INDIAN OIL CORPORATION v. TARA PROPERTIES PVT. LTD
1998-01-14
VIDYA NAND, VINOD KUMAR GUPTA
body1998
DigiLaw.ai
VINOD KUMAR GUPTA, J. ( 1 ) -THIS is the defendant's appeal in a suit filed by the plaintiff respondent for recovery of money on account of the claim for damage allegedly suffered by the plaintiff respondent owing to the occupation of the premises by the defendant. The facts are that the appellant was the tenant of the respondent in respect of five floors of a building situated at No. 13, Camac street, Calcutta. The tenancy started in the year 1964 or thereabout and it was on 30th november, 1970 the appellant vacated the entire premises because of shifting to its own location. There is no dispute between the parties with respect to the tenancy as such or on the question of vacation of the premises by the appellant. The dispute arose on account of the claim of the respondent with respect to some damage that the respondent said was caused in the property by the appellant. The respondent accordingly filed a suit against the appellant for claiming damages on account of the following heads : (1) Compensation for damage to the property; (2) compensation for non-use of the building for about 3 months for effecting repairs to the damaged portion of the property; (3) amount of the increased share of the occupier for the Corporation tax; and (4) interest. ( 2 ) BUY the judgment under appeal the learned Single Judge decreed the suit in favour of the respondent and awarded claims in its favour upon all the aforesaid four heads of claim. ( 3 ) THE following five issues were framed for trial by the learned Single Judge:1. Has the defendant caused any damages to the tenanted premises at 13, Camac Street, Calcutta. If so, what is the extent of the damages? 2. Is the plaintiff entitled to recover a sum of Rs. 1,29,469. 50 A/c. of the alleged damages made by the defendant in the defendant's tenanted premises? 3. Is the plaintiff entitled to realise increased proportionate Corporation rates and taxes amounting to Rs. 15,994. 10? ( 4 ) IS the claim of the plaintiff barred by limitation? ( 5 ) TO what other relief or reliefs is the plaintiff entitled?4. Findings on all the relevant issues having gone in favour of the respondent the suit, as stated earlier, was decreed in its favour with cost assessed at 5,000/- and interest @ 6% p. a. 5.
( 4 ) IS the claim of the plaintiff barred by limitation? ( 5 ) TO what other relief or reliefs is the plaintiff entitled?4. Findings on all the relevant issues having gone in favour of the respondent the suit, as stated earlier, was decreed in its favour with cost assessed at 5,000/- and interest @ 6% p. a. 5. The respondent's case before the trial court was that the property suffered damage because of misuse by the appellant. Evidence was led by the plaintiff to prove that in almost all the five floors of the premises damage was inflicted by the appellant. We have very carefully perused the evidence, oral as well as documentary and considered all the relevant aspects of the matter. ( 6 ) ONE fact which cannot be lost sight of is that the property was under the occupation of the appellant for almost 7 years. The monthly rent was about Rs. 30,000/ -. By this calculation therefore it can safely be said that this property brought to the respondent an estimated rent amount to the tune of about rs. 25 lacs. As against this background, if after 7 years of occupation and having paid about Rs. 25 lacs as rent to the landlord, the landlord suffered some damage to as many as 5 floors of the property, total cost whereof on the own showing of the landlord was not more than Rs. 40,000/-, can it not be called a case of usual damage by normal wear and tear and/or the use of the building in the normal course. One perhaps cannot refer to any other incidence of damage in normal course where despite use of the building for 7 years and after receiving more than Rs. 25 lacs as the rent, the landlord has only to spend just about Rs. 40,000/- to reclaim the property for further use. Therefore this damage, in our opinion, would fall within the scope of reasonable wear and tear which was also expected, in the lease agreement between the parties. In fact in the plaint it has been clearly mentioned by the plaintiff itself that the tenant was to restore the possession of the property in as good a condition as possible subject to reasonable wear and tear, which undoubtedly would include the damage in normal course, owing to use and occupation by the tenant, especially for office purposes.
In fact in the plaint it has been clearly mentioned by the plaintiff itself that the tenant was to restore the possession of the property in as good a condition as possible subject to reasonable wear and tear, which undoubtedly would include the damage in normal course, owing to use and occupation by the tenant, especially for office purposes. ( 7 ) THE other aspect relating to the claim of damage was the total absence of any specific particulars of damage allegedly suffered by the respondent. In a suit for quantified damages based on an actionable claim under the law of torts, or even on a suit for breach of contract for damages on such an actionable claim, it is the obligation to the plaintiff to specify the damage with respect to individual claims and to point out precisely the extent of damages, with reference to all material particulars and the manner in which it was caused. Not only individual incidents of damage have to be pointed out but even the expenditure incurred by the plaintiff for repairing the damage has to be precisely stated and proved with respect to all material particulars. All these are totally missing in this case. The claim of the petitioner was a sweeping one, nay a bald one, a claim totally unsupported by any material particulars. No worthwhile evidence was led by the plaintiff in furtherance of proving the claims or establishing any such fact. The plaintiff therefore was not entitled to any claim for damages on account of any so-called or alleged loss suffered by its in respect of the property. We therefore disagree with the learned single Judge regarding his finding on this point. ( 8 ) SINCE we have rejected the plaintiffs' claim for damages, there is no question of even considering the claim for compensation for non-use of the premises for three months because of the plaintiff's claim that it spent three months to undertake and complete the repairs. This claim is also rejected. ( 9 ) IN so far as the question relating to the claim of occupiers' share of the Corporation tax is concerned, we have no hesitation in rejecting this claim as a whole because it is also not based on any material particulars.
This claim is also rejected. ( 9 ) IN so far as the question relating to the claim of occupiers' share of the Corporation tax is concerned, we have no hesitation in rejecting this claim as a whole because it is also not based on any material particulars. No details have been given in the plaint or in the evidence as to the nature of the demand made by the Corporation to which the tenant was or could be found liable to pay occupier's share of the Corporation tax. Unfortunately also the learned Single Judge in the judgment under appeal has also not referred to any supporting material which could form the basis of such claim of the plaintiff. ( 10 ) FOR the foregoing reasons therefore, we have no hesitation in holding that the plaintiff was not entitled to any claim under any head. We accordingly allow this appeal arid set aside the judgment and decree impugned herein with costs. All the other consequences will follow. ( 11 ) WE also treat the cross-objections filed by the respondent plaintiff as on the day's list, and in view of the our judgment in the main appeal, we dismiss the cross-objections as well. ( 12 ) THE appeal is accordingly allowed with costs. The judgment and decree impugned are set aside. If the appellant had deposited any amount in this court pursuant to any court direction, we direct that such amount shall be returned to the appellant along with interest accrued thereupon, if any. Appeal allowed.