a copy of the notice as Ex. PW-2/2 and the postal receipt as Ex. PW-2/3. He stated that the said notice had been duly served on the defendant. He admitted that the AD card was not received by them. He further stated that it was also not traceable in the office of their advocate. It appears that the appellant is trying to capitalise on the non-availability of the AD card and the entire argument has been built up on that basis. As against this evidence of the plaintiffs regarding service of notice, the stand of the appellant in the written statement and in the evidence of its witness DW-1 P.T. Mittal, Company Secretary, is that of bare denial of receipt of notice. However, Mr. P.T. MITTAL, the Company Secretary while appearing as a witness for the defendant admitted that the address of the defendant given on the notice Ex. PW - 2/2 was correct. In view of this admission about the address given on the notice being correct and in view of Ex-PW-2/3 which is a postal receipt establishing despatch of notice through post, the plaintiff has successfully discharged the onus of service of notice. The learned counsel for the appellant argued that the respondent plaintiff should have supreme evidence from the post office to established as to on whom and on what date the notice was served and in the absence of such evidence, it was submitted, that the service of notice is not established. We are unable to agree with this contention raised on behalf of the appellant. The requirement of Section 106 of Transfer of Property Act is fully met in the facts and circumstances of this case insomuch as there is proof of notice being correctly addressed to the defendant/appellant and there is further proof of the notice having been sent by registered post. This raises a presumption under Section 27 of the General Clauses Act about the service of notice. The defendant has not led any evidence to rebut this presumption. This we find no merit in the argument raised on behalf of the appellant that no notice of termination of tenancy was served on the appellant.

2. NOTICE DOES NOT ALLOW CLEAN 15 DAYS TIME TO THE DEFENDANT.

5. A perusal of the notice dated 3rd June, 1994 Ex. PW-2/2 shows that it terminates the tenancy with the end of the month, i.e., 30th June, 1994 and states that w.e.f. 1st July, 1994 the defendant will become unauthorised occupant in the event of it not vacating the premises by the end of the month. According to the respondent plaintiff, the notice was posted on 4th June, 1994. The plaintiff stated as PW-2 that normally for local post, it takes two to three days for delivery. This Court has also been taking the view that local postal delivery normally takes two-three days or may be, to give maximum liver age for purposes of this case, even five days. The notice terminates the tenancy with the end of the month of June which allows more than clear 15 days' period to the tenant. It is also to be noted from the notice that it ends with the month of tenancy. The tenancy is as per the English calender month, i.e. from 1st of every month to the end of the month. It has further been stated in the notice that if according to the defendant tenant there was any other date on which the tenancy month was to end, the notice could be taken as terminating the tenancy with the end of such a tenancy month. Nothing was urged before us to suggest that the month of tenancy was other than the English calender month. Thus we find no merit or substance is this point raised on behalf of the appellant.

3. RENEWAL OF LEASE.

6. The initial lease agreement dated 15th March, 1988 is admittedly an unregistered document. Such a document even if it contains a renewal clause, the same cannot be relied upon or pressed in service. Nothing has been shown which could lead to a conclusion that the lease was renewed for a particular period. In other words no agreement for renewal of lease has been established on record. The lease cannot be said to have been renewed by implication. Thus the agreement regarding renewal of lease is totally misconceived and untenable and the same is hereby rejected.

4. MENSE PROFIT.

7. At the outset we may note that the learned counsel for the respondent landlord while insisting that the decree for MENSE profits passed by the trial court was fully justified in the facts and circumstances of the case, submitted at the Bar that he would leave the question of appropriate amount of MENSE profit to the discretion of the Court.

8. The case of the appellant is that the MENSE profits could not be more than Rs. 36.50 p per sq. ft. w.e.f. 1st June, 1994. This amount is being suggested on the basis of the clause in the unregistered lease regarding enhancement of rent at the time of renewal of lease. So far as the pleadings on this aspect are concerned, we may note that in the notice dated 3rd June, 1994 Ex. PW-2, the landlord had claimed MENSE profits @ Rs. 50/- per sq. ft. after the date of termination of tenancy in the event of the tenant not vacating the premises by the due date. In the plaint MENSE profits were claimed @Rs. 100/- per sq. ft. from the date of institution of the suit till delivery of possession. Prior to this period MENSE profits were claimed @ Rs. 50/- per sq. ft. from 1st July, 1994 till 31st January, 1995. The trial court has decreed the suit on both these aspects as per prayer of the plaintiff and has also awarded interest @18% per annum on the arrears of MENSE profits awarded for the period from 1st July, 1994 to 31st January, 1995. The plaintiff/respondent besides stating that the rate of rent prevailing at the relevant time in the area was Rs. 100/- per sq. ft. produced PW-1 who is alleged to be a property broker of the area. The witness also stated that the prevailing rate of rent in the area where the premises in suit was located was Rs. 100/-per sq. ft. per month. The defendant did not lead any evidence on this aspect. In view of the failure of the defendant to lead any evidence on this aspect of the case, the plaintiffs get the advantage inasmuch as there is no rebuttal to the evidence led by them. However, this Court cannot lose sight of the fact that in similar other cases regarding similar properties in the same locality i.e., Connaught Place area, what is the rate of mense profits being generally upheld by this Court for the same point of time. Regarding decree for mense profits passed @ Rs. 50/- per sq. ft from '1st July, 1994 to 31st January, 1995 no interference is called for particularly in view of the fact that mense profits were claimed at this rate in the notice Ex. PW-2/2 also and there was no rebuttal to this claim in the notice. The suit was instituted on 28th February, 1995 while the decree was passed on 19th November, 1997.

9. Keeping the measure of mense profits being adopted by this Court in similar other cases for similar properties and for similar period, we are of the view that the rate of Rs. 60/- per sq. ft. per month for the period from the date of suit till recovery of possession will be an appropriate rate of apply for purposes of determining the amount of mense profits in this case. The decree of the trial court is accordingly modified to the extent that for mense profits from the date of institution of the suit till recovery of possession, the defendant appellant will be liable to pay @ Rs 60/- per sq. ft. per month.

10. The appeal is dismissed subject to the aforesaid modification in the decree of the trial court. The parties are left to bear their can costs in the appeal.