M/S. A.R. Chadha & Co. & Ors. vs Punjab & Sind Bank
2008 Latest Caselaw 1884 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CS(OS)1232/2001

%                                Date of decision : 23.10.2008

M/s. A.R. Chadha & Co. & Ors.                   ....... Plaintiffs
                       Through: Mr. L.K. Garg, Advocate

                               Versus

Punjab & Sind Bank                             ....... Defendant
                       Through: Mr. Rajinder Wali, Advocate


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?                 No

2.    To be referred to the reporter or not?          No

3.    Whether the judgment should be reported         No
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The suit was instituted by the plaintiffs as landlords for

ejectment of the defendant bank from mezzanine floor admeasuring

4265 sq. ft. of C-14 to C-16, Atma Ram House, Connaught Place,

New Delhi, after the expiry of the term of the lease deed dated

9.12.1996 for a term of six years from 1.4.1995 to 31.3.2001 and for

recovery of mesne profit/damages for use and occupation w.e.f.

1.4.2001 @ Rs.80/- per square feet per month. The suit was

instituted on 30.5.2001. The defendant filed a written statement

contesting the claim of the plaintiffs. However, the parties filed IA

no.7571/2004 u/o.23 rule 3 of the CPC, wherein the defendant gave

an undertaking to vacate the premises on or before 31.8.2005.

Though, there was no admission in the said application by the

defendant of the entitlement of the plaintiff to a decree for

ejectment/possession, but the prayer in the said application was for

decree in the suit in terms of the application and for acceptance of

undertaking on behalf of the defendant and for ordering an inquiry

u/o.20 rule 12 of the CPC for determination of the mesne profit from

1.4.2001.

2. The aforesaid application of the parties for compromise came

up before the court on 10.11.2004, when the application was allowed

and the undertaking tendered in support of the application was

accepted and the suit qua the question of vacation and possession

disposed of in terms of settlement recorded in the application.

3. On the next date i.e. 24.2.2005, this court again noted that on

10.11.2004 undertaking of the defendant to deliver possession had

been recorded and the suit qua relief of vacation and possession the

premises was disposed of and what remained to be adjudicated was

the question of compensation for unauthorized use and occupation of

the premises and the following issue was framed :

"Whether the plaintiff is entitled to claim compensation for unauthorized use and occupation/mesne profit for the demised premises ? If so, at what rate and for what period. OPP"

and the matter was posted for evidence.

4. The plaintiffs examined only one witness i.e. the plaintiff no.3

Shri C.M. Chaddha. The defendant examined two witnesses. The

defendant, thereafter sought to examine a third witness also which

request was allowed with right to the plaintiffs to lead evidence in

rebuttal. The defendant thereafter examined the third witness and

the plaintiff no.3 Mr. C.M. Chadha examined himself in rebuttal.

5. Though the prayer in the application for compromise was for

ordering an inquiry u/o.20 rule 12 of CPC and in which inquiry only

rate and period of mesne profit is germane, but from the narrative

aforesaid, it will be noticed that neither did this court pass a decree

for possession nor return any finding on the entitlement of the

plaintiff to the relief of possession. This court, on the compromise

application having been filed by the parties, appears to have acted

only on the undertaking of the defendant to vacate the premises by

31.8.2005. Perhaps for this reason only the issue framed also took

within its ambit, the entitlement also of the plaintiff to the mesne

profits, if any.

6. There being no adjudication by this court of the defendant

being in unauthorized possession of the premises, notwithstanding

the possession of the premises having been delivered by the

defendant to the plaintiffs on 31.8.2005 as undertaken by the

defendant, this court, before determining the quantum of mesne

profits will have to determine the question of the entitlement of the

plaintiff to the same. Only if the defendant is found to be in

unauthorized possession of the premises, would the question of

determination of quantum of mesne profits arise.

7. It appears that the parties, after recording of the undertaking

with respect to the possession, were under misconception that only

the rate of mesne profits was in issue. For this reason, no evidence

was led as to the entitlement to mesne profits. Upon the said

question being put to the counsel for the plaintiffs during the hearing

on 28.7.2008, the matter was adjourned on request. However, the

counsel for the plaintiff on the adjourned date argued on the basis of

the material on record.

8. As aforesaid, this suit was filed for the relief of possession on

the basis of the term of the tenancy under a registered lease deed

having expired by efflux of time. However, the original lease deed

was neither filed nor any steps taken by the plaintiff for having the

same filed. A certified copy of the registered lease deed though on

record, has not been proved or referred to in the evidence of the

parties. Thus, the same cannot be referred to or read in evidence.

No admission/denial of the said document also took place. However,

I find that the plaintiffs have in the plaint in paras 5 & 6 stated that

the lease deed was for a period of six years w.e.f. 1.4.1995 and the

defendant had vide clause-2D thereof agreed to deliver the premises

at the end or on the earlier determination of the tenancy. The

written statement in corresponding paras 5 & 6 does not deny the

contents of paras 5 & 6 of the plaint. Thus, it stands admitted by the

defendant that the lease between the parties was from 1.4.1995 for a

period of six years. Even though, there is no averment in the plaint

that the lease deed was registered and in the absence of registration

of lease, even if providing for a terms of six years, would be a month

to month tenancy, to be determined by a notice to quit and not

expiring by efflux of time, and even though none of the witnesses

have admitted the factum of registration, but in the face of the

certified copy of lease deed dated 9.12.1996 being on record, even

though not proved, I am inclined to admit the case of the plaintiff of

expiry of the term of lease by efflux of time.

9. However, that would still not mean that the plaintiffs are

entitled to mesne profits. The defendant has in its written statement

taken another defence to the entitlement of the plaintiffs to any relief

from the court. In this regard, it may be stated that the suit was

instituted by seven plaintiffs of which the plaintiff no.1 Mr. A.R.

Chadha & Company in the plaint is described as a partnership firm,

plaintiff no.2 is Sh. C.M. Chadha as trustee of M/s. Atma Ram Trust,

Plaintiff no.3 is the same Sh. C.M. Chadha in his personal individual

capacity and the plaintiffs no.4 to 7 are the widow and daughters of

Late Shri Atma Ram Chadha. During the pendency of the suit, IA

no.10853/2007 was filed by the plaintiffs to bring on record the

factum of demise of the plaintiff no.4 (widow of Late Shri Atma Ram

Chadha) and further stating the right to sue survived to the

remaining plaintiffs. This court vide order dated 20.11.2007 made

an entry in the memo of parties deleting the plaintiff no.4 from the

array of the plaintiffs.

10. It is stated in para 2 of the plaint that Shri C.M. Chadha is also

the trustee of M/s. Atma Ram Trust, in whose name property no. C-

14 to C-16, with respect to portion of which the suit was filed,

vested. It was further stated that besides Shri C.M. Chadha, Late

Shri Atma Ram Chadha was also the trustee of the said M/s. Atma

Ram Trust. It was further stated that Shri C.M. Chadha is

authorized to institute the suit on behalf of M/s. Atma Ram Trust and

is entitled and competent to sign and verify the plaint. It was further

pleaded that plaintiffs no.3 to 7 are the legal heirs of Late Shri Atma

Ram Chadha. In para 3 of the plaint, it was pleaded that the

plaintiffs no.2 to 7 are the landlords and owners of the property

no.C-14 to C-16, Connaught Place, New Delhi. In para 5 of the

plaint, it is stated that the lease deed dated 9.12.1996, was executed

by Shri Chander Mohan Chadha for himself and in his capacity as

trustee for and on behalf of M/s. Atma Ram Trust.

11. The defendant in its written statement took a plea that the suit

had not been instituted by a competent person on behalf of M/s.

Atma Ram Trust stated to be the owner of the property and denied

that Shri Chander Mohan Chadha was authorized to sign and verify

the plaint. It was further pleaded that in a suit on behalf of the trust,

all the trustees are liable to be made party to the suit and failing

which the suit is liable to be dismissed.

12. No replication was filed by the plaintiffs. The plaintiffs have

also failed to lead any evidence whatsoever on the aforesaid aspect

of the matter. As aforesaid, even the lease deed has not been

proved. However, in the pleadings, it is admitted that the lease deed

was between Shri Chander Mohan Chadha acting for himself and as

trustee of M/s. Atma Ram Trust on the one hand and the defendant

on the other. Thus, as per the lease deed only Shri Chander Mohan

Chadha in his personal individual capacity and the said M/s. Atma

Ram Trust are the landlords. The plaintiff no.1 which is stated to be

a registered partnership firm and the plaintiffs no.4 to 7 who are the

legal heirs of Shri Atma Ram Chadha have no locus whatsoever in

the present suit which as aforesaid is a suit between the landlord

and tenant only and has been valued as such. Even though, it is

pleaded that besides Shri Chander Mohan Chadha, Shri Atma Ram

Chadha was the other trustee of M/s. Atma Ram Trust, but even if

that be so, on his demise, his legal representatives would not become

the landlord. In any case, there is no explanation in this respect

either in the plaint or in the evidence.

13. The objection of the defendant in the written statement of the

suit having not been instituted by M/s. Atma Ram Trust, who

according to the plaint also is the landlord, goes to the root of the

matter. It is now no longer res integra that a trust is not a legal

entity and is not entitled to sue in its own name. Trust is

compendium name of all the trustees and can act only through all

the trustees and not otherwise. It has nowhere been pleaded or

proved that Shri Chander Mohan Chadha is the only trustee of M/s.

Atma Ram Trust, which is the landlord. The suit, thus instituted by

Shri Chander Mohan Chadha only as a trustee of M/s. Atma Ram

Trust has not been properly instituted and the plaintiffs would not be

entitled to any relief on this ground alone. The Division Bench of this

court in Shri Duli Chand v Mahabir Pershad Tirlok Chand

Charitable Trust 25 (1984) DLT 70 (DB) has held that all the

trustees should join in institution of the suit.

14. Though, no specific issue has been framed on the aforesaid

plea in the written statement, but once an omnibus issue has been

framed by this court on the entitlement of the plaintiffs to mesne

profits, the issue has to be decided with reference to the pleadings of

the parties and in which, as aforesaid, defendant has set up a plea of

the plaintiffs being not entitled to any reliefs for the reason of the

suit having not been properly instituted. The plaintiffs have not

taken any care to deal with the said plea or to satisfy the court of the

due institution.

15. I must confess that the thought did occur to me that

substantial justice should be done between the parties. However, it

is a suit and not a writ petition. The plaintiffs have shown disregard

to prove their case in accordance with law. As aforesaid, even the

lease deed on the basis of which the suit has been filed, has not been

proved. Even after the said facts were brought to the notice at the

time of commencement of hearing, no effort was made to even apply

for making up the deficiency. I am thus constrained and feel bound

by law to hold that the plaintiffs have failed to prove their case.

16. The conclusion thus is, though the defendant was in

unauthorized use and occupation of the premises w.e.f. 1.4.2001 till

31.8.2005 but the suit has not been properly instituted.

17. As far as the period and rate of mesne profits is concerned,

though mesne profits have been claimed w.e.f. 1.4.2001, but the suit

was instituted on 30.5.2001. The plaintiffs ought to have in

accordance with law paid court fees on the mesne profits accrued till

the institution of the suit. However, no such court fees was paid and

only an inquiry into the mesne profits w.e.f. 1.4.2001 was sought.

The plaintiffs would thus have been entitled to mesne profits w.e.f.

1.6.2001 to 31.8.2005 only, had the suit been properly instituted.

18. With respect to the rate of the mesne profits, the witness of the

plaintiffs has deposed that he is also the Managing Director of Atma

Ram Builders Pvt. Ltd., and a photocopy of the lease deed executed

by the said Atma Ram Builders Pvt. Ltd., was annexed to the

affidavit. When the said witness stepped into the witness box, he

stated that had brought a certified copy of the lease deed of which

photocopy had been filed along with affidavit. Ex. PW1/1 has been

put on the said certified copy.

19. Again the said document also has not been proved in

accordance with law. Neither the original of the document is

brought before the court nor has the witness identified the

signatures on the certified copies. Without the execution of the

documents having been proved, no reliance whatsoever can be

placed thereon. However, so as to return finding of all aspects, even

if the said document is to be read in evidence, the same is with

respect to the showroom in the inner circle of Connaught Place

comprising of ground floor, a mezzanine having a total area of 4200

square feet. The same was let out w.e.f. 20.8.2003 @ Rs.5,50,000/-

per month i.e. Rs. 130.95 paisa per square feet per month. The

tenant therein had also deposited advance rent of Rs.33,00,000/- and

interest free security deposit of Rs.42,00,000/-. On the basis of the

said document, it is urged that the claim of mesne profits @ Rs.80/-

per square feet per month is reasonable and justified.

20. Per Contra, the premises subject matter of the present suit are

the mezzanine floor only and which has one entrance through the

staircase opening in the inner circle and the main entrance though a

staircase opening on the Radial Road leading to Minto Road. There

is a drastic difference in the letting values of showrooms in the inner

circle and a mezzanine floor, which is essentially meant for office

purposes only. Thus, in my opinion, Ex. PW1/1 does not give any

evidence of the benefit which the defendant bank availed by

unauthorized use of the premises from 1.6.2001 to 31.8.2005.

21. The witness of the plaintiff has referred to another document

which has been filed in original before the court and on which Ex.

PW1/2 has been put. However, the position as to mode of proof of

the said document is the same as the earlier. Photocopy of the

document was annexed to the affidavit and at the time of tendering

of the affidavit into evidence, original was filed before the court.

However, execution thereof has not been proved. I may state that

the counsel for the defendant had raised objection to the admission

of the document into evidence on the ground of mode of proof. The

recording of the evidence being before the Joint Registrar, the

objection has to be decided now and I find the objection to be valid

and the said document to have been not proved in accordance with

law. However, even if the said document is to be read, the same is

again with respect to ground floor and mezzanine floor and rights in

terrace again of a premises in the inner circle. However, the said

document shows that though the rent of the said premises was

reduced from Rs.7,50,000/- per month fixed on 1.8.1999 to

Rs.5,35,714/- w.e.f. 1.11.2001. The said document of the plaintiffs

shows that in or about the middle year of 2004, there was a fall in

the rent in the Connaught Place area.

22. The third document relied upon by the plaintiffs is relating to a

Bata Showroom. Ex. PW1/3 and Ex. PW1/4 were put on the same,

but again I find the document not to have been proved in accordance

with law. Be that as it may, the same shows the rent of a mezzanine

within the showroom to be Rs.100/- per square feet. However, a

mezzanine within a showroom and which can be accessed from the

showroom and forms part of showroom has an entirely different

letting value than a mezzanine meant for office purposes only.

23. Thus, I find that the documents of the plaintiffs even if to be

read in evidence do not throw any light on rate of mesne profits of

the said premises.

24. The witness of the defendant has purported to prove the lease

of another premises on the first floor in the Connaught Place area in

the tenancy of the defendant. The lease has also not been proved in

accordance with law and only a photocopy has been filed before the

court. Further, the said document cannot give any estimate of the

prevalent rate, the same being in the nature of an illegal subletting.

DW2 has deposed of having taken lease of ground mezzanine and

second floor in Scindia House, from M/s. Atma Ram Properties Ltd.,

w.e.f. 1.11.2003 @ Rs.25/- per square feet for the ground floor @

Rs.15/- per square feet on the mezzanine floor. Again, though the

document has not been proved in accordance with law, but the same

cannot be a bench mark of the prevalent rent owing to it being in the

nature of sub tenancy.

25. There has been a tendency to take judicial notice of the

general increase of the rent. However, Division Bench of this court

in National Radio & Electronics Co Ltd v Motion Pictures

Association 122 (2005) DLT 629 (DB) after examining the various

judgments in which the judicial notice had been purportedly taken

found that the said judgments were always on admissions and held

that the court cannot take judicial notice of what rent the premises

were capable for fetching and in the absence of any evidence being

led by the plaintiffs on whom the onus rests.

26. I find that the plaintiffs in the present case have not led any

evidence of any parameteria premises from which it can be gathered

as to what was the rent between the 1.6.2001 to 31.8.2005.

27. In view of my findings above, I hold that the suit has not been

properly instituted and the plaintiffs have also failed to prove the

rate of mesne profits. The suit is as such dismissed. However, in the

facts of the case, the parties are left to bear their own costs. Decree

sheet be drawn up.

RAJIV SAHAI ENDLAW (JUDGE) October 23, 2008 k