Delhi High Court
Dena Bank vs Kamlesh Rani (Since Deceased) Thr ... on 8 February, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 2nd February, 2018
Date of decision :8th February, 2018
+ RFA 529/2017
DENA BANK ..... Appellant
Through: Mr. Arun Aggarwal, Advocate.
versus
KAMLESH RANI (SINCE DECEASED)
THR LRS & ORS. ..... Respondents
Through: Mr. Jagdish Chandra, Advocate.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. This is an appeal arising out of the impugned judgment dated 26 th
December, 2016 by which the suit for possession and mesne profits has been
decreed in the following terms.
"In the result, the suit is decreed in favour of
the plaintiff and against the defendant for
recovery on the following amounts:-
(i) Mesne profits for the period 1.1.2008 till
the handing over of the actual possession of
the suit property i.e. 25.3.2013 @ Rs.
1,75,000/- p.m.
(ii) The Defendant shall be entitled to adjust
the amount already paid to the Plaintiff in
terms of the order dated 02.09.2013.
(iii) The plaintiff shall also be entitled to
interest from the date of the institution of the
suit till the date of the decree @ 9% p.a., and
thereafter, the plaintiff shall be entitled to
future interest on the principal sum @ 6%
per annum till the date of realization.
Plaintiff is liable to pay ad-valorem
court fees on the total amount, including the
amount paid during the pendency of the suit,
before the decree is prepared.
No order as to costs."
2. Admittedly, the possession has been handed over to
Respondents/Plaintiffs (hereinafter, 'Plaintiffs') on 25th March, 2013. The
only question, on which submissions have been heard, is in relation to
quantum of mesne profits which has been awarded. Appellant-Bank was the
Defendant in the suit (hereinafter, 'Defendant') filed by the Plaintiffs. Case
of Plaintiff No. 1 is that she is the absolute owner of the property bearing
No.GL-16A, Jail Road, Hari Nagar, New Delhi - 110064 admeasuring 320
sq. yds. (hereinafter, 'suit property').
3. The Defendant was inducted as lessee on 15th August, 1989 in respect
of the portion of the ground floor of the property in area admeasuring 2086
sq. ft. approximately. Lease deed was duly registered and executed on 22nd
February, 2003. Monthly rent was agreed for a period from 1st November
2002 to 31st October 2007 at a monthly rent of Rs.41,360/-. Lease was
terminated as per the terms and conditions of the lease deed. Accordingly,
the Plaintiff sought Rs.2 Lakhs per month as damages for unlawful
occupation of the suit property. Plaintiff sought possession and arrears of
rent as also damages for use and occupation. On 14 th September 2009, the
suit was decreed for possession in favour of Plaintiff and accordingly
possession was handed over on 25th March, 2013. Admittedly, rent was paid
upto 31st March, 2013. Plaintiff led evidence of PW-1 Shri Ajay Kumar
Gambhir who exhibited the following documents.
i. Ex.PW-1/1, site plan
ii. Ex.PW-1/2, lease deed dated 22nd February 2003.
iii. Ex.PW-1/3, legal notice dated 7th June, 2007.
iv. Ex.PW-1/11, reply to legal notice dated 10th July, 2007.
4. Plaintiff claimed damages @ Rs.2 Lakhs per month. In support of her
claim of Rs.2 Lakhs, the Plaintiff relied upon the lease deed dated 13th
March, 2003 in respect of a property in the vicinity of the suit property being
Ex.PW-3/1. The said exhibit was relied upon for showing the rent of
Rs.1,65,000/- for property with carpet area of 1152 sq. feet during the period
from 13th March, 2008 to 12th March, 2014.
5. On the other hand, Defendant adduced evidence and placed on record
the lease deed dated 9th June 1994 to submit that rent of Rs.7 per sq. ft. was
being charged.
6. Trial Court, relying on Atma Ram Properties (P) Ltd v. Federal
Motors Pvt. Ltd (2005) 1 SCC 705, assessed the damages. Relevant extracts
of the findings of the Trial Court are set out below.
"22. It is noteworthy Defendant Bank itself
executed a lease deed on 4.4.2012, in respect
of 1986 sq. Ft. carpet area, the monthly rent
in respect of the said premises being fixed at
Rs.2,58,180/- pm. The said premises is
admittedly situated 500 mts from the suit
property. Considering the proximity of the
two properties, the rent paid for the said
property can be a relevant factor to
determine the rental for the suit property
during the relevant period. Similarly, the
property situated right across the road, the
Lease Deed dated 13.03.2008, in respect of
which is exhibited as Ex.PW3/1 for an area
admeasuring 1152 sq. ft, deriving a rent of
Rs.1,30,000/- per month exclusive of
maintenance of Rs.35,000/- per month would
also be helpful in arriving at the value of
mesne profits.
23. The Defendant Bank after leaving the suit
property took a property in proximity of the
suit property at the rental of Rs.2,58,180/-
pm in April, 2012 respect of a lesser area
(1986 sq. ft.), however, allegedly having a
better location and the Plaintiff has also
placed reliance thereupon. Accordingly,
calculating the rentals in respect of 2068 sq.
ft. works out to Rs.2,68,840/-. However, had
the said lease deed been executed in 2008,
then taking into account the inflation/
location of the suit property/ escalation in
rentals into account, the interest of justice
would be met if the rental for the suit
property is fixed at Rs.1,75,000/- pm from
the date of termination of the lease i.e.
1.1.2008 till the handing over of the actual
possession of the suit property i.e. 25.3.2013.
The Defendant shall be entitled to adjust the
amount already paid to the Plaintiff in terms
of the order dated 02.09.2013. Regarding
interest on mesne proifits, Section 2(12) of
the CPC which defines mesne profits, itself
includes interest."
7. Thus, the Trial Court determined that from the evidence on record,
Rs.1,75,000/- per month would be equitable damages that would be payable
for use and occupation of the suit property.
8. Learned counsel for Defendant submits that in compliance of order
dated 31st May 2017 and thereafter on 1st September 2017 the entire decretal
amount of Rs.1,40,82,351.42 stands deposited. The breakup of the said
decretal amount is as under:
Principal amount awarded Rs.1,75,000/- per
month
LESS Already paid Rs.51,700/- per month
Net amount (Rs.1,75,000/- Rs.1,23,300/- per
Rs.51,700/-) month
w.e.f. 01.01.2008 to Rs.77,67,900/-
25.03.2013: 63 months x
Rs.1,23,300/-
Int. on Rs.77,67,900/- 8y: Rs.55,92,888.6 Aggregate interest:
w.e.f. 31.05.2008 (date of + Rs.59,92,243.18
institution) to 26.12.2016 6m: Rs.3,49,555.5
(date of order): (8 years 6 +
months 26 days) @ 9% pa 26d: Rs.49,799.68
simple on Rs.77,67,900/-
Future interest on 8m: Rs.3,10,716/- Aggregate future
Rs.77,67,900/- w.e.f. + interest till deposit :
27.12.2016 till 04.09.2017: 9d: Rs.11,492.24 Rs.3,22,208.24
(8 months 9 days) @ 6%
per annum simple on
Rs.77,67,900/-
Net amount required to be Rs.1,40,82.351.42
deposited
9. The main ground of challenge by Defendant is that the use and
occupation charges having been determined after taking into account
inflation, location of the suit property and escalation in rentals, interest
charged @ 9% per annum, is on the higher side. The damages having being
fixed at almost 3.5 times of the admitted rent, the interest @ 9% per annum
is highly inequitable. Defendant submits that it being a financial institution
and that it has to pay from the public money, the enhanced rent along with
interest @ 9% per annum has resulted in double profit to the Plaintiff which
ought not to be permitted. He submits that interest amount deserved to be
scaled down.
10. Learned counsel for Plaintiff, on the other hand, submits that the
Plaintiff has been deprived of the entire sum of money which constituted use
and occupation charges for the period of almost 5 years and the impugned
judgment is liable to be upheld. It is Plaintiff's submission that the Plaintiff
having been deprived of the money is entitled to interest.
11. The Court has perused the evidence on record as also the impugned
judgment. Trial Court has given cogent reasons for fixing Rs.1.75 Lakhs
and the same does not warrant any interference. However, as far as interest
amount is concerned, the Trial Court having taken into consideration the
inflation, location of the suit property and escalation in rentals during the
area, the amount of interest appears to be on the higher side. Moreover, the
agreement, which has been considered by the Trial Court for fixing the use
and occupation charges @ Rs.1.75 Lakhs, is a rental agreement of April,
2012. The period involved in the present case is from 2008 to 2013.
12. In the facts and circumstances of the present case and the overall
evidence on record, the impugned decree is modified to the extent that
instead of interest @ 9% per annum, Plaintiff is granted interest @ 5% per
annum.
13. The amount lying deposited in this Court has also now borne interest
and the total amount lying as on date is Rs.1,42,46,322.42. The decree is
accordingly modified as under:
(1) Plaintiff is granted mesne profit for the period 1st January 2008 till
handing over the actual possession i.e. 25th March, 2013 of Rs.1,75,000/-
per month.
(2) Defendant shall be entitled to adjust the amount, if any, already paid
to the Plaintiff in terms of order dated 2nd September 2013.
(3) Plaintiff would be entitled to interest till the date of decree @ 5% per
annum and thereafter Plaintiff shall be entitled to future simple interest
till 4th September 2017 @ 6% per annum.
Principal amount awarded Rs.1,75,000/- per
month
LESS Already paid Rs.51,700/- per month
Net amount (Rs.1,75,000/- Rs.1,23,300/- per
Rs.51,700/-) month
w.e.f. 01.01.2008 to Rs.77,67,900/-
25.03.2013: 63 months x
Rs.1,23,300/-
Int. on Rs.77,67,900/- 8y: Rs.31,07,160 Aggregate interest:
w.e.f. 31.05.2008 (date of + Rs.33,28,545.15
institution) to 26.12.2016 6m: Rs.1,94,197.5
(date of order): (8 years 6 +
months 26 days) @ 9% pa 26d: Rs.27,187
simple on Rs.77,67,900/-
Future interest on 8m: Rs.3,10,716/- Aggregate future
Rs.77,67,900/- w.e.f. + interest till deposit :
27.12.2016 till 04.09.2017: 9d: Rs.11,492.24 Rs.3,22,208.24
(8 months 9 days) @ 6%
per annum simple on
Rs.77,67,900/-
Net amount required to be Rs.1,14,18,653.39
deposited
14. The amount of Rs. 1,14,18,654/- is directed to be released in favour of
the Plaintiff. The remaining amount shall be released in favour of the
Defendant.
15. List before the Registrar on 26th February 2018 for handing over the
demand drafts in favour of the parties. Authorized representatives on behalf
of both the parties shall be present to collect the said payments.
16. Appeal is disposed of in the above terms.
PRATHIBA M. SINGH, J.
Judge
FEBRUARY 08, 2018/dk
