Delhi High Court
Sh. R.K. Chaudhary @ Rajan And Anr. vs Prof. Ram Prakash on 7 January, 2008
Author: P Nandrajog
Bench: P Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. These are cross objections filed by the respondent. The regular second appeal was dismissed on 20.3.2007. But unfortunately the cross objections remained pending.
2. Following question of law needs to be answered with reference to the cross objections:
Whether the Courts below were justified in ignoring the rents reflected in Ex. PW-1/28 to Ex. PW-1/30 and additionally were the Courts justified in not awarding damages payable, if lessee continued to occupy the leased premises beyond the period of lease, at 6 times the agreed rent.
3. I am concerned with the period 1st May 1997 onwards till appellant vacated the suit property.
4. Possession has since been with the respondent.
5. The property in question is the basement and ground floor of property bearing Municipal No. B-48, South Extension, Part I, New Delhi. As per registered lease deed, Ex.PW-1/1, the property was let out for a period of 5 years. For the first three years agreed monthly rent was Rs. 9,500/-. With effect from 1.5.95 till 30.4.1997 i.e. date of expiry of the lease, rent stood enhanced to Rs. 10,925/- per month.
6. Admittedly, the lease clearly stipulates (Vide Clause VII) that the demise property has been let out for residential use according to conditions prescribed by DDA and that the lessee shall abide by the terms of the lease.
7. The lessee referred to in the lease deed is obviously the the appellant.
8. Exhibits PW-1/28 to PW-1/30 are three leases of the adjoining property B-50, South Extension, Part I, New Delhi. The three leases are between different owners of different portions of property No. B-50, South Extension, Part I. But, the lessee is the same.
9. The lessee under the three lease agreements is M/s. Aptex Ltd., a public limited company. The three lease deeds have been executed on 18.6.1997. The three leases relates to three different portions on the second floor of the building.
10. Clause IV 'd' of the three leases is relevant for the reason it shows that the three portions on the second floor were let out for a commercial purpose. It reads as under:
(d) Not to make any structural alteration of a permanent nature in the Premises as would permanently damage or destroy the Demised Premises except those which are necessary for the Lessee to make in order to carry on its business as however not to cause any damage to any other portion of the said building. But the Lessee can erect and remove temporary/partition walls.
11. The Courts below have ignored the rent stipulated in the lease deeds Ex. PW-1/28 to Ex. PW-1/30 for the reason, though an adjoining building, letting was for a commercial purpose.
12. The respondent has been awarded mesne profits with effect from 1.5.1997 @ Rs. 20,000/- per month.
13. Reasons given by the Courts below is that the lease agreement executed in May 1992 was a consent lease and for 3 years agreed rent was Rs. 9,500/- per month. Thereafter, agreed rent for the next 2 years i.e. May 199 to May 1997 was Rs. 10,925/- per month. there from, an inference has been drawn that the rentals increased by about 10% over 2 years. Taking cognizance of general increase in rent in Delhi a fair rental on weighted average basis has been determined at Rs. 20,000/- per month.
14. It is urged by the respondent that notwithstanding Ex. PW-1/1 stipulating that the property would be used for a residential purpose, it was actually used for a commercial purpose. But, respondent conceded that there was no evidence led on this aspect of the matter. Second contention urged is that 6 times agreed rent which was claimed in the suit is not penal rent. The argument was elaborated with reference to the lease deeds Ex. PW-1/28 to Ex. PW-1/30. Following judgments were cited by the respondent to urge that there has been an increase in rent in Delhi:
A. Martial Sons and Co. v. Sahi Oretrans Pvt. Ltd.
B. 1994 (2) AIR CJ 500 Dr. P.S. Bedi v. The Project and Equipment Corporation Of India.
C. 2005 (1) RCJ 98 (SC) Anderson Wright and Co. v. Amar Nath Raj and Ors.
D. 2005 I AD (SC) 219 Atma Ram Properties (P) Ltd. v. Federal Motors Pvt. Ltd.
15. In respect of the first submission urged by the respondent, suffice would it be to note that there is no evidence on record that the suit property was used for a commercial purpose. The lease deed, Ex.PW-1/1, admittedly binds the appellant to use the property for a residential purpose. Thus, respondent cannot rely upon leases of properties where letting is for a commercial purpose save and except if there is evidence to show that in the area in question residential and commercial properties were fetching comparable rents.
16. No such evidence has been shown to me.
17. The rents recorded in Ex. PW-1/28 to Ex. PW-1/30 cannot therefore be considered as good evidence to determine the rent which the suit property would have fetched after 1.5.1997. The reason is obvious. The three leases pertain to commercial tenancies.
18. No doubt, land used of property No. B-50, South Extension, Part I is residential, but it is a matter of knowledge that residential buildings have been converted into commercial buildings and misused with blatant impunity.
19. The three leases, Ex. PW-1/28 to Ex. PW-1/30 show that the said building has a lift and has an electricity connection of a high rating.
20. I thus hold that both Courts below were justified in ignoring the rents which were recorded in Ex. PW-1/28 to Ex. PW-1/30.
21. In respect of the decisions cited by the respondent I may only note that the rent in an area is a matter of fact to be gathered from the evidence brought before the court. The only legal principle which can be discerned from the decisions is that rents of similar and comparable properties can be looked into while determining the mesne profits.
22. Both Courts below have given good reasons as to why mesne profits has been determined at Rs. 20,000/- per month.
23. In respect of the plea of the respondent that 6 times agreed rent cannot be labled as a penal rent, suffice would it be to record that ex facie, 6 times agreed rent is penal in nature. But, I need not trouble myself on this issue for the reason the lease between the parties, Ex.PW-1/1, does not contain any covenant that in case the tenant overstays he would be liable to pay penal rent which would be 6 times the agreed rent. The lease deed only records that in case the lessee does not vacate the premises he would be liable to pay damages.
24. I find no merits in the cross objections.
25. The cross objections are dismissed. 26. As noted hereinabove the appeal was already disposed of on 20.3.2007.
27. The file be thus consigned to the record room.
28. No costs.
