Delhi High Court
M/S Majestic Software Ltd. vs S.C. Chopra on 1 May, 2013
Author: Sudershan Kumar Misra
$~R4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 12/2008
Decided on 1st May, 2013
M/S MAJESTIC SOFTWARE LTD. ..... Appellant
Through None.
versus
S.C. CHOPRA ..... Respondent
Through None.
CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
SUDERSHAN KUMAR MISRA, J.(Oral)
1. The appellant, Majestic Software Ltd., Mumbai, is aggrieved of a
judgment dated 13th September, 2007, whereby the suit instituted by
respondent, Sh. S.C. Chopra, was decreed for mesne profits @ Rs.31,200/-
per month from 1st February, 2001 to 30th March, 2003 against the appellant,
who was arrayed as the first defendant in the court below. The amount
decreed was subject to adjustment of any amounts that may already have
been received by the decree holder/respondent. The costs were also
awarded in favour of the respondent and against the appellant.
2. The respondent/plaintiff owned two front flats on the second floor of
property bearing No.E-584, Greater Kailash, Part-II, New Delhi-110048,
that is the suit premises. The appellant, who was arrayed as defendant No.1
in the court below, was inducted as a tenant in the suit premises by a
RFA No.12/2008 Page 1 of 5
registered Lease Deed dated 30th August, 1999. In terms of the said Deed,
the appellant was obliged to pay rent @ Rs.24,000/- per month apart from
maintenance as well as electricity and water charges which were payable in
terms of bills raised from time to time by the concerned authorities. It is
alleged that after taking possession of the premises, the appellant / judgment
debtor defaulted in payment of electricity and water charges and a notice
under Section 24 of the Indian Electricity Act was also received for
disconnection of supply. The arrears towards electricity bills are stated to
be to the tune of Rs.3,79,960/-. It is also alleged that the defendant /
judgment debtor was irregular in making payment of rent. Ultimately, by a
notice dated 28th December, 2000, the plaintiff/respondent terminated the
tenancy and called upon the appellant / defendant No.1 to vacate the
premises, in terms of Section 106 of the Transfer of Property Act, 1882. In
the notice to quit, the respondent also made it clear that in case the
appellant/defendant No.1 fails to hand over the possession of the premises,
the appellant would be liable to pay damages for the unauthorized
occupation @ Rs.40,000/- per month. It was alleged that since the
defendant No.1 failed to either vacate or even to clear arrears of electricity
charges, the plaintiff was obliged to sue for recovery of possession, as well
as damages @ Rs.40,000/- per month, besides other reliefs.
In response, a number of defences were raised by the appellant. It
was, inter alia, contended that, in fact, the appellant is not at fault as there
are no outstanding electricity or water dues so far as the appellant is
concerned. It was also contended that the lease, which was for five years,
was being undermined by the plaintiff/respondent who is interfering in the
peaceful possession of the premises by harassing the appellant in different
RFA No.12/2008 Page 2 of 5
ways. The appellant also denied the allegation with regard to non-payment
of rent and further contended that, in any event, non-payment of two
months‟ rent could not have given cause to the respondent to terminate the
lease because Clause iii(1) of the aforesaid Lease Agreement permits
termination of tenancy only in case accumulated arrears of rent are for at
least three months. Receipt of notice under Section 106 of the Transfer of
Property Act was also disputed.
3. On 17th January, 2005, following issues were framed:
"1. Whether the suit of the plaintiff is pre-
mature, as alleged?
2. Whether the plaintiff is entitled to the
possession?
2A. Whether the suit is bad for mis-joinder
of the defendant no.2 Shri A.V. Nayyar
and, if so, its consequences? OPD-2
3. To what amount, if any, the plaintiff is
entitled as damages/mesne profits?
4. Relief."
4. By an interim order passed on 5th July, 2002 on an application moved
by the plaintiff/respondent under Order 39 Rule 10 of Code of Civil
Procedure, the appellant was directed to pay Rs.24,000/- per month to the
respondent with effect from 1st February, 2001, along with electricity
charges for the suit premises. It appears that the aforesaid interim order
under Order 39 Rule 10 of CPC passed by the court below on 5th July, 2002
was not complied with and therefore the plaintiff/respondent was obliged to
seek its execution by filing Execution Petition No.416/2006. During those
RFA No.12/2008 Page 3 of 5
proceedings, the appellant handed over the possession of the premises to the
respondent. After discussing the evidence led by the respondent, also the
cross examination, as well as the contentions of both sides, the court below
concluded that, in fact, the notice to quit under Section 106 of the Transfer
of Property Act was duly served on appellant whereby the tenancy was
determined before the filing of the suit and, consequently, it cannot be
concluded that the suit was pre mature.
5. The main ground, that has been raised in the appeal, is that no proper
enquiry was ordered by the trial court in determining quantum of the mesne
profits and they have been determined merely on assumption and guess
work and further that the said mesne profits have been awarded without any
specific finding as to unauthorized occupation or wrongful possession on
the part of the appellant/defendant.
6. Looking to the manner in which the court below has approached the
question of quantification of mesne profits, I am of the considered opinion
that the same is based on cogent reason and cannot be faulted. The court
below has carried out an elaborate exercise keeping in mind the scope and
applicability of Section 57 of the Indian Evidence Act, 1872, as well as the
other facts and circumstances of the suit property and, therefore, the
conclusion reached by the court below in this regard does not appear to be
unreasonable. As regards the objection that no specific issue was framed by
the court below with regard to the unauthorized occupation, the same also
cannot be sustained for the reason that the said question is squarely covered
in issue No.2, which is, "whether the plaintiff is entitled to possession", and
also issue No.3, which is, "to what amount, if any, the plaintiff is entitled as
damages towards mesne profits". These issues squarely cover the question
RFA No.12/2008 Page 4 of 5
as to whether the appellant/defendant No.1 is in unauthorized and wrongful
occupation of the suit premises. This would also have been within the
understanding by the parties since the question of entitlement of the
respondent to the possession of the premises could not have arisen if the
occupation of the suit premises by the appellant/defendant was lawful and
valid. Not only that, the court below has specifically dealt with the question
of the nature of the appellant‟s occupancy and has, ultimately, concluded
after trial that the same was unauthorized and, in fact, in that conclusion, the
trial court has also determined the question whether the plaintiff is entitled
to return of possession and also whether plaintiff is also entitled for mesne
profits for the period appellant/defendant continued to be in unauthorized
possession.
7. The matter was taken up for final hearing on 17th April, 2013 and
since there was no appearance on behalf of the parties, no adverse orders
were passed and the matter was directed to remain on board in the category
of „Regular Matters‟.
8. Today also, the matter has been taken up and there is no appearance
on behalf of the parties.
9. The appeal is therefore dismissed for non-prosecution and also for the
above reasons.
SUDERSHAN KUMAR MISRA, J.
MAY 01, 2013
dr
