Shri Radha Kishan Aggarwal & Ors. vs M/S Network Ltd. & Ors.
2011 Latest Caselaw 4515 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Pronounced on: 15.09.2011

+ CS(OS) 1221/1998

SHRI RADHA KISHAN AGGARWAL & ORS. ..... Plaintiffs
              Through: Mr. Om Prakash Gupta, Adv.

                        versus

M/s. NETWORK LTD. & ORS.             ..... Defendants
              Through: Mr. Naveen Sharma, Adv. for
              D-1.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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 Digest?

V.K. JAIN, J. (ORAL)

1. Initially this suit was filed for recovery of

Rs.42,58,768/- as also for recovery of possession of the

premises comprising basement, mezzanine floor , first floor

and second floor and mumty of property No.D-2, Local

Shopping Centre-II, Vasant Vihar, New Delhi. The

abovereferred property was let out by the plaintiffs and late

Shri Sitaram Agarwal to the defendant No.1 for a period of

nine years, vide registered lease deed dated 02.05.1989.

The lease commenced from 01.05.1989 and expired on

30.04.1998. The initial agreed rent stipulated in the lease

deed was Rs.60,000/- per month which was to be increased

by 15% after every three years. On account of the aforesaid

increase, the agreed rent was Rs.79,350/- per month when

the lease expired by afflux of time on 30.04.1998. In the

suit, the plaintiffs had claimed a sum of Rs.28,56,600/-

towards arrears of rent for the period from 01.05.1995 to

30.04.1998, Rs.7,52,168/- towards interest on arrears of

rent, calculated at the rate of 18% per month and

Rs.6,55,000/- towards damages for use and occupation for

the period from 01.05.1998 to 30.08.1998. The plaintiffs

have also claimed future damages for use and occupation at

the rate of Rs.6,50,000/- per month from the date of filing

of the suit till recovery of possession of the suit premises

from defendant No.1.

2. Admittedly, the possession of the suit premises has

been delivered to the landlords during pendency of this suit,

on 31.10.1998 and the arrears of rent for the period ending

30.04.1998 were deposited in CS(OS) No.735/1997 which

was a partition suit amongst the owners of the suit

premises. It is also an admitted case that the defendant

deposited rent/damages for use and occupation at the rate

of Rs.7,52,168/- for the period from 01.05.1998 to

31.10.1998 as well and the same has been withdrawn.

3. The following issues were framed on the pleadings

of the parties:-

(i) Whether the defendant is liable to the plaintiffs for any arrears of rent? If so, the extent thereof? OPP.

(ii) Whether the plaintiffs are entitled to any damages for the period post expiry of lease? If so, the extent thereof? OPP.

(iii) Whether the plaintiffs are entitled to any interest? If so, on what amount, for which period and at what rate? OPP

(iv) Relief.

4. Issue No.1:- Since the arrears of rent stand

paid, the plaintiffs are not entitled to recover any amount

from defendant No.1 towards arrears of rent. The issue is

decided accordingly.

5. Issue No.3:- Admittedly, there is no

agreement between the parties for payment of interest in

case the rent was not paid in time. No usage or custom

with respect to payment of interest has been pleaded or

proved. Admittedly, no notice of the nature envisaged in

Section 3 of Interest Act, 1978 was given by the plaintiffs to

defendant No.1 at any point of time. Hence, interest cannot

be awarded to the plaintiffs under the provisions of Interest

Act, 1978. I, therefore, hold that the plaintiffs are not

entitled to any interest on the arrears of rent.

6. Issue No.2:- Since the lease admittedly

expired by afflux of time on 30.04.1998, defendant No.1

became liable to pay damages for use and occupation for the

period from 01.05.1998 to 31.10.1998. Defendant No.1 is

liable to pay damages for use and occupation at the rate

which the suit premises, if let-out during the period from

01.05.1998 to 31.10.1998 would have fetched in the

market. No documentary evidence has been filed either by

the plaintiffs or by defendant No.1 to prove the rents

prevailing in the locality during the period from 01.05.1998

to 31.10.1998. No property dealer has been examined by

either party to prove the market rent during this period. In

para 9 of his affidavit by way of evidence, Mr.Surinder

Aggarwal, the attorney of the plaintiffs has stated as under:-

9. After the expiry of lease defendant No.1, M/s. Network Limited, did not vacate the suit premises on 1998 as a result of which plaintiffs instituted the present suit on 12.6.1998. The said defendant vacated the premises on 31.10.1998, as such the defendant become liable to pay damages for use and occupation of the suit premises @

Rs.6,50,000/- (Rupees Six lacs and fifty thousand only) per month. The said damages have been claimed in para 17 of the plaint in accordance with the prevailing rent of same and similar commercial premises in Vasant Vihar locality at that time. The suit premises are located in Vasant Vihar, New Delhi."

Thus, according to this witness prevailing of

similarly situated accommodation in Vasant Vihar at the

relevant time was about Rs.6,50,000/- per month. During

cross-examination of Mr.Surinder Aggarwal, no suggestion

was given to him that the prevailing rent in Vasant Vihar at

the relevant time was less than Rs.6,50,000/- per month.

The only suggestion given to him in this regard was that the

plaintiffs were not entitled to claim use and occupation

charges at the rate of Rs.6.5 lakhs per month. This

suggestion is altogether different from suggesting that the

market rent of similar premises in Vasant Vihar at the

relevant time was not Rs.6.5 lakhs per month. In fact, if the

case of defendant No.1 was that the market rent of similarly

situated premises was less than Rs.6.5 lakhs per month, it

ought to have suggested to the witness what according to it

the prevailing market rent was at the relevant time. That,

however, was not done. If a witness deposes a particular

fact and no suggestion to the contrary is given to him in his

cross-examination, the party against whom the deposition is

made is deemed to have accepted that part of the deposition

which thereby remains unchallenged in the cross-

examination. In JS Bhalla vs. G.J. Bhawnani 23 (1983)

DLT 125, the owner of the property had appeared in the

Court and deposed that he was the owner and lease deed

was executed in his favour. He, while in the witness box,

was not cross examined about the ownership of the property

in question. It was observed that in the absence of cross-

examination it must be held that the appellant had

admitted the facts deposed by the respondent. In Mahant

Mela Ram Chela Mahant Inder Dass vs. Shiromani

Gurudwara Parbandhak Committee, Amritsar AIR 1992

Punjab & Haryana 252, it was observed that a party should

put to each of its opponents witnesses so much of his case

as concerns that particular witness and if no such

questions are put, the court presumes that the witness

account has been accepted.

Defendant No.1 has examined only one Mr.Ashok

Sharma, Manager, who is the authorized attorney of

defendant No.1 Company. In his affidavit by way of

evidence, Mr. Ashok Sharma has not even dealt with the

issue of rent which the suit premises would have fetched,

had it been let out during the period from 01.05.1998 to

31.10.1998. In his cross-examination, Mr. Ashok Sharma

clearly stated that he could not say whether at the time of

termination of the tenancy the prevalent rent in t he market

of the similar property was Rs.6,50,000/- per month. Thus,

this witness did not even deny the claim of the plaintiffs

with respect to the market rent of similar properties at the

relevant time. In the absence of any evidence at all from

defendant No.1 in this regard, the otherwise unchallenged

testimony of Mr. Surinder Aggarwal with respect to the rent

prevailing in the market at the relevant time remains

absolutely unrebutted. I see no reason to reject the

unrebutted testimony of Mr. Surinder Aggarwal in this

regard and consequently, hold that had the suit premises

been let out, it would have fetched rent of Rs.6,50,000/-

p.m. during the period from 01.05.1998 to 31.10.1998.

7. The amount payable to the plaintiffs towards

damages for use and occupation for the period from

01.05.1998 to 31.10.1998 after giving benefit of the

payment made by defendant No.1 for this period at the rate

of Rs.79,350/- per month comes to Rs 34,23,900/- Shri Om

Prakash Gupta, learned counsel for the plaintiffs, very fairly

stated during the course of arguments that an excess

deposit of Rs.44,400/- was made by defendant No.1 in

CS(OS) No.735/1997 which amount was withdrawn by the

plaintiffs and defendant No.1 is entitled to adjustment of

that amount. After giving adjustment for the aforesaid

amount of Rs.44,400/-, the balance amount payable to the

plaintiffs comes to Rs 33,79,500/- The issues are decided

accordingly.

ORDER

8. In view of the above findings of the issues, a decree

of Rs 33,79,500/- with interest at the rate of 6% per annum

with effect from 01.11.1998 till realization is passed in

favour of the plaintiffs and against defendant No.1. The

plaintiffs are directed to pay requisite court fee on the

amount of Rs 33,79,500/- after adjusting the court fee

already paid by them on the amount of Rs 6.5 lacs claimed

as damages for use and occupation for May, 1998, within

four weeks failing which the plaint shall stand rejected.

In the facts and circumstances of the case, there

shall be no order as to costs.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE SEPTEMBER 15, 2011 'sn'/bg