Delhi High Court
Hindustan Petroleum Corporation ... vs Ajay Bhatia on 9 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 13/2019
% 9th January, 2019
HINDUSTAN PETROLEUM CORPORATION LTD ..... Appellant
Through: Mr. Rajat Navet, Mr. Mukul
Gupta and Mr. Shashi Kant,
Advocates (Mobile No.
9811177237).
versus
AJAY BHATIA ..... Respondent
Through: Mr. M.M. Kalra and Ms. Sonali
Kumar, Advocates (Mobile No.
9810135477).
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CAVEAT No. 8/2019
1. Since counsel for the caveator has entered appearance, the
caveat stands discharged.
C.M. Appl. No. 544-46/2019 (for exemptions)
2. Exemptions allowed, subject to just exceptions.
C.Ms. stand disposed of.
RFA 13/2019 and C.M. Appl. No. 543/2019 (for stay)
3. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit
impugning the Judgment of the trial court dated 20.08.2018 by which
the trial court has decreed the suit filed by the respondent/plaintiff for
mesne profits. The appellant/defendant was a tenant in the suit
premises and the respondent/plaintiff was the owner/landlord. The
suit premises is a plot of land admeasuring 9700 sq. feet situated at 4/4
Azad Pur, G.T. Road, Delhi.
4. Ld. counsel for the appellant/defendant does not press the
rate of mesne profits awarded by the trial court but only argues that the
mesne profits are liable to be paid only once a tenancy is terminated,
and only after the termination of tenancy, a tenant becomes an illegal
occupant who is then liable to pay mesne profits under Section 2(12)
CPC, and therefore the trial court has erred in decreeing the mesne
profits from June, 2003 when the monthly tenancy was terminated
only w.e.f. 28.02.2006. Therefore, the issue to be addressed by this
Court is as to what is the date of termination of tenancy, as only from
such date, the mesne profits would be liable to be paid for.
5. The admitted facts of the case are that there was a
registered Lease Deed originally entered into between the predecessor
of the respondent/plaintiff and the predecessor of the
appellant/defendant, M/s Caltex (India) Limited. As per the plaint,
this Lease Deed dated 15.10.1970 was for a period of ten years.
Admittedly, no other lease was entered into between the parties.
Respondent/plaintiff is the successor of the original owner of the suit
property, and the original owner was also the respondent's/plaintiff's
grandfather. After the death of the grandfather of the
respondent/plaintiff, the grandmother became the owner/landlady and
subsequently the rent was paid to her. The grandmother of the
respondent/plaintiff died on 22.11.1993 leaving behind her Will dated
05.06.1989 in favour of the respondent/plaintiff, and which was
probated by the respondent/plaintiff, whereby the respondent/plaintiff
became the owner/landlord of the suit property.
6. A reading of the suit plaint shows that except stating that
the original lease was for a period of ten years, and that the
respondent/plaintiff has only received damages upto June, 2003, it is
not stated as to how the tenancy would stand terminated as on June,
2003 especially when the tenancy by efflux of time had come to an
end 23 years earlier. In fact and admittedly, a Legal Notice dated
31.01.2006 was issued by the respondent/plaintiff to the
appellant/defendant, and by this Notice, the respondent/plaintiff had
terminated the monthly tenancy of the appellant/defendant w.e.f.
28.02.2006. The paras 9-14 along with the last para of this notice are
relevant, and these paras read as under:-
"9. That the period of lease has expired and my client has been making
repeated request to you to hand over the vacant possession of the said piece
of land.
10. That instead of vacating the said plot of land, you have been
sending the rent cheques to my client by means of courier to my client.
My client has never accepted the cheques sent by you. My client had
received the rent/damages upto June 2003.
11. That after the expiry of the lease, you are liable to pay the damages
by way of mesne profits to my client for unauthorized occupation of the
piece of land, since your tenancy had come to an end.
12. That be it as it may be my client does not wish to keep you as his
tenant and has instructed me to terminate your tenancy in respect of the
said plot of land.
13. That your tenancy is governed by English Calendar. It starts from
the first day of the month and lasts on the last day of the month.
14. That you are liable to pay damages by way of mesne profits after
the expiry of the lease i.e. from June, 2003 @ Rs.50,000/- per month to my
client till you vacate the land.
My client has instructed me to terminate your tenancy and I,
therefore serve you with this notice of terminating your tenancy in respect
of property bearing no. 4/4, Azadpur, G.T. Road, Delhi and to inform you
that your monthly tenancy, any, will come to an end on the expiry of 28 th
February, 2006. I also call upon you to hand over the peaceful vacant
possession of the land measuring 9700 sq. feet at 4/4, Azadpur, G.T. Road,
Delhi to my client on the expiry of your tenancy and remove all structures,
building, tanks, fixtures, fittings, equipment, machinery, pumps,
underground tanks and all other properties belonging to you within one
month from the date of expiry of the lease including office and trade
fixtures, fittings, counter's partitions, benches, shelfs, lockers, gas and
electrical fittings of any nature and bring back the said land into its original
condition and hand over the peaceful possession of the same to my client,
failing which my client shall file a suit for possession of the said property
against you in the competent court of law and shall also hold you
responsible for all the costs and consequences.
You are also called upon to make the payment of mesne profits
@Rs.50,000/-per month from July, 2003 up to 28.2.2006 to my client,
failing which my client shall also sue for recovery of the said amount and
hold you responsible for the same.
Copy kept,
Thanking you,
Yours faithfully,
(Sd/-)
(M.M. Kalra)
Advocate"
(Underlining added)
7. A reading of the aforesaid paras of the legal notice makes
it clear that the tenancy is admittedly month to month and the monthly
tenancy was never terminated before sending of the Legal Notice
dated 31.01.2006. It is specifically stated in the last para of the Legal
Notice dated 31.01.2006 that the monthly tenancy of the
appellant/defendant will come to an end on 28.02.2006 and therefore,
the appellant/defendant would only become an illegal occupant from
01.03.2006, and not from an earlier period when the
appellant/defendant remained as a monthly tenant. The monthly
tenancy can only be terminated by a notice under Section 106 of the
Transfer of Property Act, 1882.
8. Once the appellant/defendant became an illegal occupant
only from 01.03.2006, the trial court therefore in the opinion of this
Court has clearly erred in granting mesne profits from July, 2003 till
the vacation of the suit property. Appellant/defendant is only
therefore liable to pay mesne profits as decreed by the trial court only
from 01.03.2006 and not from July, 2003.
9. In view of the aforesaid discussion, this appeal is partially
allowed by holding that the impugned judgment and decree will stand
modified whereby the mesne profits will be payable not from July,
2003 but from 01.03.2006. Rest of the judgment will stand as it is.
10. I may also note that the Ld. counsel for the
respondent/plaintiff states that the respondent/plaintiff intends to file
an appeal to seek increase in the quantum of damages, and if such an
appeal is filed, the same will be decided in accordance with law.
10. The appeal is disposed of accordingly.
JANUARY 09, 2019 VALMIKI J. MEHTA, J
AK
