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2013 DIGILAW 2042 (DEL)

UCO Bank v. Ram Sarup Kapur

2013-10-23

RAJIV SAHAI ENDLAW

body2013
Judgment : Rajiv Sahai Endlaw, J. 1. The appeal impugns the judgment and decree, dated 02.04.2012 in CS No.102/2010 (Unique Case ID No.02401C0321682007) of the Court of Additional District Judge (3), North, Tis Hazari Courts, Delhi, of recovery of mesne profits / damages for use and occupation against the appellant bank. 2. Notice of the appeal was issued and vide ex parte ad-interim order dated 25.07.2012, subject to the appellant bank depositing the entire decretal amount along with interest and costs in this Court within two weeks, the execution of the impugned judgment and decree was stayed. Vide subsequent order dated 30.10.2012, the appeal was admitted for hearing and the earlier ex parte ad-interim order made absolute till the disposal of the appeal. The respondents / plaintiffs filed CM No.1142/2013 for release of the decretal amount deposited by the appellant bank. During the pendency of the said application mediation between the parties was attempted but which was unsuccessful. Thereafter when CM No.1142/2013 was listed for consideration, with the consent of the counsels, the arguments on the appeal itself were heard and judgment reserved; however since the Trial Court file had not been requisitioned till then, the same was called for. 3. The respondents / plaintiffs on 29.03.2007 instituted the suit from which this appeal arises, for ejectment of the appellant bank from the first floor of property No.1/2, Desh Bandhu Gupta Road, Paharganj, New Delhi earlier in the tenancy of the appellant and after determination of the said tenancy and for recovery of arrears of rent and for mesne profits / damages for use and occupation with effect from 01.11.2006 at the rate of Rs.1,50,000/- per month. 4. The appellant bank contested the suit by filing a written statement and to which a replication was filed by the respondents / plaintiffs; along with the replication an application under Order 12 Rule 6 of the CPC for a decree for ejectment on admissions was also filed. 5. The learned ADJ vide order dated 19.10.2010 allowed the said application under Order 12 Rule 6 of the CPC and passed a decree on admissions of ejectment of the appellant bank from the premises aforesaid, keeping the suit alive qua the claim of the respondents / plaintiffs of arrears of rent and mesne profits / damages for use and occupation. 6. 6. The appellant bank preferred RFA No.46/2011 to this Court against the said decree for ejectment. The said appeal came up for consideration first on 21.01.2011 when the counsel for the appellant bank instead of challenging the decree of ejectment stated that the appellant bank was not pressing the appeal on merits but only seeking six months time to vacate the premises and was without prejudice to the rights and contentions offering to pay a sum of Rs.50,000/-per month as charges for use and occupation from the date of the impugned judgment and till 31.07.2011, time till which date was sought to vacate the premises. The said statement of the appellant bank was accepted even though the respondents/landlords were not represented on that day and the appeal dismissed giving such time to the appellant bank to vacate the premises. On application of the appellant bank the time for vacation of the premises was extended till 30.10.2011, this time in presence of respondents/landlords and subject to payment of use and occupation charges for said three months @ Rs.55,000/-per month, without prejudice to determination of mesne profits. The appellant bank is informed to have so vacated the premises. 7. The learned ADJ, qua the claim surviving of the respondents / plaintiffs vide order dated 16.12.2010 framed the following issues: “1. Whether the plaintiff is entitled to receive arrears of rent in respect of the suit property. If so, for which period? OPP 2. Whether the plaintiff is entitled to mesne profits / damages for use and occupation of the suit premises. I so, at what rate and for which period? OPP 3. Whether the plaintiff is entitled to pendente-lite and future interest. If so, at what rate? OPP. 4. Relief.” 8. The respondents / plaintiffs besides examining one of themselves, examined the witness from the Union Bank of India (UBI) in occupation of premises No.2/2, Desh Bandhu Gupta Road, Paharganj, New Delhi. The appellant bank examined Senior Manager of the concerned Branch and the draftsman of the site plan of the premises as its witness. 9. OPP. 4. Relief.” 8. The respondents / plaintiffs besides examining one of themselves, examined the witness from the Union Bank of India (UBI) in occupation of premises No.2/2, Desh Bandhu Gupta Road, Paharganj, New Delhi. The appellant bank examined Senior Manager of the concerned Branch and the draftsman of the site plan of the premises as its witness. 9. The learned ADJ, vide the impugned judgment has decreed the suit of the respondents/plaintiffs against the appellant bank for recovery of, i) rent for the month of September, 2006 of Rs.3,327/-, ii) rent for the month of October, 2006 of Rs.3,659.70p, iii) mesne profits / damages for use and occupation from 01.11.2006 till 31.08.2009 at Rs.85,000/- per month, iv) mesne profits / damages for use and occupation with effect from 01.09.2009 till delivery of possession of Rs.1,10,000/- per month; and, v) interest on the entire aforementioned amount at 10% per month from 01.11.2006 till realization and costs, holding / observing / finding: (i) that the rent for the months of September and October, 2006 as aforesaid were due; (ii) that the appellant bank having failed to vacate the premises inspite of determination of its tenancy from the midnight of 31st October, 2006 was liable to pay mesne profits / damages for use and occupation w.e.f. 1st November, 2006; (iii) that it was the uncontroverted testimony of the respondents / plaintiffs that the first floor of property No.2/2, Desh Bandhu Gupta Road, Paharganj, New Delhi having an area of 2395 sq. ft. ft. was occupied by UBI at a monthly rent of Rs.1,18,590/-; (iv) that the suit premises were in the vicinity of the premises occupied by UBI; (v) that it was not challenged that the construction of the two properties was done approximately at the same time and thus the suggestion given by the appellant bank to the respondents/plaintiffs in cross-examination that the premises in their tenancy was not in a good condition was of no consequence; (vi) that the admission of the respondents / plaintiffs that they had not carried out any repair in the premises after the same were let out was also of no consequence since it was never the case of the appellant bank that the property was in a dilapidated condition or required urgent repairs or was not capable of fetching a rent similar to that being fetched by other properties in the locality; this plea was taken only as an afterthought for the first time at the stage of evidence; (vii) that mere cracks in plaster as was deposed by the witness of the appellant bank neither makes the building dilapidated nor the same reduces the market value or rental value of the property; had the suit property been in a dilapidated condition, the appellant bank could not have operated therefrom; and, (viii) that since UBI was paying rent of Rs.1,18,590/-with effect from 01.09.2008, the mesne profits of the suit property for the period from 01.11.2006 till 31.08.2009 were assessed at Rs.85,000/- per month. 10. The counsel for the appellant bank has argued: (a) that the subject premises were initially taken on rent by the appellant bank in the year 1970; (b) that Sh. Mahinder Kumar Kapur one of the respondents / plaintiffs in his cross-examination admitted that the respondents / plaintiffs had not carried out any repair to the premises after the same were let out; (c) that there is a distance of 1 Km. Mahinder Kumar Kapur one of the respondents / plaintiffs in his cross-examination admitted that the respondents / plaintiffs had not carried out any repair to the premises after the same were let out; (c) that there is a distance of 1 Km. between the subject premises and the premises in the tenancy of the UBI and the impugned judgment wrongly proceeds on the premise that because of the municipal number of subject premises being 1/1, Desh Bandhu Gupta Road, Paharganj, New Delhi and of the premises in the occupation of UBI bearing No.2/2, Desh Bandhu Gupta Road, Paharganj, New Delhi they were in vicinity; (d) that the lease in favour of the UBI was dated 30.03.2009; (e) no leases of any other properties in the vicinity had been proved; (f) that there were inconsistency in paras No.23 & 24 of the impugned judgment; with para No.23 recording that the UBI was paying rent at the rate of Rs.49.41p per sq. ft. till 31.08.2008 when the rent was enhanced and para No.24 recording that the rent was enhanced with effect from 01.09.2009; (g) Reliance is placed on Union of India Vs. M/s Banwari Lal & Sons (P) Ltd. AIR 2004 SC 1983 noticing different methods of valuation of property; and, (h) that no valuation report of the said property had been proved. RFA No.306/2012 Page 9 of 18 11. Per contra, the senior counsel for the respondents / plaintiffs has argued: (I) that in RFA No.46/2011 filed by the appellant bank against the decree for ejectment, no notice was issued to the respondents / plaintiffs and the same was dismissed granting time to the appellant bank to vacate the premises; (II) that the appellant bank neither in response to the notice of termination of tenancy nor in the written statement stated that the premises were dilapidated or were in need of any repair or that the respondents / plaintiffs were not entitled to damages for use and occupation at the rate of Rs.1,50,000/-per month for the said reason and no issue also to the said effect was framed; and, (III) that none of the arguments raised before this Court has any basis in evidence and the sole witness of the appellant bank had also not deposed so. 12. 12. I have perused the Trial Court record and find: (A) The respondents / plaintiffs in the plaint had claimed mesne profits / damages for use and occupation at Rs.1,50,000/-per month without reference to any particular letting in the vicinity at the said rate. The appellant bank in its written statement merely denied the claim of the respondents / plaintiffs for mesne profits at the rate of Rs.1,50,000/- per month without giving any reason therefor. The respondents / plaintiffs in their replication also are not found to have given any instance of letting in the vicinity in support of the claim for mesne profits at the rate of Rs.1,50,000/- per month; (B) Sh. Mahinder Kumar Kapur one of the respondents / plaintiffs in his affidavit by way of examination-in-chief deposed, i) that the area of the subject premises was approximately 2400 sq. ft.; ii) that the premises were situated in a highly commercial locality; iii) proved the site plan of the subject premises which though does not contain the area of the premises but shows the dimensions thereof; iv) that similar premises situated at first floor of property No.2/2, Desh Bandhu Gupta Road, Paharganj, Delhi on the same road having an area of 2395 sq. ft. was occupied by UBI at a monthly rent of Rs.1,18,590/-; v) that the construction of the subject premises and the premises in occupation of UBI was similar and of the same time and quality; and, vi) proved as Ex.PW1/2 the letter issued by UBI certifying that they were paying Rs.1,18,590/-towards monthly rent of premises having covered area of 2395 sq. ft. on first floor of 2/2 Desh Bandhu Gupta Road, Paharganj, New Delhi; (C) In his cross-examination, a) though he was given a general suggestion that the site plan proved by him was incorrect but without suggesting as to what was wrong with the site plan and without showing any correct site plan; b) he admitted that no repairs had been carried out of the premises since letting; c) he denied the suggestion that the premises could not be let out at Rs.1,50,000/-per month; d) he admitted that he had not filed any document regarding the rent of similar premises at the time of filing of the suit; and, e) he was suggested that the area of the premises mentioned/deposed by him was incorrect, again without mentioning as to what was the correct area. (D) The Assistant Manager of the UBI examined by the respondents / plaintiffs proved the Rent Receipt of payment of rent of the first floor of premises No.2/2 Desh Bandhu Gupta Road, Paharganj, New Delhi in occupation of the said bank as Ex.PW2/1 and the registered lease deed in favour of the said bank as Ex.PW2/2 and deposed that the area of the premises in its occupation was 2395 sq. ft. In cross-examination by the appellant bank, he was suggested that the rent being paid by UBI was not the prevalent rent but which suggestion was denied. (E) A perusal of the lease deed Ex.PW2/2 of the premises in occupation of UBI shows: (i) the same to be of mezzanine and first floor ad-measuring 2395 sq. ft. of property No.2/2, Desh Bandhu Gupta Road, Paharganj, New Delhi and the UBI to have agreed to pay rent from 01.09.2008 to 31.08.2013 at the rate of Rs.1,18,590/- per month; (ii) UBI to have agreed to reimburse to the landlord 50% of the municipal tax; and, (iii) a site plan annexed to the said lease deed shows the nature of the premises to be the same as in the site plan filed by respondents/plaintiffs of the subject premises. (F) The Senior Manager of the appellant bank in his affidavit by way of examination-in-chief, i) though deposed that the site plan of the premises filed by the respondents / plaintiffs was not correct and the measurements mentioned therein were also not correct but neither proved any site plan of his own nor stated as to what were the correct measurements; ii) stated that the respondents / plaintiffs had never repaired the premises since the inception of the tenancy; iii) stated that the premises were very old and in a dilapidated condition due to non maintenance by the respondents / plaintiffs; iv) stated that the prevalent rent in the locality was not Rs.1,50,000/- per month; and, v) purported to prove a report regarding the condition of the premises but which was not admitted into evidence. (G) In cross-examination, he deposed that, a) though there were more than 20 banks in Paharganj but he had not made enquiry about the rent being paid by any of them; b) he had not made any enquiries from the UBI also; c) that he could not say what rent the suit premises could fetch; and, d) that the subject premises were in possession of the appellant bank since the year 1970. (H) A draftsman examined by the appellant bank proved the report prepared by him on the condition of the premises with photographs and the site plan and which site plan though gives dimensions, does not mention the area of the property. The dimensions given in the site plan of the appellant bank however are near about the same as in the site plan of the respondents / plaintiffs. In cross-examination, he admitted that he was not an architect and save for a diploma in draftsmanship has no other qualification. 13. In the aforesaid state of evidence, no basis is found for the arguments raised by the counsel for the appellant bank, i) of the rent being paid by UBI being not a true measure of the rate of mesne profits for the reason of the two premises being situated at a distance of 1 Km.; neither is there any suggestion to the witnesses of the respondents / plaintiffs in this regard nor has the witnesses of the appellant bank deposed so; ii) of there being any other difference in the two premises; again there is no evidence thereof. I may record that though the counsel for the appellant bank had objected to the proof of the lease deed of the UBI as to the mode of proof but the same is found to be a photocopy certified by the Manager of the UBI as the true copy of the certified copy of the registered lease deed. The least which the appellant bank could have done to discredit the same, if there was any doubt with respect thereto, was to make enquiries from the UBI and which admittedly was not done. The least which the appellant bank could have done to discredit the same, if there was any doubt with respect thereto, was to make enquiries from the UBI and which admittedly was not done. The respondents / plaintiffs in any case independently of the said lease deed also have proved the factum of the rate of rent and the area of the premises in occupation of UBI from the oral testimony of the Assistant Manager of the UBI and of which there is no contradiction. 14. I may mention that there indeed is some inconsistency in the impugned judgment as to the date from which UBI is paying the rent of Rs.1,18,590/-for the premises in its occupation and the Learned ADJ in the impugned judgment has awarded mesne profits to the respondents / plaintiffs on the basis of the said rate with effect from 01.09.2009 only. However a perusal of the lease deed shows the said rate to be effective with effect from 01.09.2008. On the basis thereof the respondents / plaintiffs ought to have been entitled to mesne profits at the said rate from 01.09.2008 and not from 01.09.2009. The prejudice if any caused by the said inconsistency in the judgment is to the respondents / plaintiffs only and not to the appellant bank and the appellant bank has no cause to make a grievance with respect thereto and if heard to make a grievance, would be to its own detriment only. 15. No error can thus be found in the impugned judgment and decree insofar as, on the basis of rent being paid by another nationalized bank for comparable premises, awarding mesne profits at the rate of Rs.1,10,000/-per month to the respondents / plaintiffs with effect from 01.09.2009 till the date of vacation. 16. The only question which remains for adjudication is whether the learned ADJ, on the basis thereof was correct in assessing mesne profits from 01.11.2006 till 31.08.2009 at the rate of Rs.85,000/- per month. With respect to the said period also, as aforesaid, there could be no grievance for the mesne profits from 01.09.2008 till 31.08.2009 for which period UBI was paying rent at Rs.1,18,590/-only for similar premises and qua which the error aforesaid has occurred in the judgment to the prejudice of the respondents / plaintiffs. With respect to the said period also, as aforesaid, there could be no grievance for the mesne profits from 01.09.2008 till 31.08.2009 for which period UBI was paying rent at Rs.1,18,590/-only for similar premises and qua which the error aforesaid has occurred in the judgment to the prejudice of the respondents / plaintiffs. The grievance if any is thus found to be for the period 01.11.2006 to 31.08.2008 only i.e. for about 22 months. 17. Though the learned ADJ has not given any reason for arriving at a figure of Rs.85,000/- per month but a mathematical calculation shows the same to be 29.4% lower than the rate awarded from 01.09.2009. No error can be found therein also as judicial notice can be taken of at least 15% increase in rent of commercial properties every three years. 18. As far as the reliance by the counsel for the appellant bank on the judgment cited is concerned, the same is in the context of determination of compensation under the Land Acquisition Act, 1894. The observations therein, of there being no claim for mesne profits for the period for which time was given by the Court to vacate the premises can have no application to the facts of the present case. It cannot be lost sight of that the appeal preferred by the appellant bank against the decree for ejectment was dismissed and time to vacate the premises without issuing even notice of the appeal to the respondents / plaintiffs was granted on compassionate grounds and without affecting the right of the respondents / plaintiffs to mesne profits. This is abundantly made clear in subsequent order dated 29th July, 2011 in RFA No.46/2011. 19. The impugned judgment thus calls for no interference. 20. However the award of interest at the rate of 10% per annum on the arrears of mesne profits from 01.11.2006 till realization is not apposite. The interest should be on the arrears of mesne profits for each month from the end of the month from which the mesne profits are due and till the date of payment. Save for the said modification, the appeal is dismissed with costs in favour of the respondents / plaintiffs. Counsel fee assessed at Rs.20,000/- 21. Decree sheet be drawn up. 22. The amount deposited by the appellant bank in this Court be forthwith released to respondents/plaintiffs/decree holders.