Delhi High Court
M/S Eureka Forbes Limited vs M/S Devansh Real Estate Pvt. Ltd. on 1 June, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 28th May, 2018
Date of Decision: 1st June, 2018
+ RFA 40/2017 & CM APPLs. 1305/2017, 16086/2017
M/S EUREKA FORBES LIMITED ..... Appellant
Through: Mr. Gaurav Kr. Singh & Ms. Geetika
Matta, Advocates.
versus
M/S DEVANSH REAL ESTATE PVT. LTD. ..... Respondent
Through: Mr. Deepak Gupta & Mr. Kuber Giri,
Advocates (M-9811999978).
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. A short issue as to the mesne profits/ use and occupation charges
payable by the Appellant/Defendant (hereinafter, „Defendant‟) survives in
the present appeal.
2. Respondent/Plaintiff - M/s Devansh Real Estate Pvt. Ltd. (hereinafter
„Plaintiff‟) filed a suit against the Defendant - M/s Eureka Forbes Limited
seeking physical vacant possession of the property bearing No. 4/12, Asaf
Ali Road, near Delhi Gate, New Delhi-110002 (hereinafter, „suit property‟).
The Plaintiff claimed that it had acquired title to the same as per sale deed
dated 22nd September, 2010.
3. The Defendant was inducted as a tenant in a specified part of the
property admeasuring 1200 Sq. Ft. on the rear side of the Fourth Floor of the
building No.4/12, Asaf Ali Road, New Delhi. A Leave and Licence
Agreement had been entered into between erstwhile owners and the
Defendant dated 12th January, 2005 on a monthly rent of Rs.22,000/-, apart
from charges for the use of the elevator, maintenance etc. The Defendant
had become a tenant w.e.f. 1st July 2004. The agreement was for a period of
9 years commencing from 1st July, 2004 to 30th June, 2013. The agreement,
however, was unregistered.
4. According to the Plaintiff, since the lease deed was unregistered, the
Defendant was a month to month tenant. The last paid rent by the
Defendant was Rs. 34,375/- per month along with other contractual charges.
On 4th March, 2011, the Plaintiff issued a termination notice in respect of the
suit property and called upon the Defendant to hand over vacant, peaceful
possession of the property. The Plaintiff also thereafter filed the subject suit
seeking actual physical possession, recovery of rent/user and other charges
for the period 1st October, 2010 to 31st March, 2011 as also damages/mesne
profits w.e.f. 1st April, 2011 along with interest.
5. The Defendant initially challenged the rights of the Plaintiff in the suit
property. However, thereafter the Defendant vacated the property and
handed over possession on 3rd April, 2013. The suit continued in respect of
mesne profits and the same was decreed as under:-
"In view of my findings on the various issues, I hereby
hold that the Plaintiff is entitled for the mesne profit
from the defendant @ Rs. 150 per square feet per
month for the period 01.04.2011 till 02.04.2013
alongwith usufruct @ Rs. 3,500/- per month for the
said period alongwith interest @ 8% per annum. The
interest is also payable by the defendant to the plaintiff
on the admitted usufruct paid by the defendant vide
cheque dated 08.10.2014 at the contractual rate of Rs.
3,500/- per month. It is clarified that this is subject to
adjustment in respect of the admitted amount already
paid by the defendant during the trial".
6. The present Appeal has been preferred against the said order. On 12 th
January, 2017, this Court, while issuing notice in this Appeal directed the
stay of the impugned judgment and decree, subject to the Defendant
depositing the entire decretal amount with up to date interest within four
weeks. There was some delay and condonation was sought by the
Defendant. Thereafter, on 24th August, 2017, it was represented to the
Court that the Defendant has complied with the condition imposed for stay
and has deposited the entire decretal amount. However, repeatedly it was
the stand of the Plaintiff that the Defendant had not deposited the entire
decretal amount.
7. On 6th April, 2018, the Registry was directed to calculate as to
whether the decretal amount was deposited fully and whether the court fee
was also deposited. The Registry put up a report which revealed that there
was a huge shortfall in the amount deposited. Order dated 21st May, 2018,
records as under:-
"Report of the Registry has been received. The
Court fee filed is deficient by Rs.8,999/- The decretal
amount is also not deposited fully and as per the
Registry's report shortfall is to the tune of
Rs.7,33,818.29/-. Interest on shortfall @ of Rs.160.83
per day till date of deposit is also liable to be paid as
per the Registry's report. Counsel for Respondent has
repeatedly pointed this out but Appellant failed to take
any steps.
Today, adjournment is sought on the ground that
counsel is unwell.
Last opportunity is granted to the Appellant to take
steps failing which appropriate orders shall be passed.
An authorized representative of the Appellant
company be present on 28th May, 2018 at 2.15 PM".
8. On 28th May 2018, , Mr. L.P. Joshi, Regional Head of the Defendant
Company appeared on behalf of the Defendant and undertook to deposit the
entire shortfall in the decretal amount and the court fee within two weeks.
The Court has heard the submissions of the parties, and the only issue
remaining in the appeal is of mesne profits. The Trial Court has taken into
consideration various lease deeds placed on record by the Plaintiff i.e. Ex.
PW1/16 to Ex. PW1/20. The description of these lease deeds is set out
herein below:
Ex. PW1/16 relates to the Ground Floor and basement, 4/10, "OPG
House", Asaf Ali Road, New Delhi-110002. The rent payable as per
this agreement is Rs. 5,45,000/- p.m. enhanceable by 15 per cent after
every three years for the period 9th February 2009, onwards.
Ex. PW1/17 lease deed in respect of 2450 Sq. Ft. of the Ground Floor
of the building situated on Asaf Ali Road, New Delhi on a monthly
rent of Rs.3,96,900/- plus service tax for the period 9th May, 2013 to
8th May, 2018.
Ex. PW1/18 in respect of property bearing no. 4/24A, Asaf Ali Road,
New Delhi for a monthly lease of Rs. 9,10,000/- with a Lock-In-
Period of three years for the Ground Floor bearing 3498 Sq. Ft.
Ex. PW1/19 in respect of the Ground Floor and basement
(admeasuring 3021 and 3425 Sq. Ft. ) at 30/31A , Asaf Ali Road,
New Delhi for a period of five years commencing from 10 th August,
2007 at a rent of Rs. 3,86,760/-.
Ex. PW1/20 Ground Floor plus basement admeasuring 2555 + 2482
Sq. Ft. at Jeevan Vikas Building, Asaf Ali Road, New Delhi at a
monthly rent of Rs. 3,79,600/- plus service tax for five years
commencing from 1st July, 2007.
9. On the basis of these documents, the Trial Court recorded that the
prevailing rent in the vicinity for the period of 2008-09 was in the range of
Rs.115/- per sq. ft. to Rs.260/- per sq. ft. Moreover, Mr. S.S. Bisht,
Representative of the Defendant Company admitted as under:-
"I have never made any inquiry to ascertain the
prevailing rate of rent of the premises of Asif Ali Road
between Delhi Gate and Turkman Gate. The rate of Rs.
150/- per square feet per month may be prevailing today
in that locality but at the time we were in occupation of
the premises in suit we were paying the contractual rate
of rent to the owners".
Thus, the Defendant's witness did not deny that the rate of Rs.150 sq. ft.
could be the prevailing market rate.
10. In view of the evidence on record, it is clear that the amount of
Rs.150/- fixed by the Trial Court is perfectly justified. The impugned
judgment does not warrant any interference. The judgment and decree of
the Trial Court is upheld.
11. The decretal amount already deposited and the amount which is
now to be deposited within two weeks as undertaken by the Defendant's
senior official in paragraph 8 above, by the Defendant be released to the
Plaintiff by 10th July, 2018.
12. The Appeal is dismissed. In the facts and circumstances of this
case, there should be no order as to costs. All pending applications also
stand disposed of.
13. List before the Registrar General on 15th July, 2018 for checking
compliance of the directions.
PRATHIBA M. SINGH
JUDGE
JUNE 01, 2018/p
