Network Ltd vs Radha Kishan Agarwal & Ors
2012 Latest Caselaw 609 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision : January 30, 2012
+                        RFA(OS) 113/2011

       NETWORK LTD                             ..... Appellant
                         Through Mr.Rakesh Sawhney with Mr.
                         Sumit Singh Benipal, Advocates.

                         Versus

       RADHA KISHAN AGARWAL & ORS            ..... Respondents
                    Through Ms. Anju Lal with Mr.Om Prakash
                    Gupta, Advocates

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

1. Heard learned counsel for the parties.

2. We are concerned with the fair rental value of property bearing Municipal No.D-2, Local Shopping Centre-II, Vasant Vihar, New Delhi. The period for which the fair market rental has to be determined is 01.05.1998 till 31.10.1998.

3. The premises, consisting of a basement, mezzanine floor, first floor, second floor and mumty was admittedly let-out pursuant to a registered lease deed dated 02.05.1989: the lease commencing from 01.05.1989.

4. The agreed rent, as recorded in the lease deed was `60,000/- p.m. The agreed lease period was 9 years, with rent to be increased by 15% every 3 years.

5. The lease expired by afflux of time at the mid-night of 30.04.1998 and as of said date, with reference to the first agreed lease rent @ of `60,000/- p.m, increasing the same by 15% every 3 years, agreed rent payable was `79,350/- p.m, which was being paid till lease was operating between the parties.

6. Possession was handed over on 31.10.1998 and thus the issue: what has to be paid by the tenant to the landlord during the extended period of occupation, beyond the lease period.

7. As per the landlord, the fair market rental was `6,50,000/- p.m. As per the tenant, the fair market rental was not as claimed.

8. Highlighting that onus would be upon the landlord to prove the claim, for which one witness, Mr.Surendra Aggarwal was examined as PW-1, who on the subject deposed in para 9 of the affidavit by way of evidence, as under:-

"After the expiry of lease Defendant no.1, M/s network Limited, did not vacate the suit premises on 30.4.1998 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 became liable to pay damages for use and occupation of the suit premises @ `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."

9. On being cross-examined, the witness deposed as under:-

"It is wrong to suggest that the plaintiff is not entitled to claim the amount as mentioned in my affidavit of

evidence. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that plaintiff is not liable to claim use and occupation charges at the rate of `6.50 lakh per month,"

10. As regards the defence evidence, only one witness, Mr. Ashok Sharma was examined as DW-1 and on being cross- examined, he fairly admitted that he was in no position to affirm or deny whether prevailing rent in the market, of similar properties, was `6,50,000/- p.m during the period in dispute i.e. 01.05.1998 till 31.10.1998.

11. Decreeing the claim as laid in the plaint, the learned Single Judge has opined in the following words:-

"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 been 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 @ `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 `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 `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 `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 `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 `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."

12. Suffice would it be to state that the onus to prove the fair market rental was upon the plaintiff, who alleged the same to be `6,50,000/- p.m.

13. No documentary evidence was filed by the plaintiff. In the examination-in-chief, no reference was made to any property in the area or any lease-deed pertaining to a property in the area to justify the plea that fair market rental was `6,50,000/- p.m. A bald statement was made by the witness of the plaintiff during examination-in-chief.

14. We find that the witness has been cross-examined on the

subject. It is not that there is no cross-examination. The manner in which the cross-examination has been appreciated by the learned Single Judge is too technical and pedantic. From the cross-examination, we find that at two stages, two questions have been put to the witness. To the first question, the answer is „it is wrong to suggest that the plaintiff is not entitled to claim the amount as mentioned in my affidavit of evidence‟. To the second question, the answer is „it is wrong to suggest that the plaintiff is not liable to claim the use and occupation charges, @ of `6.50 lakh p.m‟. We would clarify that the use of words „not liable‟ is inappropriate, for the reason, he who claims is not liable for the claim in respect of the entitlement, but the entitlement has to be considered whether the person who claims is entitled to the claim.

15. Meaningfully read, there is a challenge to the bald statement made by the witness that the prevailing rent in the area was `6,50,000/- p.m. for similar properties.

16. Since the onus is on the plaintiff and the same has not been discharged, in that, no reference has been made to any property, much less to a similar property, which was allegedly fetching a monthly rent of `6,50,000/- during the period in dispute, we are afraid that the impugned decree cannot stand.

17. There is just no evidence before this Court to determine what would be the fair market rent. It is a case of a word of mouth versus a word of mouth and since the onus is on the plaintiff, the plaintiff must fail.

18. But, we cannot ignore that as per the agreement between the parties, the rent had to be enhanced by 15% every 3 years

and so doing, the rent payable was `79,350/- p.m. when the lease expired and taking a cue from the lease-deed, the same had to be enhanced by at least 15%. To cut short the matter, Mr.Rakesh Sawhney, learned counsel for the appellant states that his client is ready and willing to pay to the respondents `1,25,000/- p.m. for use and occupation charges pertaining to the period his client over-stayed in the premises i.e. for a period of 6 months.

19. Accordingly, we partially allow the appeal and modify the impugned decree and dispose of the suit filed by the respondents passing a decree in sum of `7,50,000/- (Rupees Seven Lacs Fifty Thousand only) against the appellant and in favour of the respondents, leaving the parties to bear their own costs throughout.

20. There is no clarity on the issue whether the appellant had been paying `79,350/- p.m. to the respondents during the extended period of the stay. Whereas, learned counsel for the appellant claims that the appellant did so, learned counsel for the respondents disputes the same. Learned counsel for the appellant states that the rent was tendered by cheque(s) which were enchased and his client has proof thereof.

21. We thus direct that, in any case, the appellant would deposit in the name of the Registrar General of this Court `2,73,900/- within two weeks and would file an affidavit within said period enclosing therewith proof of having paid `4,76,100/- (`79,350 x 6) and if the appellant has no proof and would be not filing the affidavit as directed, in said circumstance, the appellant would deposit within two weeks `7,50,000/-

(`1,25,000/- x 6). The deposit would be made in the suit and the Registrar General would disburse it to the respondents.

PRADEEP NANDRAJOG, J.

PRATIBHA RANI, J.

JANUARY 30, 2012 KA