Shri Shashi Chander Tandon & Ors. vs United India Insurance Co. Ltd.
2011 Latest Caselaw 3581 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.246/2011
%                                                         July 27th, 2011

SHRI SHASHI CHANDER TANDON & ORS.                         ...... Appellants

                          Through:    Mr. N.K.Jain, Advocate


                          VERSUS

UNITED INDIA INSURANCE CO. LTD.                   ...... Respondent
                    Through:    Mr. P.K.Seth, Advocate.

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 this Regular First Appeal under Section

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

and decree dated 21.1.2011 which has dismissed the suit of the

plaintiffs/appellants/landlords      for     possession        against        the

respondent/tenant/defendant with respect to the property admeasuring

1600 Sq. feet bearing No.4, Community Centre, Naraina Industrial Area,

Phase-1, New Delhi.


RFA 246/2011.                                                          Page 1 of 5
 2.          The admitted facts are that there is a relationship of landlord

and tenant between the parties as the suit property was let out to the

respondent by the predecessor-in-interest of the appellants vide a lease

agreement way back in the year 1987.       A fresh lease agreement was

entered into on 3.8.2006 for three years at a monthly rent of Rs.24,050/-

per month. The lease deed had a renewal clause for a further period of

three years subject to 15% increase in rent. The respondent did exercise

an option of renewal, however, that option for renewal was exercised

after the expiry of the period of three years. The trial Court dismissed

the suit on the ground that since the respondent has validly exercised

the option of renewal, the respondent cannot be said to be a trespasser

inasmuch as the appellants had no rights to terminate the tenancy by the

legal notice dated 6.11.2008.


3.          In my opinion, the judgment of the Court below is clearly

illegal and requires to be set aside.     What is required in a suit for

possession of such a nature is the existence of relationship of landlord

and tenant, the fact that tenancy is a monthly tenancy and the fact that

such monthly tenancy has been terminated by means of a notice under

Section 106 of the Transfer of Property Act, 1882 and there is no

registered lease deed for the period during which the notice of

termination of tenancy has been sent. The admitted facts in the present

RFA 246/2011.                                                     Page 2 of 5
 case are that there is a relationship of landlord and tenant between the

parties. The rate of rent which was last paid was Rs.24,050/- per month,

and being more than Rs.3,500/- per month the premises have no

protection of the Delhi Rent Control Act, 1958. A notice dated 6.11.2008

terminating the tenancy was served upon the respondent terminating the

tenancy w.e.f. 30.11.2008.


            Merely because an option of renewal is exercised cannot

mean that there is automatically a registered lease deed for the

extended period and a properly stamped lease deed has to be executed

and registered for the renewal period.    As per Sections 17(1)(b) and

17(1)(d) of the Registration Act, 1908 and Section 107 of Transfer of

Property Act, 1882, any lease for a period of more than one year has to

be only by means of a registered instrument. If there is no registered

instrument then Section 49 of the Registration Act bars the Court from

looking at the document meaning thereby no legal relationship for the

fixed period of lease is created on the basis of an unregistered document

which was required by law to be registered.      The tenancy therefore

between the parties continued to be a monthly tenancy as there was no

registered lease deed for a fresh period of three years, and the

appellants/landlords were therefore entitled to terminate the tenancy by

sending a legal notice under Section 106 of Transfer of Property Act. I

RFA 246/2011.                                                   Page 3 of 5
 therefore hold that the suit by which possession was claimed of the

tenanted premises is entitled to be decreed.


4.          The next issue which arises is that what should be the rate of

mesne profits which should be awarded to the appellants/landlords

against the respondent/tenant after the termination of the tenancy.

There is no dispute that the tenancy stood terminated w.e.f. 30.11.2008.

Mesne profits have therefore be calculated from 1.12.2008.              The

appellants/landlords led evidence in the trial Court of witness PW-2 one

Sh. Jitender Manchanda and who filed and proved on record the lease

deed Ex.PW2/1 dated 21.7.2009 for the premises bearing no. B-191,

Ground Floor, Block B, Naraina Industrial Area-I, New Delhi.   This deed is

Ex.PW2/1 is therefore for the same area where the suit premises are

situated. The lease deed Ex.PW2/1 is for rent of Rs.60,000/- per month

for an area of 405 Sq. feet i.e. approximately Rs.150/- per sq. feet. It is

not clear from lease deed Ex.PW2/1 as to whether the area in this lease

deed is carpet area or super area and therefore I will construe the lease

deed against the appellants by holding that the area which is mentioned

is carpet area i.e. the per square feet rent will be a higher figure as

compared to the per square feet rent of the suit premises which is 1600

sq. feet of super area. Therefore, with respect to the suit premises, the

rate of rent would be approximately in the region of about Rs.127/- per

RFA 246/2011.                                                     Page 4 of 5
 sq. feet. Further, keeping into account the fact that rate of rent has to be

calculated from 1.12.2008 and the lease deed is of July, 2009 i.e.

approximately eight months later than the date of termination of

tenancy, therefore taking a reasonable increase in rent, then, one can

safely reach the conclusion that the rental would be around Rs.105/- to

Rs.110/- per sq. feet as on 1.12.2008.       Taking into account further

imponderables qua the location of different properties the rate of rent

therefore can be taken at Rs.100/- per sq. feet.       If we take rent of

Rs.100/- per sq. feet as proved by the appellants/landlords then the

appellants will be entitled to mesne profits of Rs.1,60,000/- per month,

however, the appellants have only claimed a sum of Rs.80,000/- per

month. Therefore, I restrict the Award of mesne profits to Rs.80,000/- per

month from 1.12.2008 till the date the respondent hands over the

possession of the suit premises to the appellants.


5.          Accordingly, the appeal is allowed. The suit of the appellants

for possession and mesne profits is decreed. Mesne profits are granted

to the extent as stated above. Parties are left to bear their own costs.

Decree sheet be prepared. Trial Court record be sent back.




JULY 27, 2011                                    VALMIKI J. MEHTA, J.

ib