Delhi High Court
Lt.Col.Jaspal Singh vs National Thermal Power ... on 21 March, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 21.03.2011
+ RSA No.68/2006
LT.COL.JASPAL SINGH ...........Appellant
Through: Mr.Amit S.Chadha, Sr.Advocate
with Mr.Naveen Sharma,
Advocate.
Versus
NATIONAL THERMAL POWER CORPORATION LTD.
..........Respondent.
Through: Mr.Vishwa Bhushan Arya,
Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
5.11.2005 which had endorsed the findings of the trial judge dated
30.4.1998. Trial judge vide the judgment and decree dated
30.4.1998 had granted damages/mesne profit to the plaintiff qua
the suit property i.e. premises bearing No.101-102, first floor, in
the multi storey building No.62-63, Nehru Place, New Delhi for the
period 10.8.1995 to 06.4.1998 @ `40/- per sq. ft. along with
interest @ 24% per annum. The impugned judgment had modified
this finding. The damages/mesne profits had been granted @ `10/-
per sq.ft. This judgment is the subject matter of the present
appeal. It is not in dispute that the suit premises has since been
handed back by the defendant to the plaintiff. The period for
which mesne profits has been claimed is also not in dispute i.e.
10.8.1005 to 06.4.1998.
2. Although there is no formal order of admission, the following
substantial question of law was formulated on 24.4.2008:
"Whether the learned Appellate Court was justified in reversing
the findings of the learned Trial Judge by giving precedents to
lease deeds pertaining to renewal of leases in the same building
viz-a-viz lease deeds of flats let out for the first time in adjoining
buildings."
3. The appellant was the plaintiff before the trial court. Apart
from the testimony of PW-1 and PW-2 he had proved on record a
registered lease deed Ex.PW-2/1 dated 01.11.1995 wherein
adjoining premises on the third floor had been leased out at `40/-
per sq. ft. per month. Relevant would it be to examine the
evidence led by the plaintiff. PW-1 had on oath deposed that the
lease of the defendant had been terminated vide legal notice
Ex.PW-1/7 terminating the tenancy of the defendant w.e.f.
09.8.1995. He had claimed damages at the market rate which as
per his version in 1995 would be `60/- per sq. ft. per month. PW-2
had proved a registered lease deed dated 01.11.1995 executed
between one Anil Kumar Dhall and M/s Modi Rubber Ltd. wherein
flat No.302 on the third floor, Hemkunt Tower, 98 Nehru Place has
been leased out at a rent of `17,600/- per month which admittedly
is approximately `40/- per sq. ft. per month.
4. Per contra, the defendant had also produced two witnesses in
defence. He had deposed that the rate in 1995 is `7/- per sq.ft. per
month approximately and lease qua the adjoining properties had
been executed for `7.17 per sq.ft. per month and `9.95 per sq. ft.
per month. He had proved four documents Mark G to H which
were lease of adjoining places taken on leases by the NTPC which
are ranging from December 1995 to August 1996; the rate of rent
as per these documents is between `7/- to `9/- per sq. ft. per
month. These are supplementary leases.
5. The vehement contention of the appellant is that what has to
be paid for unauthorized use and occupation is mesne profits and
damages which has to be assessed as per the market rate of rent. It
is submitted that both the concurrent findings of fact given by the
courts below have given different quantums of mesne profits; yet
both have agreed that mesne profits after termination of tenancy
have to be awarded as per the market rate of rent.
6. This proposition is not in dispute and in fact is borne out
from the record of both the courts below. Trial judge had granted
`40/- per sq. ft. per month holding it to be the market rate of rent
prevailing in the year 1995. The impugned judgment had reduced
the figure from `40/ to `10/- but had held it to be the market rate.
Section 2(12) of the Code of Civil Procedure defines mesne
profits as follows:
"Mesne profits" of property means those profits which the person
in wrongful possession of such property actually received or might
with ordinary diligence have received therefrom, together with
interest on such profit, but shall not include profits due to
improvements made by the person in wrongful possession;"
Mesne profits is the amounts which the person in wrongful
possession is liable to pay i.e. the amount the person in wrongful
possession has actually received or with due diligence would have
received; this amount is coupled with the quotient of interest.
7. The trial judge while awarding mesne profits at `40/- per sq.
ft. per month had adverted to the oral and documentary evidence
of the plaintiff but had omitted to discuss the defence of the
defendant. This was the main ground of appeal before the first
appellate court. The appellate court on the other hand has
completely overlooked the documents of the plaintiff. Plaintiff
had produced a registered lease deed which is admittedly of a
adjoining property leased out in the adjacent area i.e. 98, Nehru
Place. This lease was entered into on 01.11.1995 which was a first
time lease between the parties. The negotiations between the
parties which had finally fructified into the lease deed was based
on prevailing market rent which was `40/-per sq. ft. per month. On
the other hand, the documents relied upon by the defendant which
are Mark G to J are unregistered documents; that is why they had
been marked. Executant of those documents had not been come
into witness box. They were supplementary lease deeds.
Admittedly, in all these cases (i.e. of Mark G to Mark J) they were
not the cases of fresh leases; they were continuations of earlier
leases which had been effected between the parties in 1978. This
is an admitted position.
8. In the present case, the plaintiff had validly terminated the
tenancy of the defendant vide Ex.PW-1/7 w.e.f. 10.8.1995. From
the stand point of the plaintiff a new and fresh lease on prevailing
market rate had to be executed between the parties if the parties
had agreed for a negotiation. Prevailing market rate in terms of
Ex.PW-1/2 was `40/-per sq. ft. per month. This has been proved
and established. Mark G to Mark J being unregistered
supplementary lease deeds had not been proved; they were
admittedly continuation of earlier lease agreements; considerations
prevailing for a continuation and an extension of a lease are
distinct and different from considerations to be weighed at the
time of entering a first time agreement. A new lease would be
entered into as per prevailing market rent whereas a continuation
of an earlier lease which is by agreement may not necessarily be on
the current market rate of rent. In these circumstances reliance
in the impugned judgment upon Mark G to Mark J was uncalled for.
9. Counsel for the appellant has also placed reliance upon the
MCD Schedule (down loaded from the internet) of rates of rent
which shows that prevailing rate in the year 1995 for the first floor
premises at Nehru Place would be `50/- per sq. ft. per month; for
1996 it would be `65/- per sq. ft. per month.
10. In 2002 IV AD (Delhi) 733 Anant Raj Agencies Properties Vs.
State Bank of Patiala, where the rate of rent was `21,065/- per
month mesne profits were claimed for an amount more than three
times of the said amount i.e. `76,025/- per month i.e `35/- per sq.ft.
per month. The rate awarded by the Court, taking judicial notice
of the increase in rents was `35/-per sq.ft. per month for a part
period and `50/-per sq.ft. per month thereafter. In 120(2005)DLT
407 State Bank of Bikaner and Jaipuar Vs. I.S.Ratta & Ors.
damages/mesne profits had been awarded at the prevailing market
rate of rent which claimed at `81/- per sq.ft. per month had been
granted for different periods ranging from `98.30 per sq. ft. per
month up to `200/- per sq. ft. per month. This was keeping in view
the escalated market rent which was ever-increasing.
11. Learned counsel for the appellant has also placed reliance
upon (2001) 7 SCC 494 Leela Soni & Ors. Vs. Rajesh Goyal & Ors.
to substantiate his submission that findings of fact can be
interfered with if there is ample power of the Court to do so under
Section 103 of the Code. There is no dispute to this proposition.
Findings of fact if perverse do raise a substantial question of law.
12. In view of the aforenoted discussion the appeal is allowed.
Mesne profits is granted @ `40/- per sq. ft. w.e.f 10.8.1995 to
06.4.1998 along with interest @ 12% per annum. Appeal is
disposed of.
INDERMEET KAUR, J.
MARCH 21, 2011
nandan
