M/S. Priya Exhibitors (P) Ltd. vs Oriental Bank Of Commerce
2012 Latest Caselaw 6059 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.1012 /1996

%                                                   9th October, 2012

         M/S. PRIYA EXHIBITORS (P) LTD.            ...... Plaintiff
                        Through: Mr. Sanjay Poddar, Sr. Adv. with
                                  Ms. Shobhana Takiar, Adv.


                            VERSUS



         ORIENTAL BANK OF COMMERCE                ...... Defendant
                     Through: Mr.V.Kanagaraj, Sr.Adv. with
                              Mr. Vipin Jai, Adv.


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

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

The subject suit for possession and mesne profits was filed by

the plaintiff/landlord against the defendant/bank/tenant with respect to the

suit premises which are of 3000 sq.ft. area in the first floor of the premises

bearing no.61, Basant Lok Community Centre, Vasant Vihar, New Delhi-57.

Before proceeding any further, I must state that so far as the relief of

possession is concerned, the suit by a detailed judgment was decreed on

27.11.1998. At that stage various contentions as raised by the defendant,

including of the tenancy continuing on account of payment of rent, were

considered, and the same were held against the defendant. The judgment

dated 27.11.1998 has become final as it was not appealed against. Once the

judgment dated 27.11.1998 is final, the issues which have been addressed in

that judgment, have also become final. The judgment dated 27.11.1998

holds that the defendant was not in authorized occupation from 9.1.1996. I

have therefore to calculate mesne profits from 9.1.1996 till 1.2.2000, the

date on which possession was admittedly given by the defendant to the

plaintiff.

2. The following issues were framed in this suit on 25.7.1997:-

"1. Whether the plaint has been signed and verified and suit instituted by an authorized person on behalf of the plaintiff. OPP

2. Whether the occupation of the suit property by the defendants became unauthorized w.e.f 10.1.94. OPP

3. Whether the plaintiff is entitled to mesne profits upto 9.1.96 @ 60,000/- per month and thereafter @ Rs.8,000/- per day, as alleged. OPP

4. Whether the plaintiff is entitled to recover possession of the suit property from the defendants. OPP

5. Whether no legal notice was served on the defendants, as alleged. OPD.

6. Whether the suit has not been properly valued for the purposes of payment of court fee and jurisdiction. OPD.

7. Whether the suit is barred by limitation. OPD.

8. Whether the suit property is the public premises within the meaning of Section 2 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and if so, its effect. OPD.

9. Relief."

3. All the aforesaid issues, except issue nos. 3, 6, 7 and 8, have

been held against the defendant in the judgment dated 27.11.1998 and

therefore I do not have to decide the same.

4. Let me now take up issue nos.3, 6, 7 and 8 for decision.

Issue no. 7

5. This issue is as to whether the suit is barred by the limitation.

The suit has been filed on 23.4.1996. The tenancy was terminated on

9.1.1996, and therefore, I fail to understand as to how the suit can be barred

by limitation. This issue is decided in favour of the plaintiff and against the

defendant.

Issue no.8

6. This issue is as to whether the property is public premises and

therefore governed by the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971. I really have failed to understand in fact why at all

this issue has been framed because the plaintiff is an admitted

owner/landlord of the suit property and plaintiff is not the State or a Public

Undertaking or Government Company etc, and the Public Premises Act

applies only to premises belonging to Government and its companies etc but

not to private persons who do not fall under the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971. This issue is accordingly decided

against the defendant and in favour of the plaintiff.

Issue no.6

7. The issue is as to whether the suit has not been properly valued

for the purpose of the court fee and jurisdiction. As per the plaint, the

plaintiff has claimed the reliefs of possession, mesne profits and damages.

So far as the relief of possession is concerned, since this is a suit for

possession by the landlord against the tenant, the suit has to be valued for the

purposes of jurisdiction and court fee at 12 months' rent in terms of Section

7(3)(e) of the Court Fees Act, 1870. The plaintiff has paid court fees on the

12 months' period rent. The suit is therefore properly valued for the relief

of possession and court fees have accordingly been paid. So far as the relief

for the purpose of mense profits and damages are concerned, the plaintiff has

valued the suit at the rate of damages claimed by it and the total of which

damages and mesne profits has been valued at Rs.20,08,000/- and on which

court fees have been properly paid. I therefore hold issue no.6 in favour of

the plaintiff and against the defendant and hold that the suit has been

properly valued for the purpose of court fees and jurisdiction and appropriate

court fee paid.

Issue no.3

8. That takes me to the main and real issue in the case as to what

mesne profits the plaintiff is entitled to from the defendant. As already

stated above, I have to decide the mesne profits payable for the period from

9.1.1996 to 1.2.2000. The plaintiff has filed on record and proved a lease

deed dated 5.6.1996, Ex.PW3/1 and which is with respect to the ground

floor portion of the property situated at 5, Community Centre, Basant Lok,

Vasant Vihar, New Delhi that is very much in the same area where the suit

premises are located and which is also in the Basant Lok Community Centre,

Vasant Vihar, New Delhi. In terms of Ex.PW3/1, the rate of rent is

Rs.1,50,000/- for 727 sq. ft. i.e. about Rs.206/- per sq.ft. This lease deed is

dated 5.6.1996, and is therefore relevant to determine the rate of mesne

profits from 9.1.1996 to 1.2.2000.

9. Considering that the suit premises are situated on the first floor,

the rate of rent of the first floor has to be lesser than rate of rent of the

premises which are subject matter of the Ex.PW3/1 which are on the ground

floor. The ground floor can be used as a showroom and which can fetch

more rent, whereas, the suit premises situated on the first floor can only be

used for office-cum-commercial purposes. Accordingly, I am of the opinion

that the plaintiff should be entitled to 50% of the rate as proved through

Ex.PW3/1 i.e Rs.103/- per sq.ft. I have also factored in the issue that the

mesne profits are payable from January, 1996 and the document, Ex.PW3/1

is of June, 1996. The plaintiff will also be entitled to an increase of 15%

every year from 9.1.1997 till 1.2.2000, the increase being a cumulative

increase i.e. the increase will be 15% increase on the rate of rent for the

previous year in terms of the judgment in the case of M.C.Agrawal HUF vs.

Sahara India & Ors., 2011 (183) DLT 105. Plaintiff will also be entitled to

interest at the rate of 12% per annum simple on the arrears of the mesne

profits till the time the payment is made to the plaintiff in view of the

judgment in the case of Indian Oil Corporation Vs. Saroj Baweja (2005) 12

SCC 298.

10. Learned senior counsel for the defendant argued that the

defendant has made various payments to the plaintiff during the pendency of

the suit, and also made payments to the Municipal Corporation of Delhi with

respect to claim made by the Municipal Corporation of Delhi with respect to

unpaid house tax on the property. Accordingly, it is observed that the

defendant will be entitled to adjustments with respect to all the amounts

which it has paid to the plaintiff from 9.1.1996 to 1.2.2000 including the

amounts the defendant has paid to the Municipal Corporation of Delhi in

discharge of the house tax liability of the plaintiff. Of course, I must clarify

that if there are any disputed issues on this aspect, then such aspect will be

examined in the execution proceedings, if any.

Relief

11. In view of the above, suit of the plaintiff is decreed against the

defendant for mesne profits at the rate of Rs.103/- per sq.ft. per month from

9.1.1996 to 8.1.1997. The rate of mesne profits from 9.1.1997 to 8.1.1998

will be 15% more than the rent payable from 9.1.1996 to 8.1.1997, and for

the period from 9.1.1998 to 8.1.1999 the rate of mesne profits will be 15%

more than as payable for 9.1.1997 to 8.1.1998, and so on till 1.2.2000. The

plaintiff will be entitled to interest at the rate of 12% per annum simple on

the arrears of mesne profits, making it clear that before calculating the

arrears of mesne profits the amounts which the defendant has paid to the

plaintiff or to the MCD legally on behalf of the plaintiff, then such amounts

will be reduced from the total amounts payable under today's judgment, and

interest will only be payable on the balance amount payable. The plaintiff

will also be entitled to costs in terms of the Rules of this Court. Decree

sheet be prepared on the plaintiff paying the necessary court fee with respect

to the mesne profits.

VALMIKI J. MEHTA, J OCTOBER 09, 2012 ak