National Organic Chemical ... vs Arvind Aggarwal & Another
2011 Latest Caselaw 2419 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of judgment: 05.05.2011

+                   R.S.A.No.317/2007 & CM No. 17429/2007

NATIONAL ORGANIC CHEMICAL INDUSTRIES LTD.
                                         ...........Appellant
                  Through: Mr. Rajinder Dhawan and Mr.
                           T. Akhtar, Advocates.
             Versus

ARVIND AGGARWAL & ANOTHER
                                                ..........Respondents

Through: None.

                         AND

+                   R.S.A.No.319/2007 & CM No. 17520/2007

NATIONAL ORGANIC CHEMICAL INDUSTRIES LTD.

...........Appellant Through: Mr. Rajinder Dhawan and Mr. T. Akhtar, Advocates.

Versus

CHANDAN AGGARWAL ..........Respondent Through: None.

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 These appeals have impugned the judgment and decree

dated 21.9.2007 which has reversed the finding of the trial judge

dated 11.7.2005. Two suits had been filed bearing suit No.

395/2002 & 396/2002 qua suit property bearing No.601, 6 th floor,

Ashoka Estate, 24 Barakhamba Road, New Delhi and 614, 6th

Floor, Ashoka Estate, 24 Barakhamba Road, New Delhi. They had

been consolidated and vide judgment and decree dated 11.7.2005

the suits filed by the plaintiffs Arvind Aggarwal and Smt. Chandan

Aggarwal seeking recovery and possession of the suit property

had been dismissed. The impugned judgment had reversed this

finding. The suits of the plaintiffs stood decreed.

2 Plaintiff no.1 is the owner/landlord of the aforenoted suit

property. It had been leased out to defendant no.1 vide

agreement dated 02.01.1984 w.e.f. 01.01.1984; rent was

Rs.5103/- per month & Rs.7,479/- respectively for the 2 suit

properties which was increased from time to time. Legal notice

dated 06.5.1995 was sent to the defendant terminating his

tenancy w.e.f. 31.5.1995; defendant paid no heed to the same.

Last paid rent was Rs.7348.80 & Rs. 10,770/- per month.

Defendant had not paid rent w.e.f. 01.3.1995 to 31.5.1995; sum of

Rs.22,046.40 & Rs.32,310/- respectively was due due the

plaintiffs. In spite of legal notice defendant had failed to vacate

the suit property. Present suit was accordingly filed for

possession as also damages for unauthorized use and occupation

with a prayer that an enquiry under Order 20 Rule 12 of the Code

of Civil Procedure (hereinafter referred to as „the Code‟) be

carried out to determine the rate of damages to be awarded in

favour of the plaintiff.

3 Written statement was filed. It was stated that on 27.6.1995

the entire building namely Ashoka Estate in which the suit

property is located was sealed by the Delhi Fire Authority after a

major fire broke out in the building. On 01.7.1995 the defendant

had asked the plaintiff to take possession of the suit property and

set off the amount of Rs.4,20,000/- which had been deposited by

the defendant with the plaintiff as security amount. Plaintiff paid

no heed. Reminders dated 18.9.1995 and 4.12.1995 as also a

legal notice dated 30.4.1996 sent by the defendant calling upon

the plaintiff to take possession of the suit property were also not

replied. Suit of the plaintiff is liable to be dismissed.

4 On the pleadings of the parties, the following eight issues

were framed:

1.Whether the suit is not maintainable in law? OPD

2.Whether the suit is bad for misjoinder of the parties? OPD

3.Whether the suit does not disclose the cause of action? OPD

4.Whether this court has no pecuniary jurisdiction to try this suit? OPD

5.Whether the plaintiff has suppressed the material facts, if so its effect? OPD

6.Whether the tenancy of defendant has been validly terminated vide notice dated 6.5.1995. If so, its effect?

7.Whether the plaintiff is entitled for the relief of damages and occupation as claimed? OPP

8.Relief.

5 Oral and documentary evidence was led. Trial judge while

dealing with issue no.6 had noted that the possession of the suit

property has since been delivered by the defendant to the plaintiff

and the security amount has also since been returned. Only

question was the determination of mesne profits which was due

and payable if any by the defendant. This was dealt with while

disposing of issue no.7. Court had examined the oral and

documentary evidence as also communications exchanged

between the parties. Admittedly suit property had been delivered

to the plaintiff on 06.1.1997. Court was of the view that the

plaintiff was not entitled to any damages.

6 In appeal this finding was modified. The appeallate court

was of the view that the tenancy had been terminated w.e.f.

31.5.1995 on which date the defendant had become an

unauthorized occupant; fire had taken place on 27.6.1995

whereupon the building was sealed. On 07.5.1996 the building

was desealed; suit had been filed on 22.9.1995. Court was of the

view that the intent of the defendant to return the premises was

not clear. Damages had been awarded @ 80/- per square feet per

month w.e.f. 01.6.1995 to 06.1.1997 i.e. the date of the delivery of

the possession of the suit property.

7 This is a second appeal. It has been admitted and on

07.11.2008 the following substantial question of law was

formulated:

"Whether the appellant is liable to pay the mesne profits for the period, when the building, of which the suit premises formed a part, remained sealed due to fire in the building, after the termination of the tenancy?

8 On behalf of the appellant, it has been urged that the

judgment of the court below is illegal as the property in dispute

had been sealed on 07.06.1995; it was desealed only on

07.05.1996; PW-1 in his cross-examination has also admitted that

in this period market rent could have been obtained for the

demised premises. This is evident from the fact that the property

remained sealed in this intervening period. It is pointed out that

mesne profit granted @ Rs.80/- per square feet is clearly a

perversity; the property was of no in use to the defendant; they

had in fact shifted their office to another organization; defendant

had been repeatedly writing to the plaintiff to take back

possession but the plaintiff had not taken the possession for which

the defendant cannot be burdened with any liability.

9       None has appeared for the respondents.

10      Admittedly the suit property has been vacated under the

orders of the court on 06.01.1997. It is also not in dispute that

legal notice dated 06.05.1995 served upon the defendant

terminating his tenancy w.e.f. 31.5.1995. Admittedly the

defendant had become unauthorized occupant of the suit property

w.e.f. 01.06.1995. The date of handing over the possession of the

suit property is also an admitted fact i.e. 06.01.1999. Damages

had rightly been calculated for his intervening period i.e. w.e.f.

01.06.1995 to 06.01.1997. The contention of learned counsel for

the appellant is that even presuming that the plaintiff was in

constructive possession of the suit property (although not in

actual physical possession) even then he could not be made liable

for the period when the property was sealed as admittedly during

this intervening period, property could not have fetched any

market rent.

11 „Mesne profit‟ had been defined under Section 2 (12) of the

Code of Civil Procedure. This finding reads as under:-

"‟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 profits, but shall not include profits due to improvements made by the person in wrongful possession."

12 This definition encompasses 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 profits. This is the test on which the grant of

mesne profits, if any, has to be determined. Ex. PW-1/125 was the

lease deed which has been filed by the plaintiff showing that the

same suit property had been let out w.e.f. 01.01.1997 @ Rs.80/-

per square feet. This has been taken into account by the court to

record a finding that Rs.80/- per square feet would be the market

rent of the suit property as and this was the best evidence

available; moreover there was no rebuttal evidence on this score.

Rs.80/- per square feet in January, 1997 was thus correctly

recorded as market rent of the suit property. This amount was

payable by the defendant to the plaintiff from 07.05.1996 to

06.01.1997; 07.05.1996 is the date when the property had been

desealed and was available for user; 06.01.1997 is the date when

the physical possession of the suit property had been handed over

by the defendant; in this period property was admittedly available

for user by the defendant. The question is whether the defendant

is liable to pay mesne profits even for the period when the

property remained sealed w.e.f. 07.06.1995 to 07.05.1996.

Admittedly and as per record the plaintiff had received only one

letter dated 30.04.1996 from the defendant which was for the first

time informed him that the defendant was willing to vacate the

suit property. There is no other documentary evidence to show

that prior to this date, the defendant was willing to vacate the suit

property; this contention that he had repeatedly asked the

plaintiff to take the property is incorrect. It is thus clear that

during this entire period even when the property was sealed, the

possession of the same was with the defendant. The defendant till

30.04.1996 had not made any request to release this property to

the plaintiff. Defendant is liable for this intervening period also as

admittedly the constructive possession of the suit property was

with him. DW-1 in his cross-examination had in fact admitted that

although there was a fire in the building but there was no fire in

the disputed plot; there was also no term in the lease deed dated

02.01.1984 or any other understanding between the parties

written or oral to take care of such a situation. Defendant was

rightly held to be liable to pay damages at the market rate. There

is no perversity in this finding.

13 Substantial question of law is answered accordingly in

favour of the respondent and against the appellant. There is no

merit in this appeal. Appeal as also pending application is

dismissed.

INDERMEET KAUR, J.

MAY 05, 2011 A