Full Text
HIGH COURT OF DELHI
M/S DEVANSH REAL ESTATE PVT. LTD.
4/12, ASAF ALI ROAD, NEW DELHI-110002 ..... Plaintiff
Through: Ms. Jaya Goyal, Mr. Jai Sahai Enlaw, Mr. Ashutosh R, Advocates.
JUDGMENT
1. PUNJAB NATIONAL BANK HEAD OFFICE PLOT NO.4, SECTOR-10, DWARKA, NEW DELHI-110075 CORPORATE OFFICE 11, HEMANT BASU SARANI, KOLKATA-700001..... Defendant Through: None. CORAM: HON’BLE MS.
JUSTICE NEENA BANSAL KRISHNA J U D G E M E NT NEENA BANSAL KRISHNA, J
1. The plaintiff has filed the present suit for Possession along with arrears of mesne profits and occupation.
2. The facts in brief are that the plaintiff, M/s. Devansh Real Estate Private Limited acquired suit property bearing No. X/2538, commonly known as number 4/12, Asaf Ali Road, New Delhi (hereinafter referred to as “suit property”) vide a Registered Sale Deed dated 22.09.2010 executed in its favour by its erstwhile owners Shri Deep Chand Mittal and other four owners collectively (referred to as „the Mittals”). Contemporaneously, the plaintiff had also been assigned the right to recover the arrears from the various occupiers including erstwhile tenants as also other tenants who were in use and occupation of various portions of the building, vide a Deed of Assignment that was also executed between the parties on the same date.
3. It is submitted that the entire ground floor (except passage) and the mezzanine (excluding the staircase) above the floor of the suit property was let out by the then owners/ landlords i.e „the Mittals‟ to the United Bank of India (amended as “Punjab National Bank”), „the defendant Bank‟ some 45 years ago who is in use and occupation of the aforesaid accommodation since then. On 15.10.1998 a fresh Lease was executed between the Mittals and defendant Bank for a fixed period of 10 years w.e.f. 01st January, 1998 which expired by efflux of time on 31st December, 2007. The defendant paid the agreed rent @ Rs. 87,500/- per month as per the terms of Lease Deed, to the erstwhile owners till 31.12.2007.
4. The plaintiff sent a Letter dated 22.10.2010 informing the defendants about the execution of the Sale Deed and also the Deed of Assignment in favour of the plaintiff. Simultaneously, the erstwhile owners also wrote a letter dated 27.09.2010 to the Defendant Bank informing about the sale of property to the plaintiff. The defendant Bank acknowledged the receipt of these facts in its Letter dated 03.12.2010 and also the earlier communication dated 28th November, 2010 of the plaintiffs.
5. The plaintiff has claimed that since 31.12.2007, the defendant is in illegal, unlawful and unauthorized use and occupation of the premises in suit. The defendant had admitted to tender the rent/ occupation charges escalated by 25% i.e. @ Rs. 1,09,375/- per month to the erstwhile owners but the plaintiff has reason to believe that the tender so made was not accepted by the Mittals, who had required the defendant Bank to either negotiate and execute a fresh lease Deed at the prevailing market rate or vacate the premises forthwith. The erstwhile owners did not assent in any manner to the defendant to continue to use and occupy the suit premises.
6. The plaintiff served a Legal Notice dated 28.11.2010 on the defendants claiming possession and the payment of mesne profits/ damages for use and occupation charges. The defendant Bank gave a reply dated 03.12.2010 to which a reply/ rejoinder was given by the plaintiff on 18.12.2010.
7. The Plaintiff has claimed that defendants are liable to pay the mesne profits/damages for use and occupation of the aforesaid accommodation at the prevailing rate of Rs. 250 per sq. ft. per month w.e.f. 01.01.2008 till the date possession is handed over to the plaintiff.
8. The suit has been therefore filed for possession and mesne profits w.e.f. 01.01.2008 at the rate of Rs. 6,00,000/- per month in addition to the arrears of occupation charges amounting to Rs. 2,22,00,000/- along with the interest at the rate of Rs. 12 % per annum.
9. The defendant in its Written Statement took a preliminary objection that there is no privity of Contract between the plaintiff and the defendant and the suit is not maintainable. The erstwhile owners/landlords have not been impleaded as they are a necessary part and the suit is liable to be dismissed for want of necessary party. No notice of termination of tenancy by the previous landlords has been issued to the defendant and the suit itself is liable to be rejected.
10. On merits, it is not denied that the defendant was a tenant under the erstwhile owners. It is however, submitted that the rent was being paid at the agreed rate to the previous owners w.e.f. 12.01.2008 till 24.09.2010 by way of Demand Draft. However, the same was not accepted and was returned to the Defendant Bank. The TDS for the said amount was also deducted and the Certificate of TDS was issued to the previous landlords. It is claimed that the defendant Bank never defaulted in making payments of the rent to the previous owners.
11. It is further submitted that the factum of purchase of the property by the present plaintiff came to the knowledge of the defendant Bank only from the Notice dated 28.11.2010. Thereafter, the defendant in the month of the January, 2011 sent Pay Orders towards rent for October, 2010 to December, 2010, amounting to Rs. 2,60,532/- and Rs. 1,73,688/- in the month of February, 2011 for the period of January, 2011 and February, 2011. Further rent for the month of March, 2011 in the sum of Rs. 86,844/- was sent by Pay Order on 03.03.2011, but all these Pay Orders were returned to the defendant Bank without any reason.
12. It is asserted that the plaintiff had been requested to send the documents of ownership in proof of acquiring the ownership, but the plaintiff had failed to do so.
13. It was also stated that the Bank has already searched new premises bearing no. 2A/3, Asaf Ali Road, New Delhi and would be vacating the suit premises within one year or prior thereto. The defendant asserted that the claim of the plaintiff is without merit and is liable to be dismissed.
14. The plaintiff in its replication had reaffirmed its assertions as contained in the plaint.
15. During the pendency of the suit, the possession of the suit property was handed over to the plaintiff on 30.09.2011.
16. The issues in regard to the mesne profits were framed on 03.05.2012 as under: Whether the plaintiff is entitled to mesne profits from the date of institution of the suit till the vacation of the demised premises and if so, at what rate? OPP
17. The additional issue was framed on 03.05.2013 as under: Whether the plaintiff is entitled to mesne profit from the date of termination of the tenancy i.e. 01st January, 2008 till the institution of the suit and if so, at what rate? OPP
18. The plaintiff in support of its claim examined PW-1 Shri. O.P. Gupta, the Promoter Director of the Plaintiff Company who tendered his affidavit of evidence as Ex.1/1. The documents relied upon by the plaintiff are Ex. 1/1 to Ex. 1/13. The admitted documents are Ex. P[1] to Ex. P[9].
19. PW-2 Shri. Shashwat Joshi, Chief Manager, IndusInd Bank, 28, Barakhamba Road produced the Sale record pertaining to Sale Deed dated 22.09.2010 in respect of property bearing no. 4/12, Asaf Ali Road, New Delhi executed by Mr. Deep Chand Mittal in favour of the plaintiff which is Ex. PW2/1.
20. PW-3, Mr. Harish Sharma, Assistant Admn. Officer, LIC of India, New Delhi produced the Lease Deed dated 16.07.2008 pertaining to property bearing no. 3/16, Saraswati Building, Asaf Ali Road, New Delhi. Lease Deed dated 17.11.2008 in respect of property bearing No. 30/31A, Jeevan Vikas Building, Asaf Ali Road and Lease Deed dated 22.07.2008 in respect of property at Jeevan Vikas Building, the copies of which are Ex. PW3/1, Ex. PW3/2 and Ex. PW3/3 respectively.
21. PW-4, Mr. S.K. Sharma, LDC, from the office of Sub Registrar- III, Asaf Ali Road, New Delhi, produced the record pertaining to Lease Agreement dated 09.02.2009 of the property No. 4/10, OPG House, Asaf Ali Road, New Delhi which is Ex. PW4/4 (Ex. PW 1/9); Lease Agreement dated 21.11.2008 pertaining to Property bearing no. 4/24A, Asaf Ali Road, New Delhi which is Ex. PW1/11, Lease Deed dated 17.11.2008 pertaining to property bearing no. 3031A, Jeevan Vikas Builidng, Asaf Ali Road, New Delhi which is Ex. PW4/2 (Ex. Pw1/12); Lease Deed dated 22.07.2008 in respect of the property No. Jeevan Vikas Building, Asaf Ali Road which is Ex. PW4/3 (Ex. PW 1/13), Lease Deed dated 09.02.2009 in respect of the property bearing no. 4/10, OPG House, Asaf Ali Road, New Delhi which is Ex. PW4/4 (Ex. PW 1/9) and Lease Deed dated 16.07.2008 pertaining property bearing no. 3/16, Saraswati Insurance Building, Asaf Ali Road, New Delhi which is Ex. PW4/5 (Ex. PW 1/10).
22. The defendant Bank in support of its case examined DW-1 Shri. Sushil Kumar Routrey, Assistant General Manager, United Bank of India who tendered the evidence by way of affidavit Ex. DW1/A. He relied on the Documents Ex. 1/1 to Ex. 1/8 (document Ex. 1/9 was de-exhibited).
23. DW[2], Daulat Ram, UDC, Sub Registrar Office produced copy of the Lease Deed dated 06.11.2011 executed by Mr. Satya Rani Bhatia in favour of United Bank of India which is Ex. 2/12.
24. The detailed testimony of all the witnesses shall be discussed subsequently.
25. Submissions heard.
26. Issue no.1 framed on 03.05.2012 is: Whether the plaintiff is entitled to mesne profits from the date of institution of the suit till the vacation of the demised premises and if so, at what rate? OPP Issue no. 1 as framed on 03.05.2013 is: Whether the plaintiff is entitled to mesne profit from the date of termination of the tenancy i.e. 01st January, 2008 till the institution of the suit and if so, at what rate? OPP
27. The two issues shall be tried together as they are overlapping. It is an admitted case of the parties that the defendant was a tenant in the suit premises under the erstwhile owners “Mittals”. The last Lease Deed dated 15.10.1998 Ex. P[1] was admittedly executed between the defendant and the erstwhile owners for a period of 10 years. It is further not in dispute that the rate of rent till 31.12.2007 was Rs. 87,500/- per month.
28. The first aspect which needs consideration is the relationship between the parties. The plaintiff has asserted that they became the owner landlords on purchase of the suit property from the erstwhile owners/landlords “Mittals” vide Registered Lease Deed dated 22.09.2010 Ex. PW2/1.
29. It is further deposed that a Deed of Assignment dated 22.09.2010 Ex. PW1/4 was executed by the erstwhile owners in favour of the plaintiff entitling them to recover the rent which may be due since January, 2008. This Deed of Assignment was sent by the erstwhile owners/ Mittals to the Bank informing about the sale of the property to the present plaintiffs.
30. Further, the plaintiff had sent a Legal Notice dated 28.11.2010 Ex. P- 2 not only informing about the purchase of the property by the plaintiff but also demanding user and occupation charges. The defendant has not disputed the service of the Legal Notice and has admitted that a reply dated 03.12.2010 Ex. P-3 was sent by the defendants. A Rejoinder reply dated 18.12.2010 Ex. P-4 was sent by the plaintiff to the defendant bank. The evidence as well as the admitted documents firmly establish that the defendants were duly informed about the sale of property to the plaintiffs by the erstwhile owners.
31. Admittedly, the erstwhile owners, the Mittals did not accept the rent since September, 2007 and the Bank drafts towards the rent were returned to the defendant. The plaintiffs in view of the Deed of Assignment dated 22.09.2010 Ex.PW1/4 is thus, entitled to recover rent @ Rs. 87,500 p.m. for the months of September, 2007 till December, 2007.
32. The Lease Deed Ex. P-1 was admittedly executed on 15.10.1998 and it is not in dispute that the same was for a period of 10 years. After the expiry of 10 years, the tenancy came to an end on 31.12.2007 by efflux of time in terms of Section 111 of Transfer of Property Act, 1882 and the defendant became unauthorized occupant, and thus liable to pay user and occupation charges w.e.f. 01.01.2008. Admittedly the possession has been handed over by the defendant on 30.09.2011. The user and occupation charges payable by the defendant are for the period of 01.01.2008 till 30.09.2011. User and Occupation Charges
33. The next question which thus, arises is the rate at which user and occupation charges are payable. DW[1] Shri Sushil Kumar in his crossexamination has admitted that negotiation talks took place between the erstwhile owners and the plaintiff for increase of rent, but nothing fructified. The plaintiff has also asserted that in order to renew the Lease, the defendant had even tendered the rent with the 25% increase at the rate of Rs. 1,09,375/-, though the same was not accepted by the erstwhile owners who were claiming enhancement of rent at the prevailing market rent.
34. It is not in dispute that the admitted rate of rent was Rs. 87,500/- per month till 31.12.2007. The plaintiff has claimed the user and occupation charges at the rate of Rs. 150/- per square foot amounting to Rs. 6,00,000/per month since 01.01.2008.
35. PW-1, Shri. O.P. Gupta in his testimony has deposed that the area of suit premises is 4,000 square feet being the entire ground floor (except the passage) and mezzanine (excluding the staircase). It is further deposed that the property belonging to M/s. Growth Securities Private Limited is located only one building away from the suit premises. There is ample parking space available around the suit premises. The Hotel President, Corporate Offices of MGF and Oriental Insurance Company Limited are at a distance of few buildings away from the premises in suit. It is further deposed that the defendant bank is also liable to pay service tax on the profits payable by the defendants. The plaintiff had thus claimed the user occupation charge at the rate of Rs. 6,00,000/- per month.
36. In order to corroborate his claim, PW-1 has proved the following Lease Deeds. (1) Lease Deed dated 09.02.2009 Ex.PW1/9 for the property bearing no. 4/10, Asaf Ali Road, New Delhi-110002 wherein the rate of rent is @ Rs. 155 per sq. ft which is being paid for the ground floor admeasuring 2700 sq. ft. which amounts to Rs. 4,18,500/-. (2) Lease Deed dated 16.07.2008 Ex.PW1/10 pertaining to property bearing no. 3/16, Saraswati Insurance Building, Asaf Ali Road, New Delhi wherein the rate of rent is @ Rs. 120 per sq. ft which is being paid for the ground floor admeasuring 2450 sq. ft. which amounts to Rs. 2,94,000/-. (3) Lease Deed dated 21.11.2008 Ex.PW1/11 pertaining to property bearing no. 4/24A, Ground floor, Asaf Ali Road, New Delhi, wherein the rate of rent is @ Rs. 260 per sq. ft. which is being paid for the ground floor admeasuring 3498 sq. ft. which amounts to Rs. 9,09,480/-. (4) Lease Deed dated 17.11.2008 Ex.PW1/12 pertaining to property bearing no. 30/31A, Jeevan Vikas Building, Asaf Ali Road, Delhi, wherein a monthly rent of Rs. 3,86,760/- is being paid for ground and basement admeasuring 3021 sq. ft. and 342 sq. ft. respectively. (5) Lease Deed dated 22.07.2008 Ex.PW1/13 pertaining to property bearing no. Jeevan Vikas Building, Asaf Ali Road, New Delhi, wherein a monthly rent of Rs. 3,79,600/- is being paid for both ground and basement admeasuring 2555 sq. ft. and 2482 sq. ft. respectively.
37. The various Lease Deeds Ex. PW1/9 to Ex. PW1/11 have also been proved by PW-4, Shri. S.K. Sharma from the office of Sub-Registrar.
38. The witnesses had been cross-examined at length by the defendant but nothing material could be brought forth except that a bald suggestion was given that the prevailing rate was not Rs. 150 per square foot. A suggestion was also given that the defendant from the suit premises had shifted to new premises in September, 2011 and the rate of rent was Rs. 110 per square foot.
39. To corroborate the defense that the rate of rent was Rs. 110/- per square foot at which rate the defendant had taken the new premises at 2A/3, Asaf Ali Road, New Delhi-110002 on rent, the defendants examined the DW[1] Mr. Sushil Kumar, Assistant General Manager, who proved the Rent Deed dated 12.05.2011 as Ex. DW1/9. He also deposed that the rate of rent as Rs. 110/- per square foot was assessed in a survey conducted in the year 2008. However, he admitted in his cross-examination that he was not a part of the team which conducted the survey. The alleged Survey Report has neither been produced nor proved. There was merely a bare denial that the prevailing rate of rent between the year 2008 to 2012 was not Rs. 150 per square foot per month, as suggested by the plaintiff.
40. The assessment of the prevailing rate of rent from the year 2008 till 2011 can be made from the various Lease Deeds which have been proved by the plaintiff. The property adjoining to the suit premises bearing no 3/16, Asaf Ali Road was rented out at the rate of Rs. 120 per square foot while the portions of the property bearing no. 30/31A, Asaf Ali Road, New Delhi which is again adjacent to the suit premises, was let out vide Ex. 1/12 and Ex. 1/13 respectively at the rate of Rs. 109 per square foot and 79.36 square foot respectively. However, another adjacent building bearing no. 4/10, Asaf Ali Road was rented out at the rate of Rs. 155 per square feet vide Lease Deed dated 09.02.2009 which is Ex. 1/9.
41. Drawing an average of the rate at which the various properties had been rented out during the year 2008 and 2009, it is calculated at about Rs. 120/-per square foot. Essentially, these were the rates prevailing in the year 2008, and the mesne profits are thus assessed at the rate of Rs. 120/- per square foot for approximately 4,000 square feet of the tenanted premises w.e.f. 01.01.2008 till 30.09.2011.
42. The co-ordinate bench of this Court in RFA 40/2017 M/s. Eureka Forbes Limited v. M/s. Devansh Real Estate Private Limited which involved the tenancy created in favour of the appellant therein in respect of fourth floor of the suit premises, that is 4/12, Asaf Ali Road, New Delhi decided vide judgement dated 01.06.2018 the prevailing market rate since the date of termination of tenancy from April, 2011 as Rs. 150 per square foot. The period involved in the present suit is from January, 2008 onwards. Considering the various Lease Deeds, as mentioned above, of the relevant period, the mesne profits are thus assessed at the rate of Rs. 120/- per square foot.
43. The plaintiff is held entitled to the mesne profits which are assessed at the rate of Rs. 120/- per square foot w.e.f. 01.01.2008 for 4,000 square foot of the tenanted premises till 30.09.2011.
44. It may also be mentioned that the defendant has paid Rs. 87,500/- per month upto September, 2011 to the plaintiff, by the Orders of this Court.
45. The amount which has been paid by the defendant for the relevant period is liable to be adjusted and the balance amount is payable as the mesne profits to the plaintiff.
46. The plaintiff is also held entitled to interest at the rate of 6% per annum on the amount so found to be due from the date of institution of the suit till the date of payment.
47. The issue No. 1 is answered accordingly.
48. The suit of the plaintiff is hereby decreed for the user occupation charges/mesne profits in respect of suit premises forming part of 4/10, Asaf Ali Road, New Delhi as shown in red in the site plan as Ex. PW1/7 at the rate of Rs. 120/- per square foot w.e.f. 01.01.2008 till 30.09.2011 after due adjustment of the payment which have already been made by the defendant to the plaintiff for this period along with interest on the due amount at the rate of 6% per annum from the date of institution of the suit till the date of payment.
49. The parties to bear their own cost.
50. The plaintiff to pay the deficit court fee, and the decree sheet be prepared, accordingly.
JUDGE DECEMBER 06, 2022