Punjab & Sind Bank vs Shri Gurmukh Singh (Since ...
2011 Latest Caselaw 136 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                      RFA No.322/1999
 %                                                11th January, 2011


PUNJAB & SIND BANK                             ...... Appellant
                                   Through:     Mr. Puneet Verma,
                                               Advocate.
                       VERSUS


SHRI GURMUKH SINGH (SINCE DECEASED) & OTHERS
                                      ...... Respondents

Through: Mr. P.S. Bindra, Advocate for the respondent No.1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the present first appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment and decree dated 27.2.1999 whereby the suit of

the respondent No.1/co-owner has been decreed for arrears of rent

being the difference between Rs.12,500/- (rate at which rent was paid)

and Rs.14,000/- (the rate at which rent was actually due) from

1.6.1982 to 30.11.1987, the latter date being the date when the

appellant/tenant vacated the suit premises.

2. The facts of the case are that there were disputes and

difference between the co-owners of the property bearing No.126,

Sundar Nagar, New Delhi, being one Smt. Laxmi Devi (who is now

represented by the respondent No.2 Smt. Prabjhot Singh Kochhar) and

Gurmukh Singh (the predecessor-in-interest of respondents 1(a) and

1(b)). During the pendency of a suit for partition in this Court between

the co-owners a receiver of the property was appointed and which

receiver let out the property originally in the year 1975 to the

appellant bank under Section 21 of the Delhi Rent Control Act, 1958

(hereinafter referred to as the 'said Act'). The appellant bank pursuant

to various extensions continued to stay in the property and the last of

such extensions which was granted under Section 21 of the said Act is

dated 17.11.1983. It is not disputed that this order which was passed

on 17.11.1983 under Section 21 of the said Act was a consent order to

which the appellant bank was a party. In fact, this order of granting of

lease under Section 21 was pursuant to the order dated 29.10.1982 of

this Court in the partition suit whereby the property was permitted to

be let out at Rs.14,000/- per month.

3. The respondent No.1 filed the subject suit for recovery

against the appellant/defendant/bank/tenant on account of the

appellant having paid rent only @ Rs.12,500/- per month instead of

Rs.14,000/- per month, the latter rate being the rate which was

directed to be paid by this Court in the order dated 29.10.1982 passed

in the partition suit. Admittedly it is pursuant to this order that the

appellant bank accepted the tenancy under Section 21 of the said Act

vide order dated 17.11.1983.

The respondent No.1 in the suit as per the plaint claimed

an amount of Rs.84,000/- on account of the balance rent not paid and

Rs.42,000/- on account of non-payment of three months of rent which

the appellant bank had deducted @ one month rent per year for three

years towards alleged maintenance/repairs. Respondent No.1/plaintiff

had claimed 50% of the total dues as stated above (and also detailed

in para 9 of the plaint) because the respondent No.1/plaintiff was a co-

owner to the extent of 50% of the tenanted premises.

The trial Court by the impugned judgment has decreed the

suit for a sum of Rs.57,143/- with interest @ 15 % per annum. The trial

Court granted the decree for three years rent prior to the filing of the

suit on 29.3.1989 holding that the claim for the period before the

period of three years was barred by time.

4. Before this Court, learned counsel for the appellant has

argued two main points. The first argument is that the learned trial

Court fell into an error in granting rent for three years prior to

29.3.1989 because the premises were in fact vacated in November,

1987. It was, therefore, urged that the arrears could only be granted

upto November, 1987 and not till the date of filing of the suit. The

second argument urged by the learned counsel for the appellant was

that in terms of the original lease deed of the year 1975 under Section

21 of the said Act, the appellant was entitled to deduct one month rent

each year towards repairs/maintenance of the tenanted premises and

therefore this was validly done by the appellant bank.

5. It has been argued for the respondent No.1/co-landlord

that the claim in the trial Court was not a claim for the rent for the

period of three years back from 29.3.1989. What was pleaded was that

the respondent No.1/landlord adjusted all amounts received @

Rs.12,500/- per month towards total due of Rs.14,000/- per month, the

agreed figure of rent and the amount claimed is the rent due for the

months for which rent will then remain due. As a result of the

adjustment, there were arrears due being approximately seven months

rent in November, 1987 when the appellant/tenant/bank vacated the

suit premises. As already stated the respondent No.1 claimed instead

of Rs.1500/- per month the sum calculated at Rs.750/- per month

because he was only a 50% owner of the suit premises.

When a sum of Rs.14,000/- is multiplied for a period of 66

months i.e. from 1.6.1982 to 30.11.1987 the dues towards the rent

would be Rs.9,24,000/-. The payment, however, was made @

Rs.12,500/- totaling to Rs.8,25,000/-. The difference of Rs.9,24,000/-

and Rs.8,25,000/- is Rs.99,000/- and which would be the arrears of rent

taking the rent @ Rs.14,000/- per month for approximately seven

months plus a sum of Rs.1,000/-.

6. The counsel for the respondent No.1 has argued before this

Court that leaving aside the technicalities and hair splitting it is really

50% of this amount of Rs.99,000/- and 50% of rent of three months

deducted which was to be decreed and should be so granted by this

Court as per Order 7 Rule 7 CPC.

7. In my opinion, the contentions as raised by the counsel for

the appellant are misconceived and liable to be rejected. The trial

Court has clearly fallen into an error no doubt in granting arrears of

last three years taken back from the date of filing of the suit on

29.3.1989 inasmuch as the premises were vacated in November,1987

however, that does not detract from the fact that a sum of Rs.99,000/-

was in fact due to the respondent no.1/landlord after making all

adjustments of payments made @ Rs. 12,500/- per month and the

actual dues calculated @ Rs.14,000/- per month. Thus, it is this

arrears of Rs.99,000/- which would become due and payable and which

is seven months arrears of monthly rent from 1.5.1987 till November

1987. The suit has been filed on 29.3.1989 i.e. within three years of

the arrears becoming due from 1.5.1987 and consequently, the suit for

arrears of rent being the difference of Rs. 14,000/- and Rs.12,500/- is

surely within limitation.

8. The second argument of the learned counsel for the

appellant that the appellant was entitled to deduct one month's rent

for three years is also misconceived. Simply because at the time of the

first letting in the year 1975 under Section 21 of the said Act, there

was such an entitlement does not automatically entitle subsequent

deducting because each grant of lease under Section 21 is a fresh

lease and has to be governed by the terms and conditions of that very

lease only. The order dated 17.11.1983 (Ex.PX) does not permit any

adjustment of one month's rent every year to the

appellant/tenant/bank. Thus, the appellant bank was not justified in

claiming deduction of one month's rent.

9. I may note that under Order 41 Rule 33 of the CPC read

with Order 7 Rule 7 CPC, this court sitting as an Appellate Court is

entitled to modify the decree in such a manner so that the correct

position in facts and law prevails and also the decree is in accord with

the equities and justice of the situation. The equity and justice of the

situation requires and demands that the appellant/bank/tenant who is

surely not a poor person should actually pay the rent which was due

and payable and it ought not to have forced the respondent

no.1/landlord to file litigation and which has continued now for over 21

years.

10. Accordingly the appeal is dismissed. I hold that the respondent

no.1/landlord will be entitled to 50% of the amount of rent payable for

the months from 1.5.1987 to 30.11.1987 plus 50% of three months'

rent plus a sum of Rs.500/- being 50% of the balance amount of

Rs.1000/-. The suit therefore will be decreed in favour of respondent

no.1 for Rs.49,000/- plus Rs.21,000/- plus Rs.500/-. The respondent

no.1 will also be entitled to pendente lite and future interest @ 15%

per annum simple, the rate granted by the trial court, on this amount

of Rs.70,500/- from 30.11.1987 till actual realization. A decree sheet

be accordingly prepared in favour of respondent no.1 and against the

appellant/defendant whereby the money decree is passed in favour of

respondent no.1 and against the appellant for a sum of Rs.70,500/-

with interest thereon at 15% per annum simple from 1.12.1987 till

actual realization/payment.

I may note that this is a commercial litigation. The

appellant bank surely does not fall in the category of a tenant who is

an underprivileged tenant. It is in fact a gigantic bank which has

forced the respondent no.1 into this unfair litigation from 1989 till date

viz a period of approximately 21 years. The Supreme Court in the

judgment of Salem Advocate Bar Association Vs. Union of India

(2005)6SCC 344 has held in para 37 that it is high time that actual

costs be awarded. I find that the present is a fit case where the

respondent no.1 should be entitled to costs of the present appeal. The

appeal is dismissed with costs quantified at Rs.15,000/- which shall be

paid within a period of two weeks from today. The appeal is

accordingly disposed of. Decree sheet be prepared. Trial court record

be sent back.

C.M. No.821/99 in RFA No.322/1999

Interim orders stand vacated.

Application stands disposed of.

JANUARY 11, 2011                               VALMIKI J. MEHTA, J.
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