All India Shwetamber Sthanakwasi ... vs The Oriental Insurance Co. Ltd.
2017 Latest Caselaw 1560 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               DATE OF DECISION: 23RD MARCH, 2017

+                         CS(OS) NO.688/2008

       ALL INDIA SHWETAMBER STHANAKWASI JAIN
       CONFERENCE (REGD.)                          ..... Plaintiff
                    Through: Ms. Sonali Malhotra, Mr. Amit
                             Sanduja & Mr. Anshul Mehta, Advs.

                                 Versus

    THE ORIENTAL INSURANCE CO. LTD.            ..... Defendant
                  Through: Mr. Bhaskar Tiwari & Mr. Samyak
                           Jain, Advs.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The plaintiff instituted this suit for ejectment of the defendant from Room Nos.39-40 mezzanine hall along with two toilets on the first floor forming part of Jain Bhawan, 12 Shaheed Bhagat Singh Marg, New Delhi let out by the plaintiff to the defendant and for recovery of Rs.1,43,36,000/- towards arrears of mesne profits / damages for use and occupation from 1st September, 2006 till 29th February, 2008 together with interest @15% per annum and for permanent injunction to restrain the defendant from sub- letting or assigning or parting with possession of the premises.

2. The suit was entertained and vide order dated 21st April, 2008 summons thereof were issued to the defendant. The defendant on 11 th November, 2008 undertook to this Court to not sub-let, assign or part with possession of the premises in its occupation.

3. Before the issues could be framed in the suit, the plaintiff filed an application for decree insofar as for the relief of ejectment, on admissions. During the pendency of the said application, the parties settled their disputes and the defendant on 19th August, 2010 gave an undertaking to this Court to vacate the premises latest by 31st March, 2011. The defendant further gave its no objection to a decree for possession against it being passed.

4. Vide order dated 26th August, 2010, a decree for possession was passed in favour of the plaintiff and against the defendant in respect of "Room Nos.39-40 Mezzanine Hall along with two toilets on the first floors forming part of suit property known as Jain Bhawan, 12, Shaheed Bhagat Singh Marg, New Delhi as shown Red in the site plan Ex. P-1." It was further directed that the defendants shall hand over vacant physical possession of the premises to the plaintiff on or before 31st March, 2011.

5. Insofar as the claim of the plaintiff for mesne profits was concerned, vide order dated 24th November, 2011 the following issues were framed:

"1. Whether the tenancy of the defendant was validly terminated? OPP

2. Whether the plaintiff waived the notice dated 28.7.2006? OPD

3. Whether the plaintiff is entitled to damages for use and occupation of the premises and if so, at what rate and what amount? OPP

4. Whether the plaintiff is entitled to interest and if so, at what rate and to what amount? OPP

5. Relief."

6. The plaintiff examined its President Mr. Avinash Chorida as PW1 and who was cross examined by the counsel for the defendant. The plaintiff has

also examined Sh. Subhash Chander as PW2. The defendant has examined its Senior Divisional Manager Smt. Beena Dhawan.

7. The counsels have been heard.

8. It is not in dispute that the defendant vacated the premises on 30 th June, 2011 instead of 31st March, 2011 as undertaken. Thus the claim of the plaintiff for mesne profit / damages for use and occupation from 1st September, 2006 till 30th June, 2011 is for adjudication.

9. I may notice that though in the prayer paragraph of the plaint, the plaintiff has not sought the relief of future mesne profits i.e. from the date of institution of the suit till the date of vacation and the relief of mesne profits has been confined till 29th February, 2008 only (the suit was instituted on 1 st April, 2008) but during the hearing neither counsel has brought up the said aspect. Even otherwise, it is the settled position in law that a relief of future mesne profits can be granted by the Court even without a specific prayer being made therefor in the plaint. Reference in this regard can be made to R.S. Maddanappa Vs. Chandramma AIR 1965 SC 1812 and Bhagwati Prasad Vs. Chandramaul AIR 1966 SC 735 consistently followed by me in Santosh Arora Vs. M.L. Arora 211 (2014) DLT 312 (DB) and Chemons India Pvt. Ltd. Vs. Vijay Singh Sandhu (2013) 204 DLT 360.

10. Though the defendant has voluntarily vacated the premises during the pendency of the suit but the issues as framed above will have to be decided, also for the purpose of issue No.3 inasmuch as if either of issues No.1&2 is decided in favour of defendant, the plaintiff would not be entitled to mesne profits.

11. As far as Issue no1 is concerned, no argument has been raised by the counsel for the defendant. It is the case of the plaintiff in the plaint that the aforesaid premises were let out to the defendant at a rent of Rs.1,34,000/- per month with effect from 1st June, 1998; that the rent with effect from 1st June, 2001 was increased to Rs.1,54,560/-; that there was no registered lease in favour of the defendant after 31st May, 2004 and the defendant continued to pay rent at the same rate of Rs.1,54,560/-; that the plaintiff vide legal notice dated 28th July, 2006 determined the tenancy of the defendant with effect from 31st August, 2006.

12. The defendant in its written statement did not dispute the aforesaid pleas or the receipt of notice dated 28th July, 2006 and claimed to have replied thereto on 12th September, 2006. The defendant in the written statement has also not disclosed any ground on which its tenancy did not stand terminated by the said notice. The only plea of the defendant was of being entitled to renewal of lease. However, the defendant, even if had any right of renewal, did not sue for specific performance and on the contrary vacated the premises.

13. In the absence of any plea of invalidity of the notice of termination of the tenancy for any reason, the issue no.1 aforesaid is decided in favour of the plaintiff and against the defendant by holding that the tenancy of the defendant was validly terminated vide notice dated 28 th July, 2006 with effect from 31st August, 2006.

14. Issue no.2 is with respect to the waiver of the notice.

15. The counsel for the defendant has argued that the notice stood waived by the plaintiff continuing to receive the amount tendered by the defendant thereafter also towards rent.

16. I have enquired from the counsel for the defendant whether there was any enhancement in rent with effect from 1st September, 2006 or whether there was any other act by which it can be said that a fresh agreement in supersession of the earlier agreement had come into existence between the parties.

17. The counsel for the defendant has fairly stated that the amount at the same rate as before was being tendered for rent with effect from 1 st September, 2006 also and there is no plea of any fresh agreement. He has however stated that in the past also the rent was increased and the lease deed was executed with effect from back date and the defendant was expecting the plaintiff to behave similarly and to execute the lease deed and vacated the premises when finally realized that the plaintiff was not willing.

18. The same would however not amount to waiver of the notice of determination of tenancy.

19. It has been held in Mani Mann Vs. Ram Dulari 2001 (58) DRJ 618 (DB), Central Bank of India Vs. Lalit Kumar Bhargava (HUF) ILR (2006) II Delhi 270 (DB), Sarup Singh Gupta Vs. S. Jagdish Singh (2006) 4 SCC 205 and Madhvi Singh Vs. Pavik Lifestyle Ltd. 232 (2016) DLT 11 that from the factum of the landlord, even after the determination of tenancy, continuing to receive the amount computed at the same rate as before does not amount to waiver of the determination of tenancy.

20. Once it is found that the tenancy of the defendant was determined on 31st August, 2006, the plaintiff is entitled to and the defendant is liable for mesne profits/damages for use and occupation and the first part of Issue No.(3) is decided in favour of the plaintiff and against the defendant.

21. That takes me to the bone of contention between the parties i.e. the rate at which mesne profits have to be computed. The past registered lease deeds between the parties describe the premises as comprising of a built up / carpet area of 4480 sq. ft. with the rent in the registered lease deed dated 31 st January, 2000 being computed at the rate of Rs.30/- per sq.ft. per month and in the registered lease deed dated 18th October, 2002 being as aforesaid at the rate of Rs.1,54,560/- per month i.e. Rs.34.50 paise per sq. ft.

22. The last registered lease deed dated 18th October, 2002, the term whereof was till 31st May, 2004, inter alia provided that the lease shall be renewable at the sole discretion of the defendant for a further one term of three years with an escalation in rent of 15% over the last paid rent or prevailing market rent, whichever is less. Though the said renewal did not happen but in terms thereof, the liability of the defendant to pay to the plaintiff with effect from 1st June, 2004 at least at the rate of Rs.1,77,744/- i.e. 15% more than the last paid rent of Rs.1,54,560/- stands admitted. The defendant thus cannot possibly deny the claim of the plaintiff to the said extent.

23. The plaintiff obviously felt that the market rent was much more than that and has claimed arrears of mesne profits from 1st September, 2006 to 29th February, 2008 at the rate of Rs.200/- sq. ft. per month.

24. The counsel for the plaintiff has argued that the plaintiff has led evidence of letting of Shop No.82, Ground Floor, Bhagat Singh Market, Gole Market, New Delhi to Kotak Mahindra Bank Ltd., ad-measuring 116 sq. ft. with effect from 04.01.2008 at a rent of Rs.75,000/- per month with 15% increase every three years. Evidence is also stated to have been led of letting of flat No.503, 5th Floor, Kailash Building, 26, Kasturba Gandhi Marg, Connaught Place, New Delhi on 15th April, 2009 at a rent of Rs.71,000/- per month and of letting of Flat No.F-56, First Floor, ad- measuring 430 sq. ft., Bhagat Singh Market, New Delhi at a rent of Rs.39,000/- per month with effect from 4th October, 2007.

25. The first of the aforesaid evidences is of letting of an ATM space and which cannot possibly reflect the letting value of the suit premises. Judicial notice can be taken of the fact that small spaces otherwise not habitable and only for the purposes of installation of an ATM and to enable a single person to operate the ATM are taken at rent much higher than the prevalent rent for larger premises in the same area/building, depending upon accessibility thereof to the patrons. Thus, the letting value of an ATM space cannot be indicative of the prevalent rent for a larger office space. Similarly no comparison can be drawn between letting out in a multistoried commercial building in Connaught place and letting out of the subject premises. Shaheed Bhagat Singh Marg, though not far away from Connaught Place, cannot be treated at par with Connaught Place. Connaught Place is identified world over as the Central Business District of the capital city of New Delhi, address of office wherein is much sought after. The same cannot be said of

Shaheed Bhagat Singh Marg, which is a residential-cum-commercial locality.

26. The counsel for the defendant also has drawn attention to the cross- examination of the witnesses of the plaintiff in this regard.

27. None of the evidences led by the plaintiff qua the rate of mesne profits can thus be said to be of letting value at the contemporaneous time of the subject premises. I have in fact during the hearing enquired from the counsel for the plaintiff as to why the plaintiff has not led evidence of letting at the contemporaneous time of other portions of the same building. The plaintiff has surprisingly also not led evidence of the rate at which the subject premises were let out after the same were vacated by the defendant. The only inference is that the other portions of the building of which the subject premises were a part, were not fetching as high a rent as of which evidence has been led by the plaintiff.

28. The counsel for the plaintiff has also argued that the plaintiff is entitled to mesne profits/damages for an area of 5,800 sq. ft. and not for an area of 4,480 sq. ft. Attention in this regard is invited to the correspondence between the parties.

29. The aforesaid contention cannot be accepted. It is not the plea of the plaintiff in the plaint. The plaintiff, in the plaint has claimed mesne profits/damages for use and occupation describing the area of the premises as 4480 sq. ft. That is the area of the premises mentioned in the lease deed between the parties also. The plaintiff, at this stage, cannot be permitted to prove or contend contrary to its pleadings.

30. I have in Udayan Sinha Vs. Fertilizers & Chemicals Travoncore Ltd. 2016 SCC OnLine Delhi 3247 and referring to (i) International Pvt. Ltd. Vs. Saraswati Industrial Syndicate 1992 (2) RCR 6; (ii) M.R. Sahni Vs. Doris Randhawa AIR 2008 Del. 110; (iii) Consep India Pvt. Ltd. Vs. CEPCO Industries Pvt. Ltd. MANU/DE/0700/2010; (iv) P.E.C. Limited Vs. Samir Prakash MANU/DE/2781/2011; (v) Water and Power Consultancy Services (India) Ltd. Vs. Renu Gupta MANU/DE/2738/2012; and, (vi) Inder Sain Bedi Vs. M/s Chopra Electricals MANU/DE/5155/2012, held that computation of mesne profits always entails some element of genuine, intelligent and honest guess work and that it is virtually impossible to get evidence to prove the exact rate of mesne profits as rent is dependent on a large number of variable factors like flow of space, lighting, ventilation, location, access, parking, fixtures, fittings, amenities, design etc. Observing so and drawing from my experience as a citizen of Delhi and having practiced primarily in the field of real estate and landlord-tenant disputes, I have therein and in Madhvi Singh supra (SLP(C) No.32071/2016 whereagainst was dismissed on 11th November, 2016) determined mesne profits. Though both Udayan Sinha and Madhvi Singh supra pertain to residential premises but the principles thereof would apply to commercial premises as well.

31. Applying the aforesaid principles, I am of the view that the plaintiff is entitled to mesne profits / damages for use and occupation inclusive of interest on arrears thereof at the rate of Rs.2,50,000/- per month with effect from 1st September, 2006 to 31st August, 2009 and at the rate of Rs.2,75,000/- with effect from 1st September, 2009 till 30th July, 2011.

32. A decree is accordingly passed in favour of the plaintiff and against the defendant, of recovery of mesne profits / damages for use and occupation inclusive of interest on arrears thereof, computed at the rate of Rs.2,50,000/- per month with effect from 1st September, 2006 to 31st August, 2009 and at the rate of Rs.2,75,000/- per month with effect from 1st September, 2009 till 30th July, 2011, minus the amounts already paid by the plaintiff to the defendant.

33. If the decretal amount is not paid within three months herefrom, the same shall also incur interest @ 9% per annum from the date of decree till the date of payment.

34. The plaintiff shall also be entitled to costs of the suit.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

MARCH 23, 2017 „gsr/bs‟..

(corrected & released on 12th May, 2017)