Delhi High Court
Bhupinder Singh vs State Bank Of India (Sbi) on 11 September, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1911/2000 & conn.
% 11th September, 2012
+ CS(OS) 1911/2000
BHUPINDER SINGH ..... Plaintiff
Through: Mr. Ajay Verma & Mr. Amit Mehra
Advocates.
versus
STATE BANK OF INDIA (SBI) D+ ..... Defendant
Through: Mr. S.L. Relan, Advocate.
+ CS(OS) 2552/2000
PUSHPA SINGH ..... Plaintiff
Through: Mr. Ajay Verma and Mr. Amit Mehra
Advocates.
versus
STATE BANK OF INDIA D+ ..... Defendant
Through: Mr. S.L. Relan, Advocate.
+ CS(OS) 2553/2000
VIRENDER SINGH ..... Plaintiff
Through: Mr. Ajay Verma and Mr. Amit
Mehra Advocates.
versus
STATE BANK OF INDIA D+ ..... Defendant
CS(OS) 1911/2000 & conn. Page 1 of 19
Through: Mr. S.L. Relan, Advocate.
+ CS(OS) 2554/2000
RAJENDRA SINGH ..... Plaintiff
Through: Mr. Ajay Verma and Amit Mehra
Advocates.
versus
STATE BANK OF INDIA ..... Defendant
Through: Mr. S.L. Relan, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1.
By this judgment, four suits filed by the plaintiffs/landlords for
recovery of mesne profits against the same defendant with respect to
different floors of the same premises would stand disposed of. The
particulars of the suit premises leased out, the period of unauthorized
occupation and the rate of rent which was paid on the date of termination of
the tenancies are as under:-
Suit No. Owner/Landlord Property Property Tenant Date of Unauthorised Rent Prior
No. Details Since Notice of Occupant to
Termination w.e.f Termination
1911/00 Bhupender Singh 1822/1 Main Demised 1970(earlier 12.8.97 5.9.97 till `27.50 /sq.
Chandni Premises=1820 with the 2.9.99 ft.
Chowk, sq. ft. State Bank
Delhi-06 Main hall on of Patiala ` 13.75 sq.
the ground since the 12.8.97 5.9.97 till ft.
floor, small 1950s) 2.9.99
strong room,
adjoining room, 29.6.91 23 mths 28
bath and W.C., days)
and part of the
mezzanine
Additional
Demised
Premises=
315.84 sq. ft.
Extended
portion of the
mezzanine
floor, in the
main hall on
the ground
floor of the said
Property,
admeasuring
about 315.84
sq. ft.
2552/00 Pushpa Singh w/o 1822(C) 2 Halls on the 15.9.83 7.10.97 15.11.97 till `13.22/sq. ft.
Bhupendra Singh Chandni First and 2.9.99
Chowk, Second Floor
Delhi-06 (Western Side) (21 mths 18
along with part days)
of the
Balconies on
the 2 floors and
the Bathroom
on the First
Floor= 427 sq.
ft.
2553/2000 Virendra Singh 1822/2(A) 2 Halls on the 15.9.83 7.10.97 15.11.97 till `13.22/sq. ft.
s/o Bhupendra Chandni First and 2.9.99
Singh Chowk, Second Floor
Delhi-06 (Eastern Side) (21 mths 18
along with part days)
of the
Balconies on
the 2 floors and
the Bathroom
on the First
Floor= 427 sq.
ft.
2554/2000 Rajendra Singh 1822(B) 2 Halls on the 15.9.83 7.10.97 15.11.97 till ` 13.22/ sq.
s/o Bhupendra Chandni First and 2.9.99 ft.
Singh Chowk, Second Floor
Delhi-06 (Middle Side) (21 mths 18
along with part days)
of the
Balconies on
the 2 floors and
the Bathroom
on the First
Floor= 427 sq.
ft.
2. Originally, the suits were dismissed by the judgments of the
learned Single Judge of this Court dated 5.5.2011, however, the judgments
were set aside by the Division Bench vide its judgment dated 12.12.2011,
and it was held that plaintiffs are entitled to mesne profits.
3. SLPs were also filed by the bank against the judgments of the
Division Bench dated 12.12.2011 but the same have been dismissed on
7.5.2012.
4. In support of its claim of mesne profits, the plaintiffs have led
evidence with respect to prevalent rents in the Chandni Chowk area where
the demised premises are also situated. The details of these lease deeds
alongwith their exhibit marks and other particulars are as under:-
Bank Date Exhibit Lease w.e.f Area (Sq. Ft.) Rent(`)/Rate
`/SSq. Ft.
Oriental Bank 15.2.93 PW1/20 15.03.93(01.04.92-31.03.95) 2600(1300 G floor 1,35,000 P.M-` 52
Fatehpuri Ch. 1300 Mezannine)
Chowk --01.4.95-31.03.98 1,55,250-` 59
*15% increase 2600(1300 G floor
every three year 1300 Mezannine)
Federal Bank Katra 3.10.97 PW1/21 03.10.97 GF -` 70/sqft.
Baryan Off. Ch.
Chowk
SBI Mortgage- 18.2.99 PW1/18 18.02.99
Cum agreement to
lease
Tamil Nadu 21.1.00 PW1/22 21.01.00 4005 1st Floor (P.80) 2,00,000- ` 50
Mercantile Bank
Fatehpuri Ch.
Chowk
Punjab National Nov. 1999 PW1/23 547 Basement +1371 97,900 - ` 51
Bank S.C. Sen GF
Road Fountain/Ch.
Chowk
SBI Esplanade- 28.1.00 PW1/19 09 August 1999 1341 1st Fl 1362 2nd Fl -` 55
Katra Mashro Off -` 50
Ch. Chowk
Oriental Bank of 24.5.00 PW1/24 24.05.2000 (01.04.98- 2600 (GF 1300 + 1300 1,78,537 ` 69
Commerce 31.03.2001) Mezz)
Jammu & Kashmir 27.4.00 PW1/25 27.04.2000 3000 Sq. ft. (G. Floor) 2,25,000 -` 75
Fatehpuri Ch.
Chowk
5. The defendant bank, on the other hand, has led evidence with
respect to leases in the area in question as under:-
Bank Lease Exhibit Area (Sq. Ft.) Rent (`) Rate ` Per. Sq. Ft.
Vijaya Bank 9.9.2002 (w.e.f 18.11.01) DW3/1 1340 GF 1,12,980/- (34.98)
1888Mez
3228 or 3230
Syndicate Bank 27.9.2001 DW 4/1 4635FF & SF 69,525+25% increase (15)
30.1.92 5570 FF + SF 36,553.12
6(i) Before I begin any discussion on the amount of mesne profits
which should be held payable to the plaintiffs, two aspects may be noted by
me. First is that there is invariably some amount of honest guesswork which
is involved whenever mesne profits are calculated. Of course, the discretion
exercised is a judicial discretion conditioned by the evidence which is led by
the parties in the case.
(ii) The second aspect is that counsel for the defendant argued that
the plaintiffs have not stepped into the witness box and only their attorneys,
have deposed who are either the husband or the father of the plaintiffs, and
therefore, the evidence led in the suits except CS(OS) 1911/2000 cannot be
read.
This argument of the defendant bank is rejected because for
proving of mesne profits, any person who is conversant with the facts with
respect to the mesne profits can depose and it is not even necessary that such
person should be an attorney of the plaintiff. Also the evidence which has
been relied upon is specific documentary evidence and therefore, the
argument of the defendant that the evidence of the plaintiffs in suits no.
CS(OS) 2552/2000 to 2554/2000 should be rejected is a misconceived
argument and is rejected.
7(i). Now on to the issue of determination of mesne profits. On this
issue firstly, I must deal with one point which is raised on behalf of the
defendant bank that the suit premises are not situated on the main Chandni
Chowk Road whereas the lease deeds which have been relied upon by the
plaintiffs are of those premises which are situated on the main Chandni
Chowk Road, and therefore, the rents which are specified in the lease deeds
proved on behalf of the landlords cannot be looked into.
(ii) In my opinion, this argument raised by the defendant is
essentially misconceived, though, I would take the same into account while
deciding the amount/rate of mesne profits. This I say so, because the
demised premises are admittedly connected to the main Chandni Chowk
Road by a passage of just 30 ft. and that too within the same building which
is situated on the main Chandni Chowk Road. The 30 ft. passage opens into
a chowk where the demised premises which were let out to the bank are
situated and which is a part of the premises on the main Chandni Chowk
Road. Therefore, there may be a slight modulation as compared to a bank of
which frontage is on the main road, but that's all. It cannot be held that the
lease deeds proved and exhibited by the plaintiffs cannot be relied upon at
all.
8. A reference to the lease deeds filed by the plaintiffs as
Ex.PW1/18 to Ex.PW1/25 show that the rates of rents have varied from ` 52
per sq. ft. to ` 75 per sq. ft. The rates are the rates for different periods from
the years 1993 to 2000. The rents also vary because in some of the lease
deeds which have been proved and exhibited on behalf of the plaintiffs, the
portion which is let out is situated either on the basement or the ground floor
or the first floor or the second floor. These aspects will be considered by me
when I give the findings with respect to each of the suits inasmuch as,
whereas in suit no. CS(OS) 1911/2000, the premises for which the mesne
profits have to be calculated are situated on the ground floor and the
mezzanine floor, the portions which are the subject matter of the suit no.
CS(OS) 2552-2554/2000 are on the first and second floor of the same
property.
9. There is another factor which has to be considered by me and
which is that the defendant claims that the areas which are the subject matter
of the lease deeds proved on behalf of the plaintiffs are renovated premises,
and therefore, would be capable of fetching much more rents than the
demised premises which are stated to be in a dilapidated condition. Another
reason urged for claiming reduction of mesne profits is that within the
demised premises there is a tree which is stated to be existing.
10(i) On the aspect as to whether the areas which are subject matter
of the lease deeds Ex.PW1/18 to Ex.PW1/25 are more modern/renovated
than leased premises, the defendant bank has led oral evidence of its officer
Mr. Ujjesh Sinha as DW-2. DW-2 Mr. Ujjesh Sinha has deposed with
respect to the premises which are subject matter of the lease deeds
Ex.PW1/18 to Ex.PW1/25 having better aesthetic looks on account of better
interiors such as mosaic/granite floorings in some cases and tile flooring in
another cases. There is deposition as to the inferior comparison of location
of the suit premises qua other leased premises. There is also a reference to a
Jamun Tree within the hall of subject building and which causes leakage in
the premises. I may state that in fact the plaintiffs themselves had put a
specific letter Ex.DW2/4 dated 2.8.1997 which no doubt talks of bank
seeking to renew the lease w.e.f. 5.2.1997, and which bank would not have
if the demised premises were really not suitable to the defendant, as now
alleged, though, the bank has also stated that the roof is leaking and requires
repairs.
(ii) The relevant portion of deposition of DW-2 reads as under:-
"5. That there existed one very old Jamun Tree
within the Hall of the premises of the Bank near the outer
door. The Trunk and the branches of the Jamun Tree
erupted beyond the roof of the Hall, which caused
blockade of rain water on the roof as all outgoing points of
rain water used to get clogged with the dry leaves falling
from the Jamun Tree. The accumulated rain water also
seeped in the premises along with trunk of the tree and
through the ceiling as well as due to heavy logging of
water at the roof due to clogging of rain water pipes
causing much damage to the furniture and stationary of the
Bank. The demised premises was not even worthy of rent
@ Rs.27.50 per Sq. ft. per month, which the Bank was
paying upto the date of vacation. It could never fetch Rs.
100/- per Sq. ft. per month as claimed. S. Bhupinder
Singh-landlord/Plaintiff used to visit the branch premises
every Thursday in the evening to lit a Diya and pray to
some Peer Shah Baba, narrated by him to be in the suit
premises.
6. xxxxxxxx
7. That the respective premises were taken on lease
by the J&K Bank Limited and the Tamilnad Mercantile
Bank Ltd.for the first time in the year 2000 and hence were
on a separate footing on account of fresh lease and cannot
be compared with the suit premises, which was being
renewed since prior to 1955. The premises occupied by
the J&K Bank Limited and the Tamilnad Mercantile Bank
Ltd. has mosaic/granite floorings alongwith aesthetic look
in the entire interior of the building, which is well
maintained. These premises are directly approachable on
the main Chandni Chowk Road.
8. That the premises occupied on lease by the
Punjab National Bank on Fountain Chowk was exactly
opposite the parking at Gandhi Maidan and was directly
approachable from the Main Road and was thus better
located then the premises taken on rent by the Defendant
and therefore both the premises cannot be equated for
comparing the rent, which these premises could fetch.
9. That the premises occupied by the Federal Bank
Limited is on main Katra Baryan Road and also falls on
the ground floor with direct approach to the Main Road.
This premises was taken on lease by the Federal Bank for
the first time in 1997 and hence the rent of a first timer
branch is not comparable with the rent of a building on
lease being renewed from time to time since prior to 1955.
10. That the premises occupied by the Oriental Bank
of Commerce is on main Fatehpuri Chowk is on ground
floor with easy access approach and the vinyl tiles have
been laid on the floor giving it a very good looking
appreciative look while the floor of the suit premises was
simple plastered with cement with many cracks in the floor
as well as in the walls.
11. That various branches of other Banks upon
which the Plaintiff had relied are situated with better and
direct approach to the main Chandni Chowk Road as well
as are and were well maintained."
11. In my opinion, the evidences which have been led on behalf of
the defendant are merely oral depositions, and thus I would not like to attach
far too much weight to these oral depositions. The relevancy of evidence
which is led in a case, and the weight which is to be attached to the evidence
are two separate aspects. I am not attaching too much weight for the reason
that the statements as reproduced aforesaid are general statements without
any specific date or specific details of the persons before whom inspections
were done and how the deposition must be taken as correct without specific
facts/documents/details. In fact, if the deposition was correct, it was not
difficult for the officer of the defendant bank DW-2 to have taken
photographs with respect to the various leased premises which he visited,
and which leased premises are the subject matter of the leases Ex.PW1/18 to
Ex.PW1/25. The witness has also not filed any record of the defendant bank
showing that inspection was in fact carried out by the witness DW-2 and as
deposed to. There had to be some official record as the witness was doing
official work of the bank.
12. So far as the other witness of the bank DW-1 is concerned, the
said officer has again deposed similarly as DW-2. In his cross-examination
this witness has however clearly admitted that he has absolutely no
recollection of the details of the dates of the visits to the different leased
premises which are the subject matter of Ex.PW1/18 to Ex.PW1/25. This
witness also specifically admitted that he never informed any superior at any
time before going on the visits to the leased premises which are the subject
matter of Ex.PW1/18 to Ex.PW1/25. This officer further admits that he does
not remember any name of the officer of the banks where he visited. I must
further to this add the same rationale which I gave with respect to DW-2 in
that this witness if he was telling the truth could well have taken
photographs of the premises he visited and at least if not the photographs,
there would have been a record of inspection and a detailed note in this
regard maintained by defendant-bank but admittedly, that is not the case.
13. I therefore reject the argument on behalf of the defendant that
lease deeds Ex.PW1/18 to Ex.PW1/25 cannot be looked at as they pertained
to renovated premises.
14(i) Counsel for the defendant has also drawn the attention of this
Court to three lease deeds, Ex.DW3/1, DW4/1 and DW4/2 which were
entered into with M/s Vijaya Bank and Syndicate Bank in the years
2001/2002 and 1992 to argue that the rate of rent in fact is to be taken at `
6.56 per sq. ft. or `15 per sq. ft. or `34.98 per sq. ft. as stated in those lease
deeds exhibited on behalf of the defendant.
(ii) Once again, in my opinion, this argument raised on behalf of
the defendant-bank is to be rejected because counsel for the plaintiff has
rightly pointed out to me that these low rate of rents are as a result of
compromise between the landlords and the banks which had the leased
premises which are the subject matter of the leases Ex.DW3/1, Ex.DW4/1
and Ex.DW4/2. The banks had vacated huge areas voluntarily of the
landlords, and because of this mutual benefit, the rate of rents were kept
low.
(iii) It is relevant in this regard to refer to the following admissions
of DW-1, DW-3 and DW-4 in their cross-examinations as under:-
Statement of Sh. A.K. Nangia, DW-1
"Ques. Are you aware that in 2002 Vijaya Bank had
returned possession of about 1400 sq. ft. on the
ground floor of the premises concerned to the
landlord?
Ans. I am not aware of that.
Ques. Is it correct that Vijaya Bank now has 1340 sq. ft.
on ground floor and 1888 sq. ft. on the
mezzanine floor.
Ans. I do not know."
(iv) In fact, more important is the cross examination of officer Sh.
Vikas Mehra of M/s Vijaya Bank, Chandni Chowk, DW-3, and who in so
many terms as stated herein, admitted the reason of compromise for the low
rent with respect to the premises leased out vide Ex.DW3/1 and which reads
as under:-
" It is correct that prior to the execution of
Ex.DW3/1, bank was in the possession of total area of
4840 sq. ft. (Vol. Bank had surrendered some portion
from the said area). It is correct that bank had
surrendered 1610 sq. ft. on the ground floor to the land
lord at the time of executing Ex.DW 3/1. It is correct
that the terms and conditions mentioned in Ex.DW3/1
were on the basis of concessions shown by both the
side."
(v) Similar is the statement of officer, Sh. Subhash Chander who came
from Syndicate Bank, Chandni Chowk Branch as DW-4 and who in his
cross-examination on 11.1.2011 stated as under:-
"It is correct that Ex.DW4/2 the total area of
rented premises is 5570 sq. ft. whereas in Ex.DW4/1
the area is mentioned as 4635 Sq. ft. I do not knokw
that at the time of execution of Ex.DW4/1, whether
Bank had surrendered 935 Sq. ft. to the landlord or
not."
15. In view of the above admission, in my opinion, the lease deeds
relied on by the defendant Ex.DW3/1, Ex. DW4/1 and Ex.DW4/2 cannot
show the actual market rent because the same show artificial/deflated rent
because of the compromises entered into between the landlords and lessee-
banks in those cases.
16. So far as the argument on behalf of the defendant-bank that
there is a tree in the premises, counsel for the defendant could not dispute
that this tree existed right from the commencement of the tenancy of the
defendant- bank. Therefore, in my opinion, existence or non-existence of
the tree will hardly have any impact though of course, the fact that there is a
leaking roof, and there will be cost for the repaires, which is being taken
note of by me for determining the final figure of the rate of mesne profits.
17(i) In view of the aforesaid discussion, and keeping in view all the
aforesaid aspects, I am of the opinion that the mesne profits which would be
payable in the different suits would be as per the chart hereunder:-
Suit No. Owner/Landlord Property Property Tenant Date of Unauthorised Mesne
No. Details Since Notice of Occupant profits
Termination w.e.f awarded
1911/00 Bhupender Singh 1822/1 Main Demised 1970(earlier 12.8.97 5.9.97 till ` 60 per
Chandni Premises=1820 with the 2.9.99 sq. ft.
Chowk, sq. ft. State Bank
Delhi-06 Main hall on of Patiala
the ground since the 12.8.97 5.9.97 till
floor, small 1950s) 2.9.99
strong room,
adjoining room, 29.6.91 23 mths 28
bath and W.C., days)
and part of the
mezzanine
Additional
Demised
Premises= ` 25 per
315.84 sq. ft. sq. ft.
Extended
portion of the
mezzanine
floor, in the
main hall on
the ground
floor of the said
Property,
admeasuring
about 315.84
sq. ft.
2552/00 Pushpa Singh w/o 1822(C) 2 Halls on the 15.9.83 7.10.97 15.11.97 till ` 45 per
Bhupendra Singh Chandni First and 2.9.99 sq. ft.
Chowk, Second Floor
Delhi-06 (Western Side) (21 mths 18
along with part days)
of the
Balconies on
the 2 floors and
the Bathroom
on the First
Floor= 427 sq.
ft.
2553/2000 Virendra Singh 1822/2(A) 2 Halls on the 15.9.83 7.10.97 15.11.97 till ` 45 per
s/o Bhupendra Chandni First and 2.9.99 sq. ft.
Singh Chowk, Second Floor
Delhi-06 (Eastern Side) (21 mths 18
along with part days)
of the
Balconies on
the 2 floors and
the Bathroom
on the First
Floor= 427 sq.
ft.
2554/2000 Rajendra Singh 1822(B) 2 Halls on the 15.9.83 7.10.97 15.11.97 till ` 45 per
s/o Bhupendra Chandni First and 2.9.99 sq. ft.
Singh Chowk, Second Floor
Delhi-06 (Middle Side) (21 mths 18
along with part days)
of the
Balconies on
the 2 floors and
the Bathroom
on the First
Floor= 427 sq.
ft.
(ii) I am giving a lesser rate of mesne profits as regards the
premises which are the subject matter of the suit nos. 2552/2000 to
2554/2000 as they are situated on the first and second floor as compared to
the ground floor premises which is the subject matter of suit no. 1911/2000.
(iii) I was initially inclined to grant different rates for the first floor
and the second floors, however considering the totality of the facts of the
present case and where bank would be essentially using the first and second
floors as its office, I feel that a consolidate rate of rent at ` 45 per sq. ft. per
month will meet the interest of justice.
18. The plaintiff will also be entitled to interest at the rate of 12%
per annum simple from the end of the month for which the mesne profits
have become payable by the defendant to the plaintiffs in view of the
judgment of the Supreme Court in the case of Indian Oil Corporation vs.
Saroj Baweja 2005(12) SCC 298. Of course, in case the bank has made any
payments during this period, the interest will only be payable on the balance
amount of mesne profits which remains to be paid. This is an aspect which
will be look into, if so required, in execution proceedings. It is again
clarified that the bank will be entitled to adjustment for all amounts which it
has paid to the plaintiffs, against the money decree being pressed today.
Credit will be given to the defendant bank as on respective dates of
payments of the amounts by the defendant bank to the plaintiff.
19. Relief:-
CS(OS) 1911/2000
A money decree is passed in favour of the plaintiff and against the
defendant for mesne profits at the rate of `60 per sq. ft. per month from
5.9.1997 to 2.9.1999 with respect to ground floor and at the rate of ` 25 per
sq. ft. per month from 5.9.1997 till 2.9.1999 with respect to the mezannine
floor portion.
CS(OS) 2552/2000
A money decree is passed in favour of plaintiff and against the
defendant for mesne profits at ` 45 per sq. ft. per month from 15.11.1997 to
2.9.1999.
CS(OS) 2553/2000
A money decree is passed in favour of plaintiff and against the
defendant for mesne profits at ` 45 per sq. ft. per month from 15.11.1997 to
2.9.1999.
CS(OS) 2554/2000
A money decree is passed in favour of plaintiff and against the
defendant for mesne profits at ` 45 per sq. ft. per month from 15.11.1997 to
2.9.1999.
In each of the suits, plaintiffs will be entitled to interest at the rate of
12% per annum simple from the end of the month when mesne profits are
payable on the arrears of the mesne profits which would remain due to the
plaintiffs i.e after plaintiffs give adjustment with respect to the amounts
which have been paid by the defendant to the plaintiffs. Adjustment of
payments already made will be given to the defendant on the respective
dates of the payments made by the defendant to the plaintiffs. The balance
amount which would remain to be payable by the defendant to the plaintiffs
when paid will first be taken towards interest and costs and thereafter
towards the principal amount of mesne profits payable. Plaintiffs in each of
the suits will also be entitled to costs in terms of the rules as applicable to
this Court. Decree sheets be prepared.
VALMIKI J. MEHTA, J
SEPTEMBER 11, 2012
ib
