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2013 DIGILAW 179 (CAL)

Casyab Pvt. Ltd. v. Central Bank of India

2013-03-26

SOUMEN SEN

body2013
JUDGMENT : Soumen Sen, J. The plaintiff instituted a suit for eviction of the defendant, Central Bank of India, on the ground of expiry of lease by efflux of time and for mesne profits, damages and other reliefs. 2. The suit was instituted on 10th May, 2006. 3. During the pendency of the suit, the plaintiff had taken out an application under Chapter XIII-A of the Code of Civil Procedure for a summary decree. In the said proceeding, a learned Single Judge of this Court by an order dated 22nd March, 2007 passed a final judgment and decree for eviction of the Central Bank of India from the suit premises. However, the claim for damages, mesne profits, interests and other reliefs were relegated to suit and the defendants were given leave to defend the said claims. 4. The said decree was unsuccessfully challenged up to the Hon'ble Supreme Court. The Hon'ble Supreme Court by a judgment and order dated 14th July, 2008 while dismissing the special leave petition granted the defendant nine months time to hand over the peaceful and vacant possession of the suit premises on an undertaking to be furnished before the Hon'ble Supreme Court within 4 weeks from the date of the order. The High Court was requested to decide the dispute regarding mesne profit. 5. Pursuant to the said order, an undertaking was filed by the defendants. The defendants ultimately vacated the premises and surrendered the possession of the property to the plaintiff on 30th May, 2009. 6. Accordingly, the only question for determination in the suit is with regard to the mesne profit since 1st November, 2005 till 30th May, 2009. 7. On behalf of the plaintiff, two witnesses were examined, namely, Sri Rakesh Kasyab and Sri Sundar Lal Mitra. 8. Mr. Kasyab in his deposition stated that he is one of the directors of the company. He further stated that a notice to quit was issued on 16th September, 2005 but the defendants in spite of receipt of such notice failed, neglected and/or refused to hand over vacant possession. In view thereof, the plaintiff was constrained to file the instant suit for eviction. In his evidence, he stated that the mesne profit tentatively would be Rs.6,100/- per day and such claim would also be substantiated from a report submitted by the Surveyor from Talbot & Company. In view thereof, the plaintiff was constrained to file the instant suit for eviction. In his evidence, he stated that the mesne profit tentatively would be Rs.6,100/- per day and such claim would also be substantiated from a report submitted by the Surveyor from Talbot & Company. The property is situated near Statesman Building having the carpet area of 3240 sq. ft. on the ground floor. The witness has also referred to the order dated 2nd August, 2007 passed by the Hon'ble Division Bench in appeal preferred by the Central Bank of India against the decree passed in the summary proceeding in which the defendant undertook to pay Rs.1,88,200/- per sq. ft. out of which the defendant was directed to deposit Rs.1,52,560/- with the Registrar, Original Side and an amount of Rs.35,640/- directly to the plaintiff landlord since 1st November, 2005 which the defendant deposited till December, 2007. 9. Mr. Kasyab, however, was not cross-examined. 10. The second witness on behalf of the plaintiff was Sri Sundar Lal Mitra who claims to be a Chartered Valuer and Surveyor. The said valuer deposed that he was associated with the M/s. Talbot & Co. and presently working as a consultant, in charge of Survey and Valuer Department. He visited Premises No.5, Chowranghee Road in order to assess the rental value of the ground floor of the said premises. It was stated that he assessed the rental value considering the rental value of commercial premises that are comparable to the suit property at the relevant time and situated or located near the said property. In preparing the report, he had added and deducted the percentages of the advantages and disadvantages of the suit property in relation to the comparable properties and thereafter arrived at the rental value in relation to the suit property. In assessing the rental value, he had taken the average of the findings. He was in the profession for the last 50 years. He had enough experience which he applied in the instant case, in assessing the rental value of the said property. In the cross examination, he stated that he personally ascertained and enquired the rate of rent at the material point of time in the locality and in the report he had mentioned three properties all of which he had personally visited and enquired about the rents that were being paid by the respective lessees. In the cross examination, he stated that he personally ascertained and enquired the rate of rent at the material point of time in the locality and in the report he had mentioned three properties all of which he had personally visited and enquired about the rents that were being paid by the respective lessees. These rents he ascertained after going through the original lease documents. He was requested to prepare the report sometimes in November, 2008 on the basis of a verbal instruction received from Mr. Kasyab and for which he was paid the professional fee. Mr. Mitra further stated that he inspected the property personally, made a plan and assessed the rental value on the basis of comparable "lettings in the locality". He was instructed to assess the rental value of the ground floor of Premises No.5, Chowranghee Approach as on 1st November, 2005. He had visited the premises in the afternoon of 20th November, 2008. He did not take any physical measurement but proceeded on the basis of the measurement given in the lease document. The suit premises was having electric and water connection. He was not aware of any complain with regard to the water supply in the premises. In a specific question being put as to whether there could be any fixed method formula for calculating the floor rent, Mr. Mitra deposed that one of the methods would be the comparison method which he had followed. He had considered the letting out rate of commercial premises in and around the nearby localities and the three instances he had mentioned in the report were all under the occupation of the bank as tenants. He had added percentage for the advantages of the property in relation to the comparable properties and deducted percentage for the disadvantages of the property in relation to such comparable properties. He found three different figures and ultimately had taken the average value of the three figures in arriving at the rental value of the said property. According to him this is the best method of computing rental value and the other method of taking the cost of construction and the rent value and determining the capital value from that and taking a return from the capital value would not be a suitable method which could be applied in the instant case. According to him this is the best method of computing rental value and the other method of taking the cost of construction and the rent value and determining the capital value from that and taking a return from the capital value would not be a suitable method which could be applied in the instant case. He had stated that in respect of all the three properties either he had in the past visited the premises on a number of occasions or he had the occasion to consider the lease deeds of the said premises on earlier occasions or both before preparing the present report. It was stated that although the report was prepared in December, 2008 but he had ascertained the rental value as on 1st November, 2005 and on that basis the said report was prepared. Such assessment was made on the basis of the comparable units as detailed in the said report. He had given a description of the suit premises in answer to question No.178 in cross-examination which is reproduced here in below:- "178. Could you give a brief description of the suit premises that you have visited?/ This suit premises is situated on the Northern side of Chowranghee approach at a distance of about 20 yards west from the conjunction of Madan Street and Chowranghee approach. The site is defaulted with partly six-storeyed and partly seven-storeyed building. The roofs and floors are made of RCC. I have been instructed to assess the rental value of ground floor which is occupied by the Central Bank of India. The ground floor was finished with mosaic tiles. There were steel windows with glass frames, panes and collapsible gates. The ground floor was provided with electricity and sanitary plumbing installation. In addition to staircase, there is a passenger lift in the building. Kolkata Municipal Corporation supplies water to this premises." 11. In a question being put with regard to the opinion expressed by the valuer in respect of increase of 10 per cent per annum of the value of the properties in or around the suit premises, it was stated that 10 per cent per annum increase is the minimal. In the recent years, prices have plummeted. The relevant questions and answers in cross-examination being question Nos.189, 190, 200, 201, 206, 207, 208 and 209 are reproduced here in below:- "189. In the recent years, prices have plummeted. The relevant questions and answers in cross-examination being question Nos.189, 190, 200, 201, 206, 207, 208 and 209 are reproduced here in below:- "189. In your report you have stated that the rental value of properties in and around the suit premises increased by leaps and bounds from 2000 and in your opinion the increase was 10 per cent per annum. Is it based on any particular basis?/ As a matter of fact, the increase of value is much more than 10 per cent. For example, in Alipore a plot was sold in 1982 at the rate of Rs.1,50,000/- per cottah. But in 1998 plots of land in Alipore Road near Woodland Hospital were sold at Rs.22 lakhs per cottah. So, for a span of 18 years the increase was more than 12 times which suggests that this increase is much more than 10 per cent. This has happened in Kolkata also and from my knowledge and experience of 50 years I find that 10 per cent increase per annum is the minimal and my assessment for the last 50 years has already been accepted by different courts. 190. The position is very generalized. In recent years prices have plummeted. Did you carry out any detailed survey of the entire area to come to a conclusion that the prices had increased by 10 per cent?/ No. This is to the best of my knowledge and experience. 200. Kindly explain to this Hon'ble Court what do you mean by the expression "time factor" as specified in your report?/ The expression "time factor" means the land value or rental value is increasing day by day for a period of one or two years, i.e. with the passage of time the value also changes. 201. I suggest it to you that under the heading "time factor" instead of detailing about the specific time period you have merely, by vague terms, specified that the rental value has increased by leaps and bounds?/ It is not a fact. In my report in each case I have mentioned the difference of time and increased the value at the rate of 10 per cent per annum. The time is expressly mentioned in the report. 206. In my report in each case I have mentioned the difference of time and increased the value at the rate of 10 per cent per annum. The time is expressly mentioned in the report. 206. I suggest it to you that you have ascertained the rental value of the other properties for other purposes and not for ascertaining the rental value of the suit premises?/ The rental value of the suit premises is on the basis of three lease deeds, the details of which are mentioned. On the basis of actual letting and adding and deducting percentages for advantages and disadvantages I arrived at the rental value of the premises. 207. Who provided you the lease deed of this premises?/ On a number of times I did valuation of this property. I got copies of those lease deeds from the owners of the property. 208. Did they provide you the copies of the lease deeds?/ Yes. I saw the original lease deed and got a copy of that. 209. Were you provided three lease deeds altogether?/ There are three properties. I have mentioned two properties are on the basis of lease deeds. Copies of those lease deeds are with me. Another property is on monthly tenancy basis." 12. Mr. Sundar Lal Mitra in his report has relied upon three properties in order to ascertain the rental value of the suit premises as on 1st November, 2005. 13. The first property is situated at 13, Lindsay Street, having a carpet area of about 2,530 sq. ft. The Federal Bank Ltd. is the lessee for a period of 10 years with effect from 15th April, 2000 on a rent of Rs.50/- per sq. ft. In terms of the lease deed, the monthly lease rent would be increased by 10 per cent of the existing rent on expiry of every 5 years from the commencement of the lease. The lessee also agreed to pay municipal taxes and surcharge at the rate of Rs.11/- per sq. ft. Thus, the monthly rent would be Rs.61/- per sq. ft. 14. The second property is situated at 36A, B, C & D, Chowranghee Road. The ICICI Bank Ltd. is occupying the ground floor having carpet area of 3,100 sq. ft. under a lease deed dated 12th January, 2004 for a period of 9 years on a rent of Rs.114.50/- per sq. ft. ft. 14. The second property is situated at 36A, B, C & D, Chowranghee Road. The ICICI Bank Ltd. is occupying the ground floor having carpet area of 3,100 sq. ft. under a lease deed dated 12th January, 2004 for a period of 9 years on a rent of Rs.114.50/- per sq. ft. per month including hire charges of fixtures and fittings plus municipal taxes. The said property is situated on the eastern side of Chowranghee Road. 15. The third property considered by Mr. Mitra was the ground floor of 15, Brabourne Road, having a total built-up area of 3,792 per sq. ft. which was let out to South Indian Bank Ltd. on 1st January, 1998 at the rate of Rs.68/- per sq. ft. per month including hire charges of fittings and fixtures. The rent component was Rs.40/- and the rest of the amount, namely, Rs.28/- was for furniture, fittings and municipal taxes. 16. The rental value of the Lindsay Street property was determined as Rs.89.50/- per sq. ft. per month on 1st November, 2005, Chowranghee Road property was Rs.143.50/- per sq. ft. per month and Brabourne Road property was Rs.132.82 per sq. ft. per month. 17. The rental value of the property as on 1st November, 2005 was determined on the basis of the mean value of the three properties, namely, Rs.89.50+Rs.143.50+Rs.132.82=Rs.121.94 per sq.ft. per month. Accordingly, the valuer opined that the rental value of the said property would be Rs.122/- per sq. ft. per month inclusive of hire charges of fixtures, fittings and municipal taxes as on 1st November, 2005. 18. The defendants produced one Mr. Ram Sankar Sharma as their witness. Mr. Sharma in his deposition complained about lack of water supply in the premises but admitted that apart from certain oral communications, no formal complain was lodged with the landlord for all these years. Mr. Sharma in his deposition stated that he had document in his possession which would show that the reasonable letting out value for the premises in question would not have been more than Rs.55/- at the material point of time. The witness relied upon Exhibits 4, 5, and 6 and the letter dated 20th October, 2005 in this regard. 19. Mr. Sharma has also referred to one communication from the Centurion Bank which was marked for identification but ultimately not exhibited. 20. The witness relied upon Exhibits 4, 5, and 6 and the letter dated 20th October, 2005 in this regard. 19. Mr. Sharma has also referred to one communication from the Centurion Bank which was marked for identification but ultimately not exhibited. 20. In view thereof, the letter from the Centurion Bank is kept out of the purview for the purpose of deciding the instant case. 21. The witness in answer to Question No.30 with regard to the rate of rent prevailing in the adjoining areas in 2005 deposed that it would be around 50 per sq.ft. and relied upon the letter dated 20th October, 2005 issued by the landlord while expressing their desire to renew the lease on the terms and conditions mentioned therein. However, the witness admitted that he had no personal knowledge about what would have been possible letting out value and rate of rent in and around the said premises in 2005. He admitted that in the suit premises, there were parking facilities as well as a place to install the generator. 22. The primary reason for leaving the suit premises appears to be a policy decision taken by the higher authorities of the defendants with regard to the reduction in area. The defendant bank was, in fact, willing to retain the tenancy (Question No.212 in Cross-examination). The bank had shifted to a nearby place, namely, Premises No.8, Lenin Sarani, Calcutta having an area of 2200 sq.ft. which is a 2-3 minutes walk from the suit premises, namely, No.5, Chowranghee Approach. The defendant No.2 is paying rent around Rs.83/- per sq.ft since April, 2009. The witness, however, deposed that the said amount is inclusive of maintenance, municipal taxes and other charges but on repeated questions being put to him with regard to the production of the lease document or the agreement under which the said defendant No.2 was inducted as a tenant in the Lenin Sarani property, Mr. Sharma although assured but did not produce the sale deed. The relevant questions and answers in cross-examination are reproduced here in below:- "136. Would I be incorrect if I say that in terms of the document, Municipal Taxes are payable by Central Bank of India over and above the monthly rentals?/ The bank is not to pay the municipal taxes - those are to be borne by the landlord. 137. The relevant questions and answers in cross-examination are reproduced here in below:- "136. Would I be incorrect if I say that in terms of the document, Municipal Taxes are payable by Central Bank of India over and above the monthly rentals?/ The bank is not to pay the municipal taxes - those are to be borne by the landlord. 137. What is the maintenance charges payable in respect of that premises?/ Nothing. There is only the monthly rent which is payable. 138. I am suggesting it to you that Central Bank of India is liable to pay municipal taxes and maintenance charges to its landlord of the present Esplanade Branch?/ According to the lease agreement, these payments are to be made by the landlord himself. 139. I am further suggesting it to you that if you produce the lease document, your evidence would be falsified?/ I do not remember all the clauses of the lease agreement, but I have worked in that Branch and I have seen that no taxes are liable to be paid by the bank and on that basis I have made the statement. 140. Please produce the lease document on the next occasion?/ Yes, I will." 23. He also admitted that unlike the suit premises, there is no provision for parking cars at the Lenin Sarani property. He also admitted that additional facility by way of car parking and installation of generators without any additional cost as provided by the erstwhile landlord to the defendants are absent in the present premises. (Question Nos. 222 to 226, 228, 232, 241, 242, 243, 244 and 246 in Cross examination) Mr. Sharma relying upon three exhibits, being Exhibit Nos.4, 5, and 6 deposed that according to him, the rate of rent would be between Rs.40 and 50. He further stated that he did not try to ascertain and/or ascertained the rent for commercial areas that were prevailing in the year 2005. 24. Mr. Rudraman Bhattacharyya, the learned Counsel appearing on behalf of the defendants on the basis of the pleadings and the evidence on record submitted that on the basis of the letter written by the plaintiff on 20th October, 2005 in which the plaintiff had offered to extend the tenure of lease for a further period of 5 years at the rate of Rs.55/- per sq.ft. per month coupled with the averment made in the plaint in Paragraph 14 the plaintiff at the highest would be entitled to mesne profit at the rate Rs.55 per sq.ft. as on 1st of November, 2005. Even the claim on account of mesne profit at the rate of Rs.6100/- per day would come to Rs.1,83,000/- per month which if calculated on per sq.ft., it would be Rs.56,48/- a sq.ft. In criticising the report filed by the Mr. Sundar Lal Mitra, it was argued that the so-called valuer had failed to ascertain the municipal taxes payable on 1st November, 2005. The valuation based with reference to other properties as claimed are also not substantiated and no document in relation to such other properties were even disclosed by the said valuer. The valuer did not ascertain lack of facilities in the suit premises, namely, electric, sanitary and water supply. The valuer, in fact, did not visit the premises. He did not even assess the rate of rent on 1st November, 2005. The evidence of the Senior Manager on behalf of the Bank on the contrary would establish that such facilities were not available in the bank. Moreover, the two exhibits, namely, Exhibit Nos. 2 and 3 would show that the claim on account of mesne profit is excessive and inflated. The said two exhibits would show that Punjab National Bank was paying rent at the rate of Rs.20.25 per sq.ft. and Syndicate Bank was paying rent at the rate of Rs.35 per sq.ft at the material point of time. The valuer also did not even consider the letter of the landlord dated 20th October, 2005 which is almost coinciding with the date from which the mesne profit is to be determined. The said report of the valuer is based on surmises and conjectures and no evidence in respect of the said purported valuation was given by the valuer. Mr. Bhattacharya has relied upon the Hon'ble Division Bench judgment reported in 2011(2) CHN 522 (Cal) (Durgapur Projects Ltd. v. ABL International Ltd.) in order to demonstrate that such valuation report cannot be taken as authoritative and should be discarded. 25. Per contra, Mr. Mr. Bhattacharya has relied upon the Hon'ble Division Bench judgment reported in 2011(2) CHN 522 (Cal) (Durgapur Projects Ltd. v. ABL International Ltd.) in order to demonstrate that such valuation report cannot be taken as authoritative and should be discarded. 25. Per contra, Mr. Surojit Nath Mitra, learned Senior Counsel appearing on behalf of the plaintiff submitted that under the existing lease, it was the obligation on behalf of the lessee to maintain the building including repairing and to pay the pro rata share of municipal taxes to the lessor. The defendant No.2 was provided with generator and car parking facilities. The letter dated 20th October, 2005 on which much emphasis was laid by the defendant if read as a whole would establish that the rent payable by the defendant No.2 if it had continued beyond the expiry of lease would be Rs.120 per sq.ft. as determined by the valuer. It was argued that in the said letter, the plaintiff tentatively proposed to a rate of rent at the rate of Rs.55 per sq.ft. per month along with the following additional terms:- (i) 10 per cent of the rent as maintenance charges. (ii) Proportionate taxes of KMC. (iii) Interest free deposit of 18 months. (iv) 15 per cent enhancement after every 3 years. 26. The defendant No.2 did not accept the said terms. It was submitted that the PW 1 in his evidence has clearly stated that the plaintiff is claiming damages of Rs.6100/- per day on a tentative basis on and from 1st November, 2005 till the date of institution of the suit. In this regard, Mr. Mitra had relied upon Paragraphs 12 and 14 of the Plaint which are reproduced here in below:- "12. The plaintiff is further entitled to damages at the rate of Rs.6,100/- (Rupees six thousand and one hundred) per diem from 1st of November, 2005 i.e. the date on which the Lease Deed expired till the date of institution of the instant suit. It is pertinent to mention here that the plaintiff by a notice dated 17th January, 2006 has made a claim of the aforesaid amount for such illegal occupation of the suit premises to which the defendants has not replied to and are therefore illegally occupying the suit premises even after expiry of the aforesaid Lease Deed which has expired on 1st November, 2005. 14. 14. An enquiry is being made to ascertain damages caused by the defendants for its wrongful and illegal occupancy of the suit premises by the plaintiff. The plaintiff reserves it right to claim the damages at relevant point of time. Moreover, the plaintiff hereunder claims for an amount of Rs.11,65,100/- (Rupees eleven lacs sixty five thousand one hundred) as damages per diem set out hereunder:- Particulars Damages claimed per diem on and from 1st November, 2005 till the date of institution of the instant suit. [Rs.6,100 X 191 days = Rs.11,65,100/-]" 27. He further submitted that there is no dispute that the defendant would be required to pay a reasonable amount towards rent in order to continue with the possession as a lessee which would be evident from Paragraphs 17, 18 and 19 of the Written Statement. The said paragraphs are reproduced hereunder:- "17. That the contents of paragraph 12 of the Plaint are denied and disputed as basically incorrect for reason that the plaintiff has admitted through several annexure No.C, D and E to the plaint, that the Defendant No.2 is interested to continue in the tenancy, for which it is ready to pay higher rent at a reasonable rate and execute fresh lease on reasonable terms and conditions. The Defendant No.2 is not at all a trespasser in the suit premises. Hence there cannot be any claim for Damage for alleged illegal occupation. It is pertinent to point out, that admittedly, the tenure of the lease was up to 10.11.06, but the Plaintiff has alleged to have issued the notice in the month of September, 2005 i.e. 16.09.05 thereby made the alleged notice wholly illegal and consequently untenable. It is reiterated that the Defendant no.2 is not under illegal occupation of the suit premises. 18. That the contents of paragraph 13, 14 and alleged particulars under para 14 of the plaint are more repetition of the contents of paragraph 11 and 12 of the Plaint. Hence the contents of those two paras are denied and disputed. The specific reply in this written statement to para 11 and 12 of the plaint covers the answer of the Defendant No.2 to these two paras Nos. 13 and 14 of the Plaint. To avoid prolixity, the reply is not repeated. Hence the contents of those two paras are denied and disputed. The specific reply in this written statement to para 11 and 12 of the plaint covers the answer of the Defendant No.2 to these two paras Nos. 13 and 14 of the Plaint. To avoid prolixity, the reply is not repeated. However, it is specifically submitted, that the defendant no.2 is not occupying the suit premises wrongfully, nor the Plaintiff is suffering any loss at all. Hence the plea of Damage or enquiry thereof are unwarranted as well as uncalled for. The Plaintiffs sole moto is to gain maximum at whatever cost out of the suit premises by putting pressure upon the Defendant No.2, who is, however, not a verse to pay enhance rent at a reasonable rate. 19. That the contents of para 13 of the Plaint are not at all admitted. It is specifically submitted that the defendant no.2 is not wrongfully occupying the suit premises. It is equally incorrect that the defendant no.2 has adopted dilatory tactics to evade payment of the lawful dues of the plaintiff in violation of the contractual obligation. The defendant no.2 is ready to pay enhance rent at reasonable rate and not at the arbitrary as well as exorbitant rate as demand by the plaintiff. The plaintiff has neither given any reason or quantum of damage alleged to have likely to be suffered at its office at 3A Chowringhee Road, Kolkata - 700 013. There is no nexus between the alleged damage and the vacation of the suit premises by the defendant no.2. However, one thing is clear from the averments at paragraph 13 of the Plaint that there is admission of renewal of lease. The defendant no.2 is ready to renew the Lease - on reasonable fresh terms and conditions." 28-29. It was argued that the terms contained in the letter dated 20th October, 2005 cannot be taken to be the sole basis for the purpose of computing mesne profits in view of the fact that the terms and conditions mentioned in the said letter is an offer which a landlord is offering to an existing tenant for renewing the lease period. This cannot be the basis for creation of a new lease or tenancy. This cannot be the basis for creation of a new lease or tenancy. During cross-examination, the defendant on behalf of the bank stated that he is not aware of the proportionate tax payable in respect of the said tenancy. The plaintiff had demanded various things in the letter dated 20th October, 2005 apart from the basic rent of Rs.55 but such demand was not accepted by the bank. The witness of the bank during cross-examination admitted that if interest free deposit of 18 months was deposited in terms of the letter dated 20th October, 2005, the plaintiff would have earned approximately Rs.30,000/- per month by way of interest. The relevant questions and answers in this regard are reproduced here in below:- "166. I am showing you a letter dated 20th October, 2005 written by the plaintiff to the Central Bank of India. Did it say that the prevailing rate of interest in the area was Rs.55 per sq. ft. per month?/ They had demanded Rs.55 per sq. ft. as rent. 170. You can take it from me that the instant suit was instituted by the plaintiff sometimes in May, 2006?/ Might be. 172. The plaintiff also claimed interest free deposit of 18 months rent?/ I cannot remember all the terms of the said letter. 174. Kindly go through this letter. Do you find that apart from the claim for rent at the rate of Rs.55 per sq. ft. per month, the plaintiff also claimed maintenance charges and proportionate municipal rates and taxes as also interest free deposit of 18 months?/ Yes. It is written there. 175. Can you say what was the proportionate municipal taxes payable at that point of time?/ That I cannot say. 176. Do you find that the plaintiff had also claimed increment at the rate of 15 per cent after every three years?/Yes. 177. So, after taking into consideration all these factors, what could have been the gross rent of this premises?/ I am not aware of the proportionate tax payable and these were the things that they had demanded, but accepted by the bank at that time. 180. So, 18 months/ rent would be about 33 lakhs to 34 lakhs of rupees?/ That is so. 181. This 34 lakhs of rupees was to be deposited by the bank as interest free deposit?/ It was only a demand. But it was not accepted by the bank. 180. So, 18 months/ rent would be about 33 lakhs to 34 lakhs of rupees?/ That is so. 181. This 34 lakhs of rupees was to be deposited by the bank as interest free deposit?/ It was only a demand. But it was not accepted by the bank. This would have been. Then it might be. 184. What is the rate of interest for a long term fixed deposit?/ At present, it is around 9 per cent to 10 per cent. 185. So, I would be correct, If I say utilising 34 lakhs of rupees one can earn about Rs.3,40,000/- per year?/ It is simple mathematical calculation. 186. It is approximately Rs.30,000/- per month?/ If anybody deposits Rs.34,000/- at a time, then it can be. But on month to month basis the rate of interest and mode of calculation of interest will vary in comparison to the fixed term. 189. You will agree with me that by utilising 34 lakhs of rupees one can get about Rs.30,000/- per month as and by way of interest?/ I agree. If anybody deposits the said money at a time, then he can earn this money. 190. The plaintiff was claiming deposit of 18 months rent. Am I right?/ Yes. 191. The plaintiff was also claiming maintenance charges at the rate of 10 per cent of the rent which comes to about 5 rupees 50 paise per sq. ft.?/ Yes. This would have been applicable only when these demands were accepted by the bank. 192. Over and above such claim, the plaintiff had also wanted reimbursement of 50 per cent of the municipal rates and taxes. Am I correct? Yes." 30. The valuer who deposed on behalf of the plaintiff also stated that he visited three properties in the nearby locality in order to ascertain the actual rental value and such report was prepared after considering the original lease documents in relation to the said properties. The valuer had meticulously described the scope of work and the method he applied in determining the rate of rent with effect from 1st November, 2005. That there was no dispute to the tenanted area is also an admitted fact. The evidence would show that the bank did not complain of any lack of facilities. The owner of Subir Udyog provided lease deeds relating to Premises Nos.36A, 36B, 36C, 36D, Chowranghee Road having carpet area of 3100 sq.ft. That there was no dispute to the tenanted area is also an admitted fact. The evidence would show that the bank did not complain of any lack of facilities. The owner of Subir Udyog provided lease deeds relating to Premises Nos.36A, 36B, 36C, 36D, Chowranghee Road having carpet area of 3100 sq.ft. which was let out to ICICI Bank for a period of 9 years on a rent of Rs.114.50 per Sq.ft. per month including hire charges of fixture and fittings and Municipal Taxes. The said lease was executed on 12th January, 2004. The said property, according to the report of the valuer is situated on the eastern side of Chowranghee Road. The valuer followed the comparison method in the instant case. He added percentages for the advantages of the suit premises in comparison to Chowranghee Road property and deducted percentages for disadvantages of the suit premises in relation to other comparable units. After inspection of the suit premises, he ascertained the rent of the suit premises as on 1st November, 2005. The valuer was not asked to produce the copies of the lease deed in respect of the said premises although he deposed during cross-examination that he is in possession of such lease deeds. The witness on behalf of the defendant admitted that there was no formal complain with regard to the water supply to the premises and he, in fact, had even deposed any person entering into the bank could use the toilet. The defendant relied upon a communication from Allahabad Bank being Exhibit 6. The said communication dated 27th November, 2008 would show that the said Allahabad Bank had entered into an agreement dated 1st December, 2006 having an area of 1476 sq.ft. The said Bank is paying monthly rent of Rs.95940 which if reduced to the rents per sq.ft. would come to Rs.65 per sq.ft. per month with proportionate municipal tax. It is submitted that even if other evidence are ignored, the said letter from Allahabad Bank would clearly establish that the rent for per sq. ft. at the prevailing time would not have been less than Rs.120 per sq.ft. Mr. Mitra submits that the evidence of the deponent on behalf of the bank that Rs.83 per sq.ft. It is submitted that even if other evidence are ignored, the said letter from Allahabad Bank would clearly establish that the rent for per sq. ft. at the prevailing time would not have been less than Rs.120 per sq.ft. Mr. Mitra submits that the evidence of the deponent on behalf of the bank that Rs.83 per sq.ft. in respect of the Lenin Sarani property in the year 2009 inclusive of Municipal rates, taxes, maintenance, etc., cannot be accepted since the said deponent was unable to produce the document in spite of demand (Question Nos.136 to 140 in Cross-examination). It is submitted that Mr. Sharma during cross-examination was requested to produce the lease document of the present branch which he assured but did not produce. In view thereof, such evidence should not be accepted. In all likelihood, the said Rs.83 per sq. ft. is not inclusive of municipal rates or taxes or other charges which were unusual having regard to the location of the property. 31. It was, thus, argued by Mr. Mitra that even the municipal rates and taxes are not taken into consideration on the basis of the evidence adduced on behalf of the defendant, the rate of rent would not be less than Rs.75 per sq. ft. as on 1st November, 2005. 32. Mr. Mitra has relied upon the decisions reported in 2003(10) SCC 653 (Rajgopal(Dead) By Lrs. v. Kishan Gopal & Anr.) and 2003 (4) SCC 161 (Bondar Singh & Ors. v. Nihal Singh & Ors.) in support of his contention that in absence of specific pleading in the written statement on an issue, no evidence can be looked into in relation thereto. The aforesaid decisions were cited in order to negate the evidence on behalf of the defendant that the suit premises suffered from lack of facilities which plea was not taken in the written statement. Mr. Mitra has relied upon AIR 1963 Andhra Pradesh 42 (V 50 C 16) (Magunta Kota Reddy (died) & Ors. v. Pothula Chendrasekhara Reddy) for the proposition that Court can award mesne profits more than what is claimed in the plaint. 33. In dealing with the Durgapur Projects Ltd. (supra), Mr. Mr. Mitra has relied upon AIR 1963 Andhra Pradesh 42 (V 50 C 16) (Magunta Kota Reddy (died) & Ors. v. Pothula Chendrasekhara Reddy) for the proposition that Court can award mesne profits more than what is claimed in the plaint. 33. In dealing with the Durgapur Projects Ltd. (supra), Mr. Mitra has produced a copy of an order dated 11th March, 2011 passed by the Hon'ble Supreme Court in connection with the Special Leave Petition filed by A.B.L. International Ltd. from which it would appear that the Hon'ble Supreme Court has granted stay of the order of remand passed by the Division Bench. The relevant portion of the said order is reproduced here in below:- "Date: 11/03/2011 This petition was called on for hearing today. Upon hearing counsel the Court made the following ORDER Issue notice. In the meantime, there will be stay of the order of remand passed by the Division Bench of the Calcutta High Court." 34. The power of Court to grant mesne profits, over and above, the amount exactly claimed in the suit has been judicially recognised in Magunta Kota Reddy (supra) in which the learned Single Judge of the Anshra Pradesh High Court in relying upon a decision of our Court held that Court can award more than what is claimed. The relevant paragraphs in this regard are reproduced here in below:- "11. Firstly, it is contended that since in the plaint the plaintiff had claimed a definite amount in respect of past mesne profits, it was not open to the Court to grant a higher sum. It is pointed out that in the plaint mesne profits were claimed as specified in schedule B attached thereto. According to schedule B, so far as item 4 was concerned, the total amount of mesne profits claimed was Rs.790/- only, whereas the ultimate decree passed by the court below awarded more than five times that amount. As a subsidiary contention, it is argued that the lower Court was in error in allowing the amended claim by the plaintiff as per I.A. No.10 of 1952. 13. As a subsidiary contention, it is argued that the lower Court was in error in allowing the amended claim by the plaintiff as per I.A. No.10 of 1952. 13. Learned Advocate for the appellants relies strongly on the case of Baboojan Jha v. Byjnatn Putt Jha, ILR 6 Cal 472, where a Division Bench of the Calcutta High Court held that the general rule that a plaintiff cannot recover more than he claims in his plaint, ought not to be departed from except under special circumstances. In that case, the plaintiffs had claimed as mesne profits a sum of Rs.309/- for three years but the judgment-debtor was adjudged to be liable for about Rs.1,200/-. The learned Judges, however, pointed out that the plaintiffs in that case appeared to have been aware that the lands of which they sought possession were in the occupation of tenants paying as ascertained rent of Rs.103/- for plaintiffs share and on that basis the plaintiffs had demanded damages at that rate on account of the loss they had sustained from the wrongful possession of the defendant. The learned Judges seemed to draw a distinction between cases where the plaint states the amount of mesne profits approximately and cases where an exact amount is claimed. It will be seen that even in that case, the learned Judges did qualify the general proposition laid down by them by the words "except under special circumstances" and further, in that case, they took note of the fact that they plaintiffs were aware of the exact income from the lands during the relevant period. 14. That decision, however, was expressly dissented from by another Bench of the same High Court in Gauri Prosad Koondoo v. Reily, ILR 9 Cal 112. The point that the Court was called upon to decide in that case was whether the plaint having stated the amount of mesne profits claimed at a certain sum of money, and the decree having directed the amount to be ascertained in execution, the plaintiff-decree-holder was estopped from claiming anything in excess of the amount stated in his plaint. As affirmative of the above proposition, the case of ILR 6 Cal 472 was relied upon. As affirmative of the above proposition, the case of ILR 6 Cal 472 was relied upon. But the learned Judges proceeded to say: "We have consulted the learned Judges who passed that judgment, and we are authorised by them to state that they did not then intend to enunciate any general rule for adoption in such cases. We are therefore at liberty to deal with this case on its own merits." After referring to a number of cases including an earlier Full Bench decision of the Calcutta High Court and a Privy Council ruling, the learned Judges held that there in the original suit it was declared that the amount of mesne profits should be determined in execution, the plaintiff is not estopped from proving that he is entitled to a larger sum as mesne profits than that claimed in his plaint. In that context, the learned Judges also referred to Section 11 of the Court-fees Act which says that, in suits for mesne profits, or for immovable property and for mesne profits, if the profits or the amount decreed are or is in excess of profits claimed, the decree shall not be executed until the difference of fee has been paid. At the same time, the learned Judges observed that if it should appear that, in making his original claim for mesne profits, a plaintiff has special means of knowledge for determining the amount due, the judgment-debtor can fairly use as evidence against him his own statement as embodied in his plaint." 35. In my view, if the plaintiff deserves more than what he claimed in the suit equity demands that the plaintiff should be allowed what is just and fair and should not be denied all its legitimate dues on technical grounds. After all, Courts exist to do justice to the parties. Moreover, in the instant case, the defendant bank enjoyed the property even without paying a farthing till August, 2007 and, thereafter, also did not pay from January, 2008 till May, 2009 as mentioned here in above. 36. On the basis of the evidence on record, it would appear that the defendant was willing to continue with the tenancy after the expiry of the lease on payment of reasonable rents that may be determined by the Court. 36. On the basis of the evidence on record, it would appear that the defendant was willing to continue with the tenancy after the expiry of the lease on payment of reasonable rents that may be determined by the Court. The defendant continued its occupation of the said premises on and from 1st November, 2005 without payment of any rent and/or occupational charges until 2nd August, 2007 when in terms of an order passed by the Hon'ble Division Bench, the defendant agreed to deposit a sum of Rs.1,52,560/- with the Registrar and Rs.35,640/- towards occupational charges to the plaintiff with effect from 1st November, 2005. Thereafter, the defendant continued to deposit such amount in the manner as indicated above till December, 2007. However, after the dismissal of the appeal and till May, 2009, the defendant did not deposit any amount and by reason of an order passed on 21st February, 2013, the defendant on March 04, 2013 had deposited Rs.27 lakhs with the Registrar, High Court, Original Side on the basis of its own admission that the defendant would be required to deposit Rs.1,88,200/- per month for the aforesaid period under occupation, that is to say, from 1st November, 2005 till May, 2009. 37. The defendant has failed to substantiate with any cogent evidence that the offer that was given by the plaintiff in its letter dated 20th October, 2005 was unreasonable or excessive. The defendant did not even respond to such letter and gave any counter-offer. The premises in and around the locality in which the Allahabad Bank is situated would show that the Allahabad Bank was paying a basic rent of Rs.65 per sq. ft. The terms and conditions mentioned in the said letter would give an indication that if the maintenance charges and municipal rates and taxes are added, the incidence of rents would be between Rs.75/- to Rs.80/- (approximate) per month if not more. The valuer has deposed in relation to three properties out of which one property is nearer to the suit premises, namely, ICICI Bank where a lease was created in the year 2004 and the said bank is required to pay Rs.114.50/- per sq. ft. for the area under occupation. The defendant bank is, in fact, paying a rent of Rs.83 per sq. ft. in May, 2009 for the present tenancy which is at a distance as the crow flies. ft. for the area under occupation. The defendant bank is, in fact, paying a rent of Rs.83 per sq. ft. in May, 2009 for the present tenancy which is at a distance as the crow flies. The witness of the bank in spite of an opportunity being given has failed to produce the said lease deed of the Lenin Sarani property. The terms and conditions would be within the special knowledge of the bank. Mr. Rudraman Bhattacharya has relied upon a decision reported in 2011(2) CHN (Cal) 522 (Durgapur Projects Ltd. v. ABL International Ltd.) in which it was held that unless the primary evidence is produced and proved the contents of the report of the valuer cannot be accepted and treated as sacrosanct. During cross examination, Mr. Sundar Lal Mitra, the valuer, deposed that he is in possession of the lease deeds but was not asked to produce. Mr. Bhattacharya on the basis of the ratio laid down in Durgapur Projects (supra) submitted that no mesne profit could be awarded based on such unreliable report. It is true that Mr. Sundar Lal Mitra did not produce the said lease deeds but the evidence of Mr. Mitra has to be read with the other evidence on record. However, in assessing the mesne profits, in absence of definite and conclusive evidence, some guesswork may be applied on the basis of the available materials and the evidence on record in finally determining the mesne profits. There exists hardly any uniform and standard pattern of assessment in this regard. A comparative assessment of the nature, location, accessibility to the main road, facility, age, condition, etc., of the suit premises on the one hand and similar characteristics of the premises in surrounding area on the other hand, would be a relevant factor in assessing the mesne profit. 38. The duration of lease and the relationship of the parties could also be a relevant factor which would have a bearing in deciding the said issue as to mesne profits. 39. 38. The duration of lease and the relationship of the parties could also be a relevant factor which would have a bearing in deciding the said issue as to mesne profits. 39. Mesne profit is defined under Section 2(12) of the Code of Civil Procedure which is reproduced here in below:- "Mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession." 40. A person who is deprived of such a right to possess the property is not only entitled to receive possession of the property but also damages for wrongful possession from the person who had occupied the property wrongfully and illegally. The mesne profits are meant to be a compensation, which is penal in nature. The object of awarding a decree for mesne profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his property even though he was entitled to possession thereof. (Lucy v. Mariappa, 1979(3) SCC 150 (158); AIR 1979 SC 1214 (1219); Chittoori Subbanna v. Kudlappa Subbanna, AIR 1965 SC 1325 (1330-32): (1965) 2 SCR 661 ). 41. As a rule, the person in wrongful possession and the enjoyment of immovable property is liable for mesne profits. In assessing the mesne profits the test is not what the plaintiff has lost by being out of possession of property, but what the defendant gained, or might reasonably and with ordinary prudence have gained by such wrongful possession. (Harry Grey v. Bhagumian, AIR 1930 PC 82 ; Lucy v. Mariappa; (supra); David v. Thiagrajan, 1996 AIHC 1194 (1197-98). 42. A person wrongfully kept out of possession is entitled to recover not only the profits which the defendants could have made while in possession but also the loss that he (the plaintiff) has sustained by withholding of the possession. (Harry Grey v. Bhagumian, AIR 1930 PC 82 ; Lucy v. Mariappa; (supra); David v. Thiagrajan, 1996 AIHC 1194 (1197-98). 42. A person wrongfully kept out of possession is entitled to recover not only the profits which the defendants could have made while in possession but also the loss that he (the plaintiff) has sustained by withholding of the possession. The first principle to determine the mesne profits is the possession which has been wrongfully retained should not be a source of profit to the wrongful possessor and that he should be made to pay to the rightful owner any profit which he has made or could with should aim at doing justice between the parties having regard to all the circumstances of the case, the object being to see that the person wrongfully kept out of possession is put in the same position financially as if right had been done. (Daiglesh v. Babu Nandan, 39 I.C. 516) 43. Since mesne profit is in the nature of damages, no invariable rule governing their award and assessment in every case, can be laid down and the Court may mould it according to the justice of the case. (Lucy v. Mariappa (supra) at p.158 (SCC): 1219(AIR) 44. One of the principles which should be taken into consideration in determining the amount of mesne profits is the use to which the decree holder would have put the property if he himself was in possession. It must receive a liberal and purposive construction and the provisions relating to mesne profits is required to be construed in a manner that is just and equitable. 45. It is a fact that the bank was willing to continue with the tenancy and did not pay any amount after 1st of November, 2005 till 29th August, 2007 when a sum of Rs.32,03,760/- was deposited with the Registrar of Original Side, pursuant to an order passed by the Hon'ble Division Bench on 2nd August, 2007 for a period from 1st November, 2005 till August, 2007 on the basis of the admission on behalf of the bank before the Hon'ble Division Bench that a sum of Rs.1,88,200/- would have been the amount payable on and from 1st November, 2005 which clearly shows that the bank at least accepted that rent at the rate of Rs.55/- plus per sq. ft. ft. per month is payable for the area under occupation of the defendant on determination of lease. The said amount was paid till December, 2007 but no occupation charge was paid since January, 2008 till May, 2009 aggregating to a sum of Rs.27,00,000/-. The said amount was deposited with the Registrar only on 28th February, 2013. In view thereof, the plaintiff will be entitled to interest for 21 months for the initial period of default, 15 months for the subsequent period till May, 2009 when ultimately their possession was delivered to the decree-holder and, thereafter, till 28th February, 2013 when such balance amount was deposited. 46. In ascertaining the mesne profits for the aforesaid period, I think it would be just, proper and fair to take into consideration the letter of Allahabad Bank dated 27th November, 2008 being Exhibit 6, the lease agreement dated 12th January, 2004 which formed the part of the report of the valuer, namely, Exhibit C and the rate of lease rent being paid by the bank in respect of the Lenin Sarani property since May, 2009. The letter of the Allahabad Bank is an Exhibit on behalf of the bank. The witness on behalf of the bank deposed that the defendant bank is paying a sum of Rs.83/- per sq. ft. in respect of Lenin Sarani property including all charges. The lease deed was not produced in support of such statement in spite of demand during cross-examination of the said witness. The tenancy of ICICI at Chowranghee Road is nearby to the place where the defendant was initially occupying and presently occupying. It is true that the valuer did not produce the lease agreement in respect of the Chowranghee Road property although during cross examination, he said that he is in possession of the lease deed. The opinion given by the valuer in respect of the Chowranghee Road property, however, was not demolished in cross-examination. Even if it is assumed for the sake of argument that Rs.83/- was inclusive of municipal rates and taxes and the hiring charges for the fixtures and furniture then the basic rent of 1st November, 2005 could have been between Rs.60/- and Rs.65/- per sq. ft and not Rs.55/- which has been assiduously argued on behalf of the bank in order to deny any further liability. ft and not Rs.55/- which has been assiduously argued on behalf of the bank in order to deny any further liability. Moreover, the rate that was offered by the plaintiff to the bank and on which reliance was placed, is an offer to an existing tenant and it is not a case of fresh tenancy. The considerations are entirely different. On 1st November, 2005, it cannot be said that the plaintiff would only restrict its claim to Rs.55/- per sq. ft. as basic rent and could not claim any higher amount. In fact, such a construction would not only be inequitable but would give an undue advantage to the defendant who had unauthorizedly occupied the said premises after expiry of the period of lease till May, 2009 and thereby preventing the plaintiff from utilising the said premises gainfully. The plaintiff was prevented from beneficially enjoying the said property. In absence of any evidence to show Rs.83/- per sq. ft. inclusive of municipal rates and taxes and hiring charges for fixtures and furniture, this Court, on the basis of the evidence on record is inclined to hold that the basic rent for the Lenin Sarani property which is only 2-3 minutes walk from the suit premises would not have been less than Rs.70/- with all the general conditions usually attached to such type of lease, namely, enhancement of the rent at the rate of 15 per cent after every three years, maintenance charges, proportionate municipal rates and taxes and security deposit. In view thereof, on consideration of the aforesaid exhibits and deposition on behalf of the bank, this Court is inclined to hold that the plaintiff would be entitled to mesne profits at the rate of Rs.75/- inclusive of hiring charges for fixtures, furniture, municipal taxes and maintenance charges. The plaintiff is also entitled to interest at the rate of 6 per cent per annum, only on differential amount from 1st November, 2005 till August, 2007 and January 2008 till 27th February, 2013 together with costs of Rs.10,000/- and service tax for the amount already deposited. 47. After the judgment is delivered Mr. V. Raja Rao learned Counsel appearing for the Bank has fairly submitted that the amount already deposited with the Registrar may be released in favour of the plaintiff. 47. After the judgment is delivered Mr. V. Raja Rao learned Counsel appearing for the Bank has fairly submitted that the amount already deposited with the Registrar may be released in favour of the plaintiff. In view thereof the Registrar High Court Original Side is directed to encash the fixed deposits prematurely if the date of maturity has not yet arrived and release the proceeds of the fixed deposits in favour of the plaintiff after deducting the usual cost, charges and expenses. 48. Let the decree be drawn up expeditiously. Urgent xerox certified copy of this judgment, if applied, for be given to the parties on usual undertaking.