Rohit Garg vs Punjab National Bank Through Its ...
2007 Latest Caselaw 1427 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The plaintiff has filed a suit for possession of the Mezzanine Floor of No. 1, Kaushalya Park, New Delhi for recovery of Rs. 23,48,361.45 towards arrears of damages and for recovery of future damages/mesne profits at Rs. 1,19,250/- per month.

2. The plaintiff is the owner of the suit premises and it is stated that on 17.5.1983 plaintiff's father, as the natural guardian, entered into a lease deed with Hindustan Commercial Bank Limited to give the demised premises on lease for running the Regional Office of the Bank at Rs. 7/- per sq.ft. Since the covered area was wrongly mentioned as 1302 sq.ft., another lease deed was executed on 23.9.1983 correctly mentioning the area as 1325 sq.ft. The plaintiff has attained majority since the execution of the lease deed prior to the filing of the suit.

3. Hindustan Commercial Bank Limited subsequently merged with Punjab National Bank and the tenancy devolved on Punjab National Bank. It may be stated herein that initially the officers of Punjab National Bank were imp leaded as defendants but by a subsequent amendment, the Bank alone now remains as the defendant.

4. The plaintiff claims that the lease was not registered and the possession ought not to have been handed over to Punjab National Bank. However, it is not in dispute that the defendant continued to receive rent from Punjab National Bank. A legal notice was initially sent on 23.6.1995 (Ex.PW1/2) for determining the tenancy and asking the premises to be forthwith handed over. Another legal notice was sent on 27.8.1998 (Ex.PW1/6) asking the premises to be vacated on the last date of the tenancy month falling after 15 days from the date of the service of the notice. It is not in dispute that in terms of this notice, the tenancy was sought to be terminated w.e.f. 30.9.1998. The premises were, however, not vacated and the suit was filed.

5. The suit was resisted by the defendant. The determination of the tenancy is stated to be wrongful and the defendant has denied obligation to pay damages.

6. At the stage of the suit for admission/denial of documents, on 23.7.2003 the possession was handed over by the plaintiff to the defendant, the keys being handed over before the Joint Registrar. The relief of possession, thus, became infructuous. However, the claim of the plaintiff for damages and mesne profits subsisted and, thus, issues were framed on 10.8.2004 as under:

1. Whether the suit is maintainable in view of the fact that there is no privity of contract between the plaintiff and the defendant? OPP

2. Whether the suit is liable to be dismissed under Order 7 Rule 11 CPC? OPD

3. Whether the suit has been valued properly for purposes of court fee and jurisdiction? OPP

4. Whether the lease of the defendants was validly determined vide legal notices dated 23.6.1995 and 27.8.1998. If so its effect? OPD

5. Whether the payments sent by the defendant towards rent were accepted by the plaintiff without any objection after determining the tenancy vide legal notice dated 23.6.1995? OPD

6. Whether the plaintiff is entitled to damages/mesne profits amounting to Rs. 23,48,361.45 on the date of filing of the suit? OPP

7. Whether the plaintiff is entitled to future damages/mesne profits @Rs.1,19,250/- from date of filing of suit till date of recovery of possession? OPP

8. Whether plaintiff is entitled to pendente lite and future interest @24% p.a. or at any other rate? OPP

9. Relief

7. I have heard learned Counsel for the parties who have taken me through the pleadings, documents and evidence.

ISSUE No. 1: Whether the suit is maintainable in view of the fact that there is no privity of contract between the plaintiff and the defendant?

8. Learned Counsel for the defendant does not dispute that this issue really does not survive. The defense about privity of contract was taken at the time when individual officers were sought to be imp leaded as defendants but by reason of amendment of the plaint, it is only the Punjab National Bank which is the defendant. The privity between the parties cannot be denied as a landlord and tenant. The issue is answered in favor of the plaintiff. ISSUE No. 2: Whether the suit is liable to be dismissed under Order 7 Rule 11 CPC?

9. The onus of this issue is on the defendant and learned Counsel for the defendant states that he does not press this issue. Issue is accordingly answered in favor of the plaintiff.

ISSUE No. 3: Whether the suit has been valued properly for purposes of court fee and jurisdiction?

10. The valuation of the suit is based for possession on the annual rental value prior to determination of the lease and for recovery of damages ad valorem court fee has been paid. On the relief of mesne profits, the plaintiff had undertaken to pay the requisite court fee. The suit is, thus, properly valued for court fee and jurisdiction and this is not even disputed by learned Counsel for the defendant. The issue is answered in favor of the plaintiff. ISSUE No. 4: Whether the lease of the defendants was validly determined vide legal notices dated 23.6.1995 and 27.8.1998. If so its effect?

11. Learned Counsel for the plaintiff fairly states that the legal notice dated 23.6.1995 (Ex.PW1/2) cannot be said to be in conformity with Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the said Act). Learned Counsel, however, states that the tenancy was validly determined by the notice dated 27.8.1998 (Ex.PW1/6). Learned Counsel for the defendant also does not dispute that Ex.PW1/6 meets with the requirement of Section 106 of the said Act.

12. The result is that the tenancy is held to be validly determined by the legal notice dated 27.8.1998 whereby the defendant was required to vacate the tenanted premises by 30.9.1998. The issue is answered accordingly. ISSUE No. 5: Whether the payments sent by the defendant towards rent were accepted by the plaintiff without any objection after determining the tenancy vide legal notice dated 23.6.1995?

13. It is not in dispute that there is no rent received by the plaintiff after 30.9.1998 till filing of the suit. Since the legal notice dated 23.6.1995 (Ex.PW1/2) is invalid, there can be no claim of damages prior to that period nor can receipt of any rent by the plaintiff prior to 30.9.1998 invalidate the subsequent notice dated 27.8.1998 (Ex.PW1/6) which required the defendant to vacate the tenanted premises by 30.9.1998. The issue is answered accordingly. ISSUE No. 6: Whether the plaintiff is entitled to damages/mesne profits amounting to Rs. 23,48,361.45 on the date of filing of the suit?

14. In view of the fact that the notice of termination dated 23.6.1995 (PW1/2) is not valid, there can be no claim of the plaintiff for damages/mesne profits up to 30.9.1998. The amount claimed is for this period since the suit has been instituted on 10.10.1998. The amount is claimed for damages over the rent up to the period 22.9.1998 as per Annexure 'A' to the plaint. The plaintiff is, thus, not entitled to recover this amount and the issue is answered against the plaintiff. ISSUE No. 7: Whether the plaintiff is entitled to future damages/mesne profits @Rs.1,19,250/- from date of filing of suit till date of recovery of possession?

15. The plaintiff has claimed mesne profits @Rs.1,19,250/- per month from the date of filing of the suit till date of recovery of possession. The plaintiff has led his own oral evidence but has led no documentary evidence of any nearby property on rent. The documents filed by the plaintiff included no lease deed having been proved by summoning any of the parties to the lease agreement. The only document relevant in this behalf has been produced by the defendant itself, being lease deed dated 18.8.2004(Ex.D4/A). This is the lease in respect of the ground floor of the adjacent property bearing 2, Kaushalya Park, Hauz Khas, New Delhi. In view of this position, both the learned Counsel for the parties rely only on this document for purposes of determination of the mesne profits.

16. Ex.DW4/A is the lease deed dated 18.8.2004 Since the possession was handed over on 23.7.2003, mesne profits have to be determined for the period 1.10.1998 to 23.7.2003. Ex.DW4/A for the ground floor of 2725 sq.ft. prescribes a monthly rental of Rs. 71,477/- from 1.8.2003. This would amount to a rental of approximately Rs. 26.26 per sq.ft. The lease is also for another Nationalised Bank, Syndicate Bank. There is, thus, not only similarity about premises but even user is identical. There is, of course, a difference which would arise on account of the fact that this lease deed is for the ground floor while in the present case, the mesne profits have to be determined for the Mezzanine Floor which is above the ground floor.

17. It is not disputed that some discount would have to be made in respect of the aforesaid and there is bound to be some element of subjectivity on this aspect. Taking all the facts and circumstances, I deem it appropriate to determine the rate of Rs. 20 per sq.ft. for the premises in suit. It may also be noticed that though the lease deed is for the period 1.8.2003 onwards, for the period in question from the end of 1998 to July, 2003 the rental almost remained stagnant and this position is not even disputed.

18. If the rate of Rs. 20 per sq.ft. is applied to the suit premises, amount would come to Rs. 26,500/- per month. The defendant paid to the plaintiff an amount of Rs. 14,258.65 per month @Rs.10.76 per sq.ft., being the last paid rent. If this amount is deducted from the amount of Rs. 26,500/-, the balance amount payable as damages would be Rs. 12,241.35 per month from 1.10.1998 to 23.7.2003, amounting to Rs. 7,07,142/-.

19. The issue is accordingly answered to the aforesaid extent in favor of the plaintiff.

ISSUE No. 8: Whether plaintiff is entitled to pendente lite and future interest @24% p.a. or at any other rate?

20. Since the claim is for mesne profits and the past claim for damages stand rejected, I see no reason to grant any interest on this amount till date. However, taking into consideration the prevailing rate of interest, the plaintiff is held entitled to interest @12% per annum, simple interest, on this amount in case the mesne profits are not paid within 30 days from today.

21. The issue is answered accordingly. RELIEF

22. A decree for Rs. 7,07,142/- is passed in favor of the plaintiff and against the defendant along with interest @12% per annum, simple interest, on the expiry of one month from the date of the decree till payment. The plaintiff shall be entitled to proportionate costs including costs for the relief of possession. On the plaintiff paying the court fee on the amount of mesne profits so determined, decree be issued.

23. The decree sheet be drawn accordingly.