International College of Financial Planning Ltd v. Kanwaljeet Kaur Kochar

1. By the judgment and decree impugned in tlie above noted appeals, trial court has disposed offour suits filed by the respondents. Facts are similar, inasmuch as, common evidence had been led before the trial court thus, the appeals are disposed oftogether.

2. Arguments heard and the entire material placed on record has bee perused.

3. Trial court has awarded mesne profits @?150/- (Rupees On Hundred Fifty Only) with effect from termination oftenancy, that is, 11 November, 2010 till one month beyond handing over the possession RFA370/2012 Page2of[9] x>: •-Y. Court, together with damages of?1 lac towards repairs ineach case; pendent elite and future interest @ 8% per annum, besides costs ofthe proceedings have also been granted.

4. Briefly stated, facts are that respondents had filed suits for possession and mesne profits against the appellant in respect of their respective premises bearing FlatNos. 311, 312, 313 &314, 3"* Floor, Naurang House, 21, Kasturba Gandhi Marg, New Delhi, which were leased out by them to appellant vide separate registered lease deed(s) all dated 12^^ July, 2004. Lease was made effective from 6^^ June, 2004 and was for aperiod ofthree years. Appellant was given option to renew the lease for a further two terms of three years each on same terms and conditions but subject to 20% escalation in the prevalent rentals for every renewed term. It was specifically provided in the lease deed that with every renewal parties shall execute a fresh lease deed duly registered with the office of Sub-Registrar. Lease period in terms of initial lease deed expired on 5^ June, 2007. Thereafter, no fi-esh lease deed was got registered in the office of Sub enhanced rent and the tenancy became on month-to-month basis. All the four flats were adjacent to each other. Respondents had given permission to RFA 370/2012 Pages of[9] J 'X \ the appellant to break the intervening walls as also to carry outrenovations to suit its requirement but on its own costs. Respondents terminated the monthly tenancy by issuing notice dated 11^November, 2010 thereby called upon the appellant to vacate the suit premises. Despite service ofnotice suit premises were not vacated, hence, the suits for possession and mesne profits @?250 (Rupees Two Hundred Fifty Only) per square feet per month were filed.

5. As regards possession is concerned, decrees were passed bythe trial court in three suits. Appellant preferred appeals in this Court. However, subsequently appellant decided tovacate the suit premises and deposited the keys in Trial Court since respondents did notaccept possession. As perthe respondents suit premises were indamaged condition. Local Commissioner was appointed who gave his report, relevant portions whereof reads as under:-

removed. It was an open hall. The clear segregation and demarcation of flats are missing because internal walls are removed.

5. That the hall (five flats) was totally damaged as it was mishandled or somebody intentionally damaged theproperty.

6. That I found flooring has been completely damaged RFA 370/2012 Page 4 of[9] broken at many places. At some place tile flooring has been removed also and kept in pieces. Bathroom of flat no. 311 has been completed broken and it is being used as storage. In flats Nos. 313-314 bathroom fittings are completely broken, tiles damaged, pipeline has been broken in such a way that they cannot be used now. Electrical wiring and switches has been completely taken offin very rough manner an al the connections have been shifted at one place with one control. False ceiling has been ripped apart in a very unprofessional marmer due to which structure damage has been done to the roof. Glass panes have been broken, even the main glass has also been broken at places Due to the damage caused to the property, I suggest it will take more than 75 days to rectify the above defects andto bring the whole premises intousablespace.

7. That order/direction dated 16.09.2011 is armexed along with this report as Annexure *A' and original proceeding sheet dated 17,09.2011 is also annexed as Annexure 'B'. Note: Photographs and two CDs arefiled in Suit No. 99/2011."

6. Thereafter, respondent took over the possession of the suit property by collecting keys. It may be noted that appellant withdrew the appeals. Only question involved in these appeals is with regard to the quantum of mesne profits,

7. Appellant as well as respondents had led evidence with regard to the prevalent market rate ofrent in respect ofthe suit premises as also the extent of damages. Trial court scrutinized the evidence led by the parties meticulously and has come to the conclusion that mesne profits @ fl50/- RFA 370/2012 Page 5 of[9] -••H. J V / (Rupees One Hundred Fifty Only) per square feet would be just and proper compensation. As regards damages, trial court has returned a finding that the claim of lacs each was excessive even though architect's report had been produced by the respondents. As per trial court, reasonable expenses towards electrification, re-plastering of the walls, tiling and sanitary work etc.would be about ? 1 lac in respect of eachof the premises.

8. Learned counsel for the appellant has vehemently contended that rate of rent in respect of similarly situated premises in the same area was much less than ?150/- (Rupees One Hundred Fifty Only) per square feet. As per the reports of Government approved valuers rent ofthe suit premises was around ^75/- (Rupees Seventy Five Only) per square feet only. According to two registered lease agreements, photocopies of certified copies whereof were annexed with the affidavit of DWl as ExDWl/E, collectively rent of similarly situated premises in Connaught Place area during the period November, 2010- January, 2011 was ?30/- (Rupees Thirty Only) per square feet and in January, 2012 it was ?35/- (Rupees Thirty Five Only) per square feet. Despite above evidence produced by the appellant, trial court has committed agrave error in accepting the certified copy ofLease Agreement dated 22*"^ April, 2010 (Ex. PWl/7) of the plaintiffto determine the mesne Page 6 of[9] profits at the rate of?150/- (Rupees One Hundred Fifty Only) per square feet. Trial court has also overlooked the fact that Ex. PWl/7 involves a folly furnished premises, inasmuch as, the lessor had agreed to bear the maintenance charges etc. Accordingly, rent @?200/- (Rupees Two Hundred Only) per square feet as disclosed in Ex. PWl/7 could not have been made the basis for fixing the market rate of rent in respect of smt premises. Ido not fmd any force in this contention ofthe learned counsel. Ex.PWl/7 is aLease Agreement in respect of aflat in the same building.A-here the suit premises are situated. The lease agreement is in respect of NaurangHouse, KasturbaGandhi Marg.New Delhi, wherethesuitpremises are situated. Thus, Ex. PWl/7 is best evidence to assess the market rate of rent in respect ofthe suit premises and in my view trial court has rightly accepted the same. It is not the case that trial court has fixed same rate as has been mentioned in Ex. PWl/7. The rate of rent in respect of the suit premises has been taken much lower than that mentioned in Ex. PWl/7 and it appears that the lesser,rate has been fixed keeping in mind that premises, involved in Ex. PWl/7, was a furnished accommodation. As regards the valuation reports, same do not indicate prevalent market rate ofrent in the area. Valuers have assessed the market value ofthe flats and have taken 4% \ \o / of the total value as fair/standard rent. Valuers have not taken into consideration the •actual prevalent market rate of rent in respect of the premises in the same building or for that matter similarly situated premises. Copies of the registered lease deed placed on record by the appellant are in respect of different buildings and have rightly been not preferred as against Ex. PWl/7, inasmuch as, a Family Trust appears to had leased out its properties to the family members. Accordingly, contentions of learned counsel for the appellant on this point are rejected.

9. Learned counsel has next contended that trial court has erred in awarding damages to the tune of ^1 lac to each of the respondents. As per the lease deeds, appellant was permitted to break the intervening walls between the flats as also to carry outrenovations in the suitpremises to suit its requirements. Accordingly, appellant had broken the intervening walls and was using theentire area as a hall wherein partitions were made. While vacating the suit premises partitions were removed. In terms of the lease deed, appellant was not required to handover the suit premises in the same condition in which same were handed over to appellant, thus, appellant was not required to pay any damages to respondents. Ido not find any force in this contention ofthe learned counsel either. Trial court had appointed the Page 8 of[9] V- 4-^ r Local Commissioner to visit the suit premises to verify the extent of damage. Report ofthe Local Commissioner has remained unchallenged as no objections to the said report were filed by the appellant. A perusal of report of the Local Commissioner makes it clear that it is not the case of only removal of intervening walls but that apart extensive damage has been caused to the suit premises, inasmuch as, flooring and bathrooms were broken electrical wiring, switches etc. were removed and false ceiling was also ripped apart. In view ofthe overwhelming evidence having come on.record trial court has rightly awarded ^1 lac each to the respondents and no fault can befound with such anapproach.

10. For the foregoing reasons, I do not fmd any material irregularity, illegality or perversity in the impugned judgment and decree, thus, appeals are dismissed. No order as to costs. Miscellaneous applications are disposed of as infructuous. APmL 25,2013 rb A.K. PATHAK, J. Page 9 of[9]