VIKRAMAJIT SEN, J. ( 1 ) THE present suit was filed in May, 1996 for Ejectment and for Recovery of Rs. 13,37,928. 00 (Rs. Thirteen Lakhs Thirty Seven thousand Nine hundred Twenty Eightonly) towards mesne-profits and for determination and grant of future mesne-profits. During the pendency of the suit, possession of the demised property was handedback to the Plaintiff on 7. 1. 1999. While resuming possession the Plaintiff had issueda written receipt mentioning inter alia, that the Security Deposit of Rs. 14,40,000. 00 (Rs. Fourteen Lakhs Forty Thousand only) would be returned, if still found due afteradjudication of mesne profit, together with interest thereon at the rate of 15% perannum with half-yearly rests. The Plaintiff had agreed that the interest would becalculable from 7. 1. 1999. ( 2 ) BOTH the parties have led evidence through affidavits. The Plaintiff has filed anaffidvit of Shri Hakumat Rai Malik, Director-in-Charge and Manager Shareholders ofthe Plaintiff dated 22. 1. 1999 and another affidavit of the same person dated 10. 8. 1999. The Defendant has filed an affidavit dated 16. 7. 1998 of Shri Vikram S. Ahuja, Jointmanaging Director of the Defendant as also an affidavit dated September 1999 ofms. Sonia Beri, Manager of the Delhi branch of the Defendant Company. Bothparties have filed numerous annexures thereto,. being copies of Lease Deeds ofother properties. The Plaintiff has however also filed a Lease Deed dated 28. 5. 1999between the plaintif and Sem Tian Exports and Hotels (Pvt.) Ltd. In respect of the suitproperty for the period of three years comencing from 1. 6. 1999. ( 3 ) THE suit, on the only remaining issue of determination and grant of mesneprofits, has to be decided and disposed of on the basis of evidence led by bothparties by means of their affidavits: ( 4 ) IN support of his contention that mesne profits have to be granted at the prevailingmarket rent, Shri Arun Mohan, learned Senior counsel for the Plaintiff has relied onthe following judgments: 1. P. S. Bedi Vs. Project and Equipment Corporation, A. I. R. 1994 Delhi 255. 2. Joginder Lal Kuthiala Vs. Bank of India 1995 (32) DRJ 305 . 3. Theeta Industrial Vs. Harinder Singh 1997 RLR 31 (DB) para 18 onpage 38. 4. Roger Enterpises Vs. Renu Vaish 1998 (444) DRJ 322, 325=1998 (1)A. D. (Delhi) 976. 5. S. Kumar Vs. P. S. Bedi Vs. Project and Equipment Corporation, A. I. R. 1994 Delhi 255. 2. Joginder Lal Kuthiala Vs. Bank of India 1995 (32) DRJ 305 . 3. Theeta Industrial Vs. Harinder Singh 1997 RLR 31 (DB) para 18 onpage 38. 4. Roger Enterpises Vs. Renu Vaish 1998 (444) DRJ 322, 325=1998 (1)A. D. (Delhi) 976. 5. S. Kumar Vs. G. R. Kathpalia 1999 (1) AD (Delhi) 744 (DB) para 4 onpage 747 (Para 5 for interest on mesne-profits)S. Kumar s case (supra) was additionally relied on by the Plaintiff in support of itsclaim for interest on the amount of mesne profits/damages determined by the Court. Since these very views have been voiced by the Supreme Court in Fateh Chand Vs. Balkishan Dass, AIR 1963 SC 1405 , the proposition must be taken as firmlyestablished. ( 5 ) THE Defendant has been in possession of the suit property since 15. 5. 1985pursuant to the creation of a lease between the parties, evidenced by a Lease Deedof that date. This Lease Deed contained a clause permitting its renewal/extension. Mr. R. Venkataramani, learned Senior counsel for the Defendant, placed greatemphasis on the ground that what was contracted between the prties was anextension of the original period of lease and not a renewal. Predicating his argumentson the decision delivered in Provosh Chandra Dalui Vs. Bishava Nath Banerji1989 (Supp. 1 ) SCC 487, it was contended that since only an extension was carriedout, the original Lease continued for the addional period also. This argument assumessome significance for the reason that if the Defendant continued in lawful possessionof the suit property the tenancy could not have been terminated by the issuance of anotice under Section 106 of the Transfer of Property Act, there being no default inpayment of rent and no transgressions or violation of the terms of the lease. This isundoubtedly the correct exosition of the law. The relevant clause of the Lease Deed inthis context has been reporoduced in the plaint itself. This isundoubtedly the correct exosition of the law. The relevant clause of the Lease Deed inthis context has been reporoduced in the plaint itself. It reads as follws:-That the initial period of this Lease shall expire on 14/05/1988 subject tooption of the Lessee for extension of the Lease for another period of threeyears and such requests of the lessee shall not be refused provided thelessee agrees to pay for the extended period of rent with twenty per centincrease in the last paid rate of rent and in the event a fresh lease deed onthe similar terms and conditions as contained herein shall be executedbetween the parties. Every increase, in the period of the lease would be foronly three years duration subject to increase of rental by twenty per cent onthe then agreed rate of rent at the time of each renewal. (emphasis supplied) ( 6 ) HOWEVER, since the Lease Deed itself specifies and envisages that a freshlease Deed shall be executed between the parties, the fine but sound distinctionbetween an extension and renewal of the Lease does not fall to be determined in thefacts of the present case. What was clearly understood between the parties was that a fresh Lease Deed would be executed. The ratio in Provosh Chandra Dalui s (supra) case has therefore no applicability. The Defendant should have approachedthe Court for the specific performance of the renewal clause, if it was its case that theplaintiff was bound to but was illegally refusting. to execute a fresh lease. This has notbeen done. For these reasons, irrespective of the fact that the rent being tenderedwas interms of the expired Lease Deed, i. e. at an increase of 20%, the tenancy couldonly have continued from month to month. The tenancy would be merely one of"sufferance". The following observations from Burmah Shell Oil Distributing \/s. Khaja Midha Noor and Others, AIR 1988 SC 1470 , "4. Indubitably, the lessee came in possession of the property in questin on16th Jan. 1958. The lease was for a period of ten years with a right of renewalfor a futher period of five years. After the expiry of ten years, no instrumentwas executed by the parties and the lessee continued to remain in possessionof the suit property. The lessor accepted the rent and allowed the lessee tocontinue. 1958. The lease was for a period of ten years with a right of renewalfor a futher period of five years. After the expiry of ten years, no instrumentwas executed by the parties and the lessee continued to remain in possessionof the suit property. The lessor accepted the rent and allowed the lessee tocontinue. It is relevant in this connection to refer to the provisions of the Transfer of Property Act, 1882 (hereinafter called the Act ). Section 106 ofthe Act deals with the duration of certain leases in absence of written contractor local usage and S. 107 deals how leases are to be made. These sectionsread as follows: 106. In the absence of a contract or local law or usage to the contrary, alease of immovable property for agricultural or manufacturing purposes shallbe deemed to be a lease from year to year, terminable, on the part of eitherlessor or lessee by six months notice expiring with the end of a year of thetenancy; and a lease of imobable property for any other purpose shall bedeemed to be a lease from month to month terminable, on the part of either 191 lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to be party who is intended to be bound by it or be tendered or delivered prsonally to such party, or to one of his family or servants, at his residence, or if such tender or delivery is not practicable affixed to a conspicuous part of the property. 107. A lease of immovable property from year to year, or for any term. . exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. . 107. A lease of immovable property from year to year, or for any term. . exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. . Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one each such instrument shall be executed by both the lessor and the lessee: Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession". "5. In view of the paragraph 1 of S. 107 of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease shall be deemed to be "lease from month to month". It is clear from the very language of S. 107 of the Act which postulates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The leassee and the sub-lessee in the facts of the case continued to remain in possession of the property on payment of rent as a tenant from month to month. The High Court so found. We are of the opinion that the High Court was right". ( 7 ) THE acceptance of rent at the escalated rate would also not amount to anestoppel. Whether a waiver has taken place is an altogether different consideration. A notice was issued in conformity with Section 106 in the contingency envisaged in Section 111 (h) of the Transfer of Property Act. The latter provision states that a leasedetermines on the expiration of a notice to determine the Lease, or to quit, or ofintention to quit, the property leased, duly given by one party to the other. A notice was issued in conformity with Section 106 in the contingency envisaged in Section 111 (h) of the Transfer of Property Act. The latter provision states that a leasedetermines on the expiration of a notice to determine the Lease, or to quit, or ofintention to quit, the property leased, duly given by one party to the other. I cannot findany act of the Plaintiff which would manifest its intention to treat the Lease assubsisting either with or without the express or implied consent of the Defendant. Prior to 1. 3. 1996, each time the Plaintiff accepted rent a tenancy for that month wouldbe deemed to have been created. However, there can be no controversy thatcommencing from 1. 3. 1996 the Plaintiff encashed the cheques sent by the Defendantpursuant to a preservation of its rights in terms of the orders of this Court dated17. 5. 1996. The Plaintiff would, therefore, be entitled to mesne profits from this periodforwards. But for the prior period, I am equally certain that estoppel against the claimof mesne profits would operate and would negate it. ( 8 ) IT is contended by the Plaintiff that the market rent would be Rs. 150. 00persq. ft. per month, and that the Plaintiff had confined its claim of Rs. 125. 00 per sq. ft. permonth. To buttress this claim the Plaintiff has filed four Lease Deeds along with itsaffidavit by way of evidence dated 22. 1. 1999. The rentals in these Lease Deedsranges from approximately Rs. 95. 00 to Rs. 150. 00 per sq. ft. Keeping the suroundings,location and environs in mind (the other occupants in the area where the demisedpremises are locted being highly reputed concerns) I am of the view that the area iscomparable to any other part of Delhi. In the legal regime presntly prevailing holdingover by tenants, by exploiting the endemic delays of litigation, needs to be discouragedand deprecated. Despite being put to notice that the Plaintiff would be clamingdamages/mesne profits at the rate of Rs. 125. 00 per sq. ft. , the Defendant chose not tovacate the premises but to fight the present litigatin. On the strength of the decisioncited by the Plaintiff, if the Court comes to the conclusion that this rate of Rs. 125. 00persq. ft. per month is not unreasonable and approximately corresponds to the prevailingrentals, it would be just and proper to grant mesne profits at this very rate. On the strength of the decisioncited by the Plaintiff, if the Court comes to the conclusion that this rate of Rs. 125. 00persq. ft. per month is not unreasonable and approximately corresponds to the prevailingrentals, it would be just and proper to grant mesne profits at this very rate. In itsaffidavit dated 16. 7. 1998 the Defendant had produced Lease Deeds of premiseslocated in Greater Kailash-l Market and in Greater Kailash-ll. If there was such anappreciable difference between the rent claimed by the Plaintiff in respect of the suitpremises and rentals of available space in comparable areas, the Defendant wouldhave shifted out of the suit property. Having failed to do so, the Defendant cannot beheard to complain on this score today and must be deemed to have profited by thisvery measure. . The Defendant has further controverted the applicability of the Leasedeed relied upon by the Plaintiff on various grounds. As regards location. I havealready held that the suit property was comparable to the best. They certainly can befavourably compared to those in Greater Kailash, Green Park, Masjid Moth andbhikaji Cama Place. ( 9 ) THE next ground, of the large amount of Security Deposit lying in the hands of theplaintiff/landlord, is valid since the interest that would accrue on a large deposit wouldoffset a lower rental. The Security Deposit in the Lease Deed relied upon by theplaintiff was generally of six months. The Defendant has given a Security Depositequivalent to 35 months. The differential in the Security Deposits can equitable beaccounted for by not granting any interest on the mesne profit that have accrued,month to month, since 1. 3. 1996. ( 10 ) THE Defendant has also assailed the Plaintiffs comparison on the basis of thefour Lease Deeds filed by it, on the grounds that a part of the demissed premisesconstitutes the Basement. This contention is not of great significance since thelocation of the premises, in question are such that the Basement has considerableutility. It is easily accessible, being at the corner of the building and is imediatelybelow the other portion of the demised premises. Even if the rental of the premises inbhikaji Cama Place is not taken into consideration the average or mesne of rentalsis aproximately Rs. 125. 00 per sq. ft. It is easily accessible, being at the corner of the building and is imediatelybelow the other portion of the demised premises. Even if the rental of the premises inbhikaji Cama Place is not taken into consideration the average or mesne of rentalsis aproximately Rs. 125. 00 per sq. ft. ( 11 ) THE most significant and irreputable evidence produced by the Plaintiff, which inmy view clinches the issue and annihilates the stand of the Defendant, is the leasingof the suit premises to M/s Sam Exports (Pvt.) Ltd. at a rental of Rs. 5,00,000. 00 permonth for a period of three years with six months rent as security deposit. The arealet out is 2,216 sq. ft. on the ground floor, 2,216 sq. ft. basement and 750 sq. ft. mezzanine. This computes to an average of Rs. 96. 5 per sq. ft. per month. It must beborne in mind that the rentals in Delhi have been falling drastically in teh last two years. A rental of Rs. 96. 5 per sq. ft. in 1999 is therefore certainly equitable to Rs. 125. 00 persq. ft. in 1996. ( 12 ) LEARNED counsel for the Defendant has drawn attention to the fact that thedefendant has taken premises on rent at the rate of Rs. 50. 00 per sq. ft. per mensern. This is wholly irrelevant. What is required to be kept in perspective are the rentalsavailable in the area where the suit premises are located. Learned Counsel hadrelied on the decision in Fateh Chand s case (supra) and Smt. Purificacaofernandes and Another Vs. Dr. Hugo Vicente De Perpetuo Socorro Andrademenezes and Others, AIR 1985 Bombay 202, in support of his contention that thedefinition of mesne profits does not admit the grant of market rent. The definitioncontained in Section 2 (12) of the Code of Civil Procedure reads as follows: "mesne profits" of property means those profits which the person inwrongful possession of such property actually received or might with ordinarydiligence have received therefrom, together with interest on such profits, butshall not include profits due to improvements made by the person in wrongfulpossession". ( 13 ) IT was strongly contended bylearned Counsel for the Defendant that the definitionhas been cast in the mould not of the owner but of the person in wrongful possession. ( 13 ) IT was strongly contended bylearned Counsel for the Defendant that the definitionhas been cast in the mould not of the owner but of the person in wrongful possession. Therefore, it was argued, that in quantifying mesne profits it is wholly irrelevant whatare the profits likely to be earned by the Plaintiff. It was, in fact, in this context that hehad drawn reference to the Defendant having taken premises on rent in the Santushticomplex, Delhi at a rental of Rs. 50. 00 per square foot per month. In Fateh Chand scase (supra) the Apex Court had held that "the normal measure of Mesne Profits isthe value of the user of land to the person in wrongful possession. The assessment ofcompensation based, not on the value of the user but on an estimated return on thevalue of the property, cannot be sustained". These observations were made incircumstances where rents and ejectment of tenants was regulated by Rent Controlstatutes. The existing tenant could not be asked to pay escalation. Even if premiseswere freshly relet, the new tenant was statutorily liable to pay only the standard rent. With the withdrawal of the protection to tenants in Delhi paying rentals in excess ofrs. 3500. 00 per month, the profits earned by the tenant would be the payment of themarket rent saved by the tenant by holding over. Where a claim for a specific amountas mesne profits has ben raised by the landlord, which claim is realistic in comarisonto the prevailing market rents, it would be just and equitable that the profits receivedby the tenant be considered at this rate. Otherewise, surely, the tenant would havevacated the premises on receipt of the notice to quit. Since the judgment in Smt. Purificacao s case (supra) has been delivered with the Rent Control Statutes inmind, it would also not apply. The following passage from Fateh Chand s case (supra) calls for reproduction, to clear the controversy: "the normal measure of mesne profits is therefore the value of the user ofland to the person in wrongful possession. The assessment made by thehigh Court of compensation at the rate of five per cent of what they regardedas the fair value of the property is based not on the value of the user, but onan estimated return on the value of the property, cannot be sustained. Theattorney-General contended that he premises were governed by the Delhi. The assessment made by thehigh Court of compensation at the rate of five per cent of what they regardedas the fair value of the property is based not on the value of the user, but onan estimated return on the value of the property, cannot be sustained. Theattorney-General contended that he premises were governed by the Delhi. and Ajmer-Merwara Rent Control Act XIX of 1947 and nothing more than thestandard rent of the property assessed under that Act could be awarded tothe Plaintiff as damages. Normally a person in wrongful possession ofimmovable property has to pay compensation computed on the basis ofprofits he actually received or with ordinary diligence might have received. Itis not necessary to consider in the present case whether mesne profits at arate exceeding the rate of standard rent of the house may be awrded, forthere is no evidence as to what the standard rent of the house was. Fromthe evidence on the record it appears that a tenant was in occupation for along time before 1947 of the house in dispute in this appeal and anotherhouse for aggregate rent of Rs. 180. 00 per mensern, and that after the housein dispute was sold, the Plaintiff received rent from that tenant at the rate ofrs. 80. 00 per mensern, and the vendor of the Plaintiff at the rate of Rs. 106. 00per mensern. But this is not evidence of standard rent within the meaning ofdelhi and Ajmer-Merwara Rent Control Act, XIX of 1947". 14. I have already held that the decision relied upon by the Plaintiff mentioned in thebeginning of this judgment, supports the contention of the learned Counsel for theplaintiff that it is the market rent which has to be kept in view and that if a demand ismade for damages at a rate which is realistic, keeping the market rents in view, it isthese rates that should be granted. ( 15 ) KEEPING all these factors in mind, I am of the considered opinion that the Plaintiffis entitled to claim mesne profits in respect of the suit property at the rate of Rs. 125. 00epr sq. ft. The Defendant has failed to persuade me that the claim of Rs. 125. 00 per sq. ft. contained in the legal notice was contrary to the rentals then prevailing in themarket. 125. 00epr sq. ft. The Defendant has failed to persuade me that the claim of Rs. 125. 00 per sq. ft. contained in the legal notice was contrary to the rentals then prevailing in themarket. Differently stated, the Defendant has failed to establish that the profit that ithad gained from the use of these premises were not at this rate. ( 16 ) ACCORDINGLY, the suit is decreed for mesne profits at the rate of Rs. 125. 00epr sq. ft. for the period of 34 months indicated above. The rentals paid upto 31. 5. 1998would be subtracted from the amount. Further the Security Deposit together withinterest thereon at the rate of 18 per cent annum, with effect from 7. 1. 1999, on whichdate possession was returned to the landlord, would also be deducted. The followingamount would fall due:4432 sq. ft. x Rs. 125 =rs. 5,54,000. 00 for onemonth. For 34 Months (Rs. 5,54,000 x 34)Rs. 1,88,36,000. 00less Security Deposit Rs. 14,40,000. 00less damages/rentreceived for theperiod from1. 3. 96 to 14. 5. 97rs. 71,223. 60per month Rs. 10,29,295. 89less damages/rentreceived for theperiod from15. 5. 97 to 31. 12. 98rs. 85,460. 40per monthrs-16,70,612. 90less interest18 per centper annum from7. 1. 99 to 28. 3. 2000on Security Depositofrs. 14,40,000. Rs. 3,17,431. 32rs. 44,57,340. 11rs. 1,43,78,659. 89 ( 17 ) THE Plaintiff would also be entitled to costs as well as interest at the rate of 18per cent per annum on the decretal amount from the date of the decree till itsrealisation. ( 18 ) SUBJECT to the Plaintiff depositing the requisite Court Fee, now additionallypayable, within thirty days, the decree be drawn up.