Inder Kumar Kapur & Ors. vs United India Insurance Co. Ltd.
2012 Latest Caselaw 4499 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.2725/1996

%                                                     30th July, 2012

INDER KUMAR KAPUR & ORS.                                  ...... Plaintiffs
                Through:                 Mr.Siddharth Bhambha, Adv.


                            VERSUS

UNITED INDIA INSURANCE CO. LTD.            ...... Defendant
                  Through:  Mr.K.L.Nandwani, Adv.

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

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

The present suit being CS(OS) No.2725/1996 was filed by the

plaintiffs/landlords for possession and mesne profits against the defendant-

Insurance Company/tenant. The defendant has vacated the suit premises

during the pendency of the suit and the relief of possession is thus satisfied.

There is of course an issue with respect to date of vacation and which aspect I

will deal with hereinafter as the same will concern the aspect of determination

of mesne profits.

2. The admitted facts are that the defendant was inducted as a

tenant by the plaintiffs on the first and second floor of premises No.3,

Community Centre, Basant Lok, Vasant Vihar, New Delhi under an un-

registered lease deed dated 4.5.1990 by paying a monthly rental of `52,540/-.

Another lease deed, again un-registered, dated 7.6.1993 was entered into

between the parties for three years commencing from 4.5.1993. The rate of

rent during this extended period of three years was `60,421/-. The plaintiffs

terminated the tenancy by means of a notice dated 28.3.1996 from the

midnight of 3.5.1996. The subject suit for possession and mesne profits

thereafter came to be filed by them.

3. In the written statement, the relationship of landlord and tenant,

last paid rent of `60,421/- and the receipt of the legal notice dated 28.3.1996

are not disputed.

4. Since there was no registered lease deed with respect to the

disputed premises, the tenancy was a monthly tenancy and therefore the same

could have been and thus has been validly terminated by the legal notice

dated 28.3.1996. I therefore hold that the suit for possession and mesne

profits was correctly filed. I have hence to determine the mesne profits for

the period from 5.5.1996 to 15.3.2000. I may add that counsel for the

plaintiffs conceded that 15.3.2000 be taken as the date of the defendant

vacating the tenanted premises as per the case of the defendant and not May,

2000 as was originally the case of the plaintiffs as stated in their evidence.

5. Though there is no documentary evidence as such which is led

with respect to the rate of rent of the suit premises during the period from

1996 to 2000, however, there is evidence led on behalf of the plaintiffs of the

officer of the Standard Chartered Bank which was occupying the ground floor

and basement of the very premises where the subject tenanted premises are

situated. Standard Chartered Bank was also the tenant of the plaintiffs.

Sh.Inderjeet Singh Sandhu was the Regional Manager of the Standard

Chartered Bank and he as PW2 has filed his affidavit, Ex.PW2/A. This

affidavit is only of two paragraphs and these two paragraphs read as under:-

"1. That the aforementioned Standard Chartered Bank took the Basement, Ground Floor, alongwith mezzanine floor of building No.3, Community Centre, Basant Lok, Vasant Vihar, New Delhi on rent w.e.f. 1-4-1996 on a monthly rent of `3,25,000/- (Rupees Three Lakhs, Twenty-five thousand only). The total covered area of the rented premises is 3500 sq.ft. (Three thousand five hundred sq. ft.).

2. That the rent of `3,25,000/- (Rupees Three Lacs and Twenty Five Thousand only) continued upto 31st March, 1999 where after it was increased as per the agreement to `4,06,250/- (Rupees Four Lacs, Six Thousand Two Hundred and Fifty only) per month which continued upto 31 st July,

1999. Thereafter the rent was reduced to `1,02,000/- (Rupees One lac and Two Thousand Only) w.e.f. 1-8-99."

6. A reading of the aforesaid affidavit shows that the rate of rent

was approximately `90 per square feet from 1996 to 1999 i.e. `3,25,000/- per

month. The rent was then increased from 1.4.1999 to 31.7.1999 to

`4,06,250/- however the rent was drastically reduced thereafter to `1,02,000/-

with effect from 1.8.1999. Therefore, there is evidence of rate of rent being

in the region of `90 per square feet from 4.5.1996 to 31.7.1999 and `22.5 per

sq. ft. thereafter. In my opinion, this rent of `90 per sq. ft. is liable to be

reduced inasmuch as not only because Standard Chartered Bank was

occupying the ground floor and basement but it had an entrance to the

building from front portion, whereas the defendant had entrance to upper

tenanted floors of the building from the back portion. I can take judicial

notice of the fact that rent for basement is much lower than the rent of a

ground floor portion and similarly rent of first floor and above is also less

than the ground floor portion. Accordingly, taking all the aforesaid facts

together I would reduce the rate of rent by 20% from the rent which was paid

by the Standard Chartered Bank inasmuch as some amount of honest

guesswork is always involved in the exercise of calculating mesne profits. I

therefore hold that the plaintiffs will be entitled to a sum of `72 per sq. ft. per

month from 5.5.1996 to 31.7.1999. For the period from 31.7.99 to 15.3.2000

the rent, in terms of the affidavit of PW2 of rent falling to 25% w.e.f.August,

1999, would be @ `22.5 per sq. ft. per month from 1.8.99 to 15.3.2000.

Plaintiffs will also be entitled to interest at the rate of 9% per annum simple

from the end of the month for which mesne profits are payable in terms of the

judgment of the Supreme Court in the case of Indian Oil Corporation Vs.

Saroj Baweja& Anr. 2005 (12) SCC 298.

7. Learned counsel for the defendant very vehemently argued that

the rate of rent of Standard Chartered Bank was more inasmuch as the

premises given to the Standard Chartered Bank by the plaintiffs were air-

conditioned premises, however, in my opinion this argument is without any

merit for two reasons. Firstly, PW1/plaintiff no.3 in his cross-examination

specifically denied the suggestion when put on behalf of the defendant that

the rate of rent of Standard Chartered Bank included the provision of air

conditioning by the plaintiffs. Secondly in my opinion, if the defendant was

really telling the truth nothing prevented the defendant from leading its

evidence to such effect however, I note that the defendant has chosen not to

lead any evidence whatsoever in this case and its evidence stood closed after

evidence was not led in spite of numerous opportunities. The order dated

4.3.2008 closing evidence of the defendant has become final and has not been

challenged. A person who does not step into the witness box to prove his

case, has necessarily to fail including for the reason that if such person would

have stood in the witness box he would have been subjected to the test of the

cross-examination.

8. In view of the aforesaid, suit of the plaintiffs is decreed in favour

of the plaintiffs and against the defendant for mesne profits at the rate of `72

per sq. ft. per month for an area of 2840 sq. ft. from 5.5.1996 to 31.7.99 and

from 1.8.1999 to 15.3.2000 @ `22.5 per sq. ft. per month. The plaintiffs will

also be entitled to interest at the rate of 9% per annum from the end of month

from which mesne profits are payable till the mesne profits are actually paid.

The plaintiffs will also be entitled to costs of the suit as per rule of this Court.

9. In case any amounts have been paid by the defendant to the

plaintiffs for the period from 5.5.1996 to 15.3.2000, defendant will be entitled

to adjustment for this amount paid, and which is an aspect which will be gone

into in the Execution Proceedings. Also, since admittedly the plaintiffs have

with them an amount of `1,57,000/- towards security deposit, out of the total

amount due in terms of the present decree, firstly, this deposited amount will

be reduced from the principal amount of the decree.

10. Decree sheet be prepared. Suit is accordingly decreed and

disposed of.

VALMIKI J. MEHTA, J JULY 30, 2012 ak