Naresh Chandra Jain & Ors. vs Union Of India
2000 Latest Caselaw 150 Del

ORDER

K.S. Gupta, J.

1. Plaintiffs filed this suit, inter alia, alleging that they are the owners of property No. C-1/52, Safdarjung Development Area, New Delhi having the carpet area on the ground floor of 2670 sq. ft. and on first, second and third floors of 2601 sq. ft. each, totalling 10,473 sq. ft.

Before handing over the vacant possession of property on 17th December, 1973, the plaintiff No. 1 had fully discussed the terms and conditions on which the plaintiffs were agreeable to lease it out with the Commander, Indo-Tibetan Border Police. Those terms and conditions through the letter dated 17th December, 1973 were communicated by plaintiff No. 1 to the Inspector General of Police, I.T.B.P. (Ministry of Home Affairs) Government of India, R.K. Puram, New Delhi. Rent was to be determined at commercial rate together with composition fee @ 20% of the rent as the property was to be used for office purpose by the defendant. It is stated that draft lease agreement dated 14th February, 1975 sent by the defendant to plaintiffs for signature(s) and registration, contained the rate of rent as Rs. 6,216/- per month provisionally which was contrary to the terms agreed upon at the time of taking possession of tenanted property by the defendant. In aid draft lease agreement, lease was shown to have commenced w.e.f. 17th December, 1973. Said rent was fixed by CPWD on the basis of rates meant for residential user. It is further alleged that the plaintiffs were not paid rent from the date of taking possession of property till the draft lease agreement was sent by defendant and an impression was given that they would not get any rent unless the lease agreement was executed. Plaintiffs had thus no option but to sign the lease agreement dated 14th February, 1975 and to get the same registered. While sending the lease agreement back after signature(s) to the defendant, the plaintiff No. 1 forwarded a letter therewith dated 14th February, 1975 protesting against the fixation of rent at the above rate. It is alleged the the plaintiffs are entitled to have the rent fixed on the basis of commercial user @ Rs. 1.15 per sq. ft. On the aforesaid total carpet area, the rent calculated @ Rs. 1.15 per sq. ft. comes to Rs. 12,043.95 per month. It is pleaded that despite repeated correspondence, the defendant have failed to pay the difference in rent @ Rs. 5,827.95 per month for the period from 17th December, 1973 upto 30th April, 1976 on which date tenanted property was vacated by them and the total amount of difference in rent comes to Rs. 1,66,096.57. It is further pleaded that defendant are liable to pay Rs. 5,600/- towards damage caused to tenanted property which was checked and verified on behalf of defendant at the time of handing over the its possession of on 30th April, 1976. Plaintiffs are also entitled to claim interest on the said amount of difference in rent @ 12 % per annum and total amount of interest payable upto the date of filing of suit comes to Rs. 12,694.03. It is claimed that aforesaid two letters dated 17th December, 1973 and 14th February, 1975 are to be read in conjunction with the lease agreement in the matter of determination of rate of rent of the property. It was prayed that a decree for Rs. 1,84,390.60 with costs and interest pendente-lite and future @ 18 % per annum may be passed in favour of the plaintiffs and against defendant.

2. Defendant contested the suit by filing a written statement. It is alleged that lease agreement between the parties was executed on 26th February, 1975 and as the leased property had been designed and constructed for residential purpose, the plaintiffs cannot claim rent at commercial rate merely on the ground of property having been taken on lease for official purpose. Rent @ Rs. 6,216/- per month was assessed on the basis of measurements taken by CPWD. It is further pleaded that the plaintiffs once having executed the lease agreement, cannot claim rent at commercial rate. It is denied that the rent fixed by defendant was provisional as alleged. Although, the receipt of the plaintiffs' letter dated 17th December, 1973 and 14th February, 1975 is not denied but it is stated that all the letters written by the plaintiffs before the signing of lease agreement stood superseded on execution of the lease agreement. It is alleged that no undertaking either orally or in writing was given by any official of the defendant to pay rent over and above the rate assessed by the Directorate of Estate. It is denied that the plaintiffs were forced to sign the lease agreement or they signed it under protest as alleged. Liability to pay the difference in rent @ Rs. 5,827.95 from 17th December, 1973 to 30th April, 1976, Rs. 5,600/- towards the alleged damage caused to property and interest @ 12 % per annum as claimed, is emphatically denied.

3. On the pleadings of the parties, following issues were framed :-

1. Whether the monthly rent at Rs. 6,216/- per month mentioned in the lease-deed was provisional rate of rent?

2. Whether the letters dated 17.12.73 and 14.2.75 form part of the lease-deed?

3. Whether plaintiffs are entitled to claim the rent at Rs. 12,043.95 per month plus 20% composition fee for the period in question?

4. Whether any damage was caused to the building and the defendants are liable to pay Rs. 5,600/- on account of alleged breakage and damage?

5. Whether the plaintiff is entitled to any interest, if so at what rate and to what amount?

6. What amount is due to the plaintiffs from the defendant?

7. Relief.

4. These issues can be taken together for discussion. Naresh Chandra Jain, plaintiff No. 1 as PW-2 deposed that possession of property No. C-1/52, Safdarjung Development Area was handed over to Indo Tibetan Border Police on 17th December, 1973 alongwith the terms and conditions as contained in his letter Ex. P-17 dated 17th December, 1973. The defendant could not complete the formality of executing the lease agreement till 14th February, 1975 nor did they pay any rent to the plaintiffs from the date of taking possession of property. He was asked to sign the lease agreement Ex. P-9 and controversy regarding fixation of rent on the terms and conditions contained in letter Ex. P-17, was to be settled later on. Letter Ex. P-18 date 14th February, 1975 was sent alongwith the lease agreement Ex. P-9. He further deposed that measurements as noted in Ex. PW-2/1 were taken by the officers of CPWD in his presence and the total carpet area of property as determined by CPWD is 10,473 sq. ft. Rent of the property @ Rs. 62,616/- per month was fixed provisionally. The defendant seem to have got the measurements of carpet area taken by themselves without informing him. In lease agreement Ex. P-9, carpet area of property has not been mentioned. He further deposed that he was given the assurance that rent will be paid at commercial rate of Rs. 1.15 per sq. ft. as prevailing in the commercial areas at that time. Till date, the defendant have neither settled the rate of rent nor paid the rent at commercial rate. Aforesaid property was rented out to Indo Tibetan Border Police but later on possession thereof was transferred to Bureau of Police Research and Development without his consent. In cross-examination, he admitted that Ex. P-9 is the lease agreement executed between the parties. Immediately after the signing of the lease agreement, he had objected to the rate of rent as noted therein through a letter dated 14th February, 1975. He denied the suggestion that he had agreed to charge rent @ Rs. 6,216/- per month. Defendant examined A.P.

Nautiyal, DW-1 alone. However, his testimony does not throw any light on the issue of fixation of rent of the property.

5. In support of the submission that the plaintiffs are entitled to fixation of rent at commercial rate, Sh. D.K. Kapoor appearing for the plaintiffs heavily relied upon the communication Exhibits P-17, P-18, P-1, P-2, P-4 and P-5 exchanged between the parties to suit etc. in addition to testimony of said PW-2, Letter Ex. P-17 dated 17th December, 1973 was sent by plaintiff No. 1 to the Inspector General, I.T.B.P. (Ministry of Home Affairs), R.K. Puram, New Delhi simultaneously with the handling over of possession of the said property to Indo Tibetan Border Police for running the office therein. Body of this letter which is relevant, reads as under:-

"I am in receipt of your letter No. ITBP-Const/73(176) dated 17-12-1973 and further confirm the discussions that I had with your commander Joginder Singh Ji, in reply, I reiterate as under :-

(1) The Estate Department does not normally assess the rent of houses situated in residential areas of Delhi that too not more than eighty paisa per sq. ft. as such the composition fees payable to DDA and extra charges of property tax payable to the Municipal corporation in addition to the eighty paisa per sq. It. will be to your account and paid to me alongwith the monthly rent.

(2) As you are using the house for office purpose, I should be allowed the rate of office use allowed in commercial area, by Estate Department.

(3) Some definite arrangements to be made for payment of rent on time to me.

(4) The rent of the ground floor be paid to me at the rate on which other floors are assessed.

(5) Early assessment of rent be arranged together with written permission from DDA so that all pending affairs are sorted out and that the accumulation of rent later on is avoided."

6. Letter Ex. P-18 dated 14th February, 1975 was forwarded by plaintiff No. 1 to the Inspector General, I.T.B.P. alongwith the lease agreement Ex. P-9 protesting against the fixation of rent @ Rs. 6,216/- per month. Omitting immaterial portions, this letter which is relevant, reads thus :-

"In view of the fact that no rent has so far been paid to me even though the house has been occupied by you with effect from 17.12.1973 and in view of the fact that you are not agreeable to introduce any safety clause suggested by me in the lease deed sent by you, to avoid further delay and to enable me to get the rent regularly, I have signed the lease deed forwarded by you under your letter ITBP-Const/73(176) dated 13.2.1975 subject to the following proviso:

a) that it is my contention that the rent assessed now the CPWD is not fare to me as the same has not been calculated on the carpet area of 10591 Sft already measured and assessed by the CPWD in 1967. Actually at the time of agreeing to rent out the building to you, the question to be decided only was in respect of the rent to be assessed by CPWD at the then prevalent rate for commercial use and on carpet area already measured earlier as per copies of certificates already delivered.

I would be grateful to get an acknowledgement of this letter intimating that you are moving the Government to mete out fair deal to me."

7. As is manifest from the statement of PW-2, possession of tenanted property No. C-1/52 was transferred to Bureau of Police Research and Development by Indo Tibetan Border Police whom it was let out under the lease agreement Ex. P-9, Ex. P-4 is the copy of letter Ex. P-2 dated nil April, 1976 send by the B.L. Vohra, the then Assistant Director working in Bureau of Police Research and Development to plaintiff No. 1 Contents of this letter are reproduced as under :-

"I am directed to inform you that we have received a copy of the lease agreement signed on 14th February, 1975 between you and the Secretary, Ministry of Home Affairs, New Delhi, from the Inspector General of Police, Indo Tibetan Border Police, New Delhi stating that the lease agreement is to be read with in conjunction with your letter dated 17.12.1973. Your claim regarding reconciliation of the area measured by CPWD in 1967 and 1974 and assessment of the rent of your building at commercial rates is being perused with the Ministry of Home Affairs and Directorate of Estates, New Delhi."

8. Contents of yet another letter Ex. P-5 dated 26th March, 1976 sent by the Deputy Inspector General (HQ) on behalf of Inspector General, I.T.B.P. to the Deputy Director, Bureau of Police Research and Development which are relevant read thus :-

"(1) As you are aware that certain claims of Sh. N.C. Jain owner of building C-I/52, Safdarjung Development Area are to be settled. He in his letter (copy of which is enclosed) has represented for the early settlement of the claims.

(2) We have already given the para-wise comments on similar representation of Sh. N.C. Jain to M.H.A. (copy of u.o. enclosed for ready reference) and orders of M.H.A. are still awaited. The commitments made to Sh. Jain will have to be honoured."

9. Again in the letter Ex. P-1 dated 30th April, 1976 sent by the Deputy Inspector General (HQ) on behalf of Inspector General, I.T.B.P. to the Deputy Director, Bureau of Police Research & Development, it was reiterated that Bureau of Police Research & Department being the tenant in property may honour the commitments given to Sh. N.C. Jain in the matter.

10. From the aforesaid letter Ex. P-17 coupled with deposition of PW-2, it is manifest that possession of said property No. C-1/52 was delivered to Indo Tibetan Border Police on the understanding that the plaintiffs will be paid rent at the rate then prevailing in commercial areas to be determined by the Directorate of Estate. Had it not been so, there was no occasion for the Deputy Inspector General (HQ) to have asked the Bureau of Police Research & Development who was then in occupation of property, in the aforesaid letters Exs. P-5 and P-1 to honour the commitments made to plaintiff No. 1. Commitments referred to in both the letters obviously relate to fixation of rent of tenanted property at commercial rate. As is apparent from yet another letter Ex. P-2, this issue together with the issue of reconciliation of carpet area of said property was even being pursued by Bureau of Police Research & Development with the Ministry of Home Affairs. In the face of aforesaid evidence, it is not open to the defendant to say that on plaintiffs' having executed the agreement to tenancy Ex. P-9 and tenanted property being designed and constructed for residential purpose, the plaintiffs can not claim rent at commercial rate. It is pertinent to note that the said agreement of tenancy, Ex. P-9 came to be executed after about 1-1/4 years of the handing over of possession of property by the plaintiffs to the defendants. According to the plaintiffs, they were not paid any rent during the said period and for that reason they were compelled to execute Ex. P-9 which fact was also brought to the notice of defendant through the aforementioned letter Ex. P-18 dated 14th February, 1975 forwarded with Ex P-9 to the defendant. Defendant have not led any evidence regarding the rates of rent then prevailing in the nearby commercial areas nor did they put any suggestion in cross-examination to PW-2 that the rent @ Rs. 1.15 sq. ft. was not prevailing at that time. Ex. PW-2/1 dated 19th April, 1974 is the letter sent by the Surveyor of Works(I), (NDZ), Central PWD, Nirman Bhawan, New Delhi to the Director of Estate, Nirman Bhawan with reference to letter No. 4/39/73-Regn. dated 8th April, 1974 enclosing therewith the measurements of aforesaid property No. C-1/52, Safdarjung Development area. Measurements enclosed with Ex. PW-2/1 disclose that the total carpet area including uncovered area on the third floor of property, is 10473 sq. ft. Rent calculated on this total area @ Rs. 1.15 per sq. ft. comes to Rs. 12,043.95 per month. Thus, the amount of the difference in rent for the period from 17th December, 1973 upto 30th April, 1976 comes to Rs. 1,66,096.57 as claimed in the suit.

11. The plaintiffs being entitled to claim rent @ Rs. 12,043.95 per month, the defendant are liable to pay the said amount to the plaintiffs. Issues are answered accordingly.

12. Deposition for PW-2 is silent as to how the amount of Rs. 5,600/- towards damages allegedly caused to property, was calculated or that any such amount was actually incurred by the plaintiffs in carrying out the repairs in property. In the absence of evidence to that effect, plaintiffs are not entitled to recover the said amount from the defendant.

13. Testimony of PW-2 is further silent on the point of entitlement of interest and also the rate thereof. In the absence of such evidence, the plaintiffs are not entitled to claim Rs. 12,694.03 by way of interest from the defendant.

14. In view of my findings on the aforesaid issues, suit is decreed for Rs. 1,66,096.57 with proportionate costs in favour of the plaintiffs and against defendant. In case the decretal amount is not paid by the defendant within a month from today, the plaintiffs will be entitled to future interest @ 6% per annum on the said amount.