State Bank Of India vs Dr. Meera Luthra & Ors.
2017 Latest Caselaw 3789 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 45/2017

%                                                         31st July, 2017

STATE BANK OF INDIA                                        ..... Appellant
                  Through:               Mr. Bheem Sain Jain, Adv. for
                                         Mr. Sanjiv Kakra, Adv.
                          versus

DR. MEERA LUTHRA & ORS.                               ..... Respondents

                 Through:                Ms. Geeta Luthra in person.
                                         Ms. Jhum Jhum Sarkar, Ms.
                                         Shivani Luthra and Ms. Parul
                                         Sharma, Advocates.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the

appellant/defendant impugning the concurrent judgments of the courts

below; of the trial court dated 16.8.2012 and the first appellate court

dated 5.10.2016; by which the courts below have awarded mesne

profits to the respondents/plaintiffs at a particular rate, and which is

pleaded as being excessive. In order to understand the rate of mesne

profits granted, let me reproduce para 26 of the judgment of the trial

court which gives the relief to the respondents/plaintiffs and which

reads as under:-

"26. In view of the finding given on issues no 2,3 and 4, the suit of the plaintiff is partly decreed with costs. The defendant bank is liable to pay damages, mesne profits @ Rs. 875/- per month from 1.6.1993 to 30.6.1994, deficit of damages @ Rs.43 per sq. feet per month i.e. from 01.07.1994 to 30.11.1995 and deficit of Rs. 53 per sq. feet per month from 01.01.1996 to 31.12.1999, Rs.63 per sq. feet per month from 01.01.2000 till 03.04.2004, along with interest @ 95 p.a. Decree sheet be prepared. The Decree shall come into operation on filing of deficit Court fees. The file be consigned to Record Room."

2. The issue in the present case is that the tenancy of the

appellant/defendant was terminated by a legal notice dated 14.6.1994.

The premises in question is an area of 250 sq. yds situated at 17,

Vijaya Bank Building, Barakhamba Road, New Delhi. The period

with respect to mesne profits being payable is from 1.7.1994 till filing

of the suit on 31.5.1996, and thereafter till the appellant/defendant

vacated the suit premises on 3.4.2004.

3. The issue with respect to what are the mesne profits

payable with respect to a tenanted premises after termination of

tenancy is an issue of fact. The issue of fact of mesne profits depends

upon either of the parties proving the rate of rent in the year(s) for the

relevant period. Let us examine what was the evidence led by the

respective parties with respect to the rate of rent for the period from

1.7.1994 to 3.4.2004.

4. Appellant/defendant has placed reliance upon lease deeds

Ex. DW1/2 to Ex.DW1/5 and which are lease deeds pertaining to

different areas in the same premises and which were let out to the

appellant/defendant by other landlords. The respondents/plaintiffs

have relied upon two lease deeds Ex.PW1/A1 and Ex. PW1/Y. The

first lease deed Ex.PW 1/A1 is dated 1.12.2006 and the second lease

deed Ex.PW1/Y is dated 30.4.2007.

5. In my opinion, the respondents/plaintiffs can place no

reliance upon lease deeds of the later years 2006-2007 with respect to

the prevalent market rent for the period from 1.7.1994 to 3.4.2004.

Accordingly, it is seen that no evidence, which will carry weight being

the documentary evidence in the form of lease deeds, have been led by

the respondents/plaintiffs to prove the prevalent rate of rent in the

relevant period.

6. The appellant/defendant has on the other hand relied

upon four lease deeds from the years 1995 to 2000 with respect to the

very same premises and in fact in the same floor being the ground

floor. Normally there cannot exist any reason to discard these lease

deeds of the relevant period of the years 1995 to 2000, however, the

first appellate court has rightly rejected these lease deeds because

these lease deeds have been executed as extension lease deeds in terms

of the first lease deed which began in the year 1989. These lease

deeds Ex.DW1/2 to Ex.DW1/5 are thus not the lease deeds entered

into for the first time with respect to the period 1.7.1994 till 3.4.2004

because it is seen that once the lease deeds are of the earlier years than

the relevant period hence the lease deeds proved as Ex.DW1/2 to

Ex.DW1/5 are only extension lease deeds. Once Ex. DW1/2 to

Ex.DW1/5 are only the extension leases really the rentals of these

leases cannot be said to be rentals with respect to actual letting out in

the years 1.7.1994 till 3.4.2004. Therefore, the documents and

evidence led on behalf of the appellant/defendant also cannot be relied

upon because lease deeds of the year 1989 cannot be relied upon for

the rate of rent for 1.7.1994 to 3.4.2004.

7. The courts below are courts of facts and law. Once the

courts below arrived at findings of facts and arrived at conclusions,

this Court sitting in second appeal under Section 100 CPC ordinarily

cannot interfere. The first appellate court has relied upon the judgment

of this Court in the case of M.C. Agarwal HUF Vs. M/s Sahara India

& Ors. 2011 (183) DLT 105 and which states that unless evidence is

led to the contrary, courts can award/ordinarily grant 15% increase per

year for the rate of rent/mesne profits from the last admitted rate of

rent. Once both the parties have not led evidence, the court below has

rightly relied upon the ratio of the judgment of this Court in the case

of M.C. Agarwal HUF (supra).

8. In view of the above, no substantial question of law

arises. Dismissed.

JULY 31, 2017/ib                            VALMIKI J. MEHTA, J