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2007 DIGILAW 189 (DEL)

PADMA SHARMA v. PUNJAB NATIONAL BANK

2007-01-29

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) THE plaintiffs filed a suit for possession, recovery of damages and mesne profits against the defendant/bank in respect of premises bearing Nos. 111, 112, 115 and 116, Main Laxmi Nagar Market, Delhi consisting of 1412. 5 sq. ft. on the ground floor and 1469. 02 sq. ft. on the first floor. The Lease Deed dated 11. 3. 1994 specifies that the period of lease commences from 27. 12. 1989 and the rent payable was Rs. 9,704/- per month. This rent was @ Rs. 3. 75 per sq. ft. for the ground floor and Rs. 3. 00 per sq. ft. for the first floor. The Lease Deed is exhibited as exhibit PW-1. ( 2 ) THE plaintiffs issued noticed through counsel dated 30. 9. 1994 (exhibit PW2) asking the premises to be vacated. This was followed up by another notice dated 28. 10. 1996 (exhibit PW3 ). Since the premises were not vacated the suit was filed. ( 3 ) THERE is no dispute about the execution of the Lease Deed, the extent of the premises and the agreed rent. The premises were finally vacated on 24. 5. 2001 and the question of mesne profits was referred to the Local Commissioner to be decided after recording evidence. The report of the Local Commissioner, as he then was, dated 28. 3. 2006 has been received. As per the report the rate of damages has been assessed at Rs. 10/- per sq. ft. uniformly. The Local commissioner left open two questions to be examined by this Court. The first question related to the plea of the defendant for waiver of notice and the second is in respect of the period for which the damages have to be assessed. The second plea is, in fact, linked with the first plea inasmuch as while the plaintiffs claim that even by efflux of time the Lease Deed would expire on 26. 12. 1994, the defendant claims that they continued to deposit the rent in the accounts of the plaintiffs and thus, till 1996 they are not liable to pay any damages as they were authorised tenants in the premises on a month to month basis. ( 4 ) INSOFAR as the plea of waiver is concerned learned counsel for the defendant sought to rely upon a letter dated 23. 4. 1994 (exhibit DW-2/1) of the plaintiffs. ( 4 ) INSOFAR as the plea of waiver is concerned learned counsel for the defendant sought to rely upon a letter dated 23. 4. 1994 (exhibit DW-2/1) of the plaintiffs. The letter states that the amount of rent lying to the credit of the plaintiffs in the sundry account should be credited to the plaintiffs in equal shares. The letter only shows that during the currency of tenancy the amount of rent be bifurcated in equal shares. ( 5 ) I am unable to accept the contention of the learned counsel for the defendant bank that merely because the defendant bank continued to deposit the last paid rent in the account of the plaintiffs as per the instructions, which were valid when the tenancy was in existence there is a waiver of the notice dated 30. 9. 1994 or that the defendant was authorised tenant till October 1996, they having credited the rent to the account of the plaintiffs. ( 6 ) INSOFAR as the period for which the damages have to be paid, a reading of the lease Deed leaves no manner of doubt that by efflux of time the lease would expire on 26. 12. 1994 the lease being for five years. Not only that the plaintiffs have served notice dated 30. 9. 1994 apart from a reminder dated 28. 10. 1996. The premises were vacated on 24. 5. 2001. Thus the rate of damages would be payable from 27. 12. 1994 to 24. 5. 2001. This would, of course, be after adjusting the amount already paid by the defendant to the plaintiffs towards the undisputed last rent. ( 7 ) IN the end, coming to the rate of damages, the report of the Local commissioner shows that the plaintiffs produced lease deeds for different periods of time. The defendant did not produce any lease deed of the relevant period. One of the lease deeds dated 5. 12. 1997 in favour of the LIC shows the rate of rent @ Rs. 9/- per sq. ft. approximately in the same market. Another lease Deed dated 28. 4. 2000 showed the rate of rent at Rs. 20/- per sq. ft. for the first floor and Rs. 17/- per sq. ft. for the second floor. This is in respect of premises taken by the defendant bank itself. The third lease deed dated 20. 05. 9/- per sq. ft. approximately in the same market. Another lease Deed dated 28. 4. 2000 showed the rate of rent at Rs. 20/- per sq. ft. for the first floor and Rs. 17/- per sq. ft. for the second floor. This is in respect of premises taken by the defendant bank itself. The third lease deed dated 20. 05. 2000, in the same market pertaining to ground floor, first floor, second floor and third floor showed the rate of rent at Rs. 10. 25 per sq. ft. for five years. The plaintiffs have claimed mesne profits/damages @ Rs. 28/- per sq. ft. ( 8 ) THERE were two options open to the Local Commissioner. The first was to assess the damages at different rates for different periods and the second was to average out the rate of damages. It is the second course, which has been adopted by the Local Commissioner and taking into consideration the rates aforesaid, the rate of damages are not liable to be interfered with. ( 9 ) IN view of the aforesaid the plea as advanced by learned counsel for the defendant based on the objections cannot be accepted. ( 10 ) THE last aspect to be examined is the question of any pendente lite interest on the damages. Learned counsel for the defendant states that since there is an averaging out of the damages for the entire period, no interest should be levied. I am inclined to accept this plea only up to the date of vacation because at least on that date the amount of damages would fall due. ( 11 ) A perusal of the proceedings before the Local Commissioner shows the inordinate time taken by the defendant to complete the inquiry before the Local commissioner. In fact, this aspect has been noted by this Court when the proceedings were going on. I am thus of the considered view that on the quantum of damages assessed at Rs. 10/- per sq. ft. less the amount paid by the defendant, the defendant is liable to pay interest from the date of vacation of the premises, i. e. 24. 5. 2001, till the date of payment to the plaintiffs @ 9% per annum (simple interest ). The plaintiff are also held entitled to costs. The decree sheet be drawn up accordingly. ( 12 ) THE suit stands disposed of.