M/S Hindustan Lever Limited ... vs Shri Dan Singh Bawa And Others
2008 Latest Caselaw 1257 Del

     *                 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