United Bank Of India vs Smt. Shakuntala Yadav
2012 Latest Caselaw 80 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.601/2003

%                                                          4th January, 2012

UNITED BANK OF INDIA                                      ...... Appellant
                  Through:               Mr. Pankul Nagpal , Adv.


                            VERSUS


SMT. SHAKUNTALA YADAV                                         ...... Respondent

                 Through:                    Mr. Rajesh Yadav with
                                             Ms. Ruchira, Advs.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal filed under

Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment

of the Trial Court dated 19.4.2003, and by which judgment, the Trial Court

has awarded mesne profits at Rs.25/- per square feet for the period from

1.10.1997 till 31.12.2003 against the appellant-defendant/tenant.

2. There is no dispute that there was a relationship of landlord and

tenant between the parties. It is also not disputed on behalf of the appellant

that the tenancy was terminated by means of a legal notice dated 3.9.1997,

Ex.PW1/2 whereby the tenancy was terminated with effect from 1.10.1997.

3. The premises in question in the present case are ground floor and

first floor of the premises bearing no.A-24, Tagore Marg, Kirti Nagar, Delhi.

The area of the tenanted premises is 2886 square feet.

4. Before the Trial Court, the respondent/landlord led evidence in

the form of a lease deed executed between Bank of Baroda and its landlord

with respect to a premises No. 9, LSC Kirti Nagar, Delhi, i.e. in around the

same area where the tenanted premises are located. The tenanted premises as

also the premises which were the subject matter of the lease deed of Bank of

Baroda with its landlord, Ex.PW2/3 were thus both situated in the same Kirti

Nagar Area. Whereas the premises of the respondent is on the main road, the

premises taken by Bank of Baroda under the lease deed dated Ex.PW2/3 is

admittedly not on the main road. Mesne profits in this case have to be

calculated from 1.10.1997 to 31.12.2003 and therefore, for determining the

mesne profits, what are the mesne profits which would be prevalent in around

October, 1997 would be an issue. The lease deed Ex.PW2/3 is of the year

1995, i.e. about 2 years prior to the period commencing from which the mesne

profits have to be calculated.

5. The Trial Court has noted that rents have fallen during the

relevant period, and therefore, instead of granting Rs.43/- per square feet,

mesne profits have been granted at Rs.25/- per square feet. In every case of

determination of mesne profits, some amount of honest guess work is always

involved. Obviously, there cannot be complete exactness of evidence led with

respect to rate of rents/mesne profits, and the Courts have to make a best

judgment assessment on the basis of the evidence which is led before it. I

have already stated above that the suit premises are situated on the main road,

and surely, premises on the main road have far higher rents than premises

located in the interiors.

6. I therefore do not feel that the Trial Court has committed any

illegality or perversity in granting mense profits at Rs.25/- per square feet and

therefore there is no ground for interference in this appeal so far as the

awarding of the rate of mesne profits are concerned. In fact I find that the

Trial Court has been more than liberal to the appellant/bank inasmuch as the

rate of mesne profits should ordinarily undergo an increase each year,

however, the rate of mesne profits which has been granted continues to be for

a fixed amount for the entire period from 1.10.1997 to 31.12.2003, i.e. a

period of about 6 years.

7. At this stage, it is however necessary to point out a seeming

illegality in the impugned judgment which allows interest at 9% per annum

pendent lite and future till realization. I may note that the suit has been filed

on 20th October, 1997 and therefore there would hardly be any mense profits

which would be payable with respect to the pre suit period. The mesne profits

have only accumulated pendent lite and till 31.12.2003 when the premises

were vacated. Therefore it cannot be said that interest at 9% per annum can be

granted on the total amount of the money decree on mesne profits from the

date of filing of the suit. Obviously, interest has to be calculated only from the

end of the month for which the mesne profits became payable. Learned

counsel for the respondent could not very seriously dispute this illegal

position. I therefore clarify the impugned judgment by observing that when

the Trial Court has granted interest at 9% per annum pendent lite and future,

interest will only be calculated from the end of the month from which the

mesne profits would be payable, and it will not be that interest will be paid

from the date of filing of the suit on the total amount of mesne profits decreed.

8. In view of the above, the appeal, subject to the above

clarification, is dismissed, leaving the parties to bear their own costs. Trial

Court record be sent back.

VALMIKI J. MEHTA, J JANUARY 04, 2012 ak