JUDGMENT : Sanjay Kumar Dwivedi, J Heard Mr. Rohit Roy, learned counsel for the appellants and Mr. P.A.S. Pati, learned counsel for the respondents-bank. 2. This first appeal has been filed against the judgment dated 23.01.2010 decree signed on 05.02.2010 passed by learned Sub Judge-II, Ranchi in Title (Eviction) Suit no. 07 of 2005 particularly in so far as it relates to the finding given on issues nos. VI & VII i.e. Entitlement of the Plaintiffs to Damages and Mesne profit for occupation of the suit property by the defendants beyond period of lease. 3. The appellants/plaintiffs are landlords of premises described in the schedule to the plaint. According the appellants/plaintiffs on the request of the respondents/defendants the appellants/plaintiffs let out the suit premises described in the schedule of the plaint to the defendants for a fixed period of five years commencing from 01.10.1998 and ending with 30.09.2003 both dates inclusive. The said terms of lease was recorded in a registered deed of lease dated 19.11.2001. The monthly rent of the premises was fixed at Rs. 17,276/- There were two sets of landlords one set of the landlords was the plaintiffs and another set of landlords was Daya Ram Budhia, Basudeo Budhia and Sawarmal Budhia. The second set of landlords also leased out their premises, which is adjacent to the premises in suit to the defendants. Lease of both the premises were given by virtue of the same deed of lease dated 19.11.2001. However two leases one by the plaintiffs and the second by another set of landlords were completely separate and distinct. The rent of the premises of the second set of landlords was Rs. 8,638/- per month. The second set of landlords have also filed a separate suit against the defendants for eviction. According to the appellants/plaintiffs even after expiry of the lease the respondents/defendants did not vacate the suit premises. The defendants/respondents approached the appellants/plaintiffs for a fresh lease, which was not accepted by the appellants/plaintiffs. In view of the above facts and pleadings the suit was instituted under the provisions of Section 11(1) of Bihar Building (Lease, Rent & Eviction) Control Act, 1982. The defendants/respondents approached the appellants/plaintiffs for a fresh lease, which was not accepted by the appellants/plaintiffs. In view of the above facts and pleadings the suit was instituted under the provisions of Section 11(1) of Bihar Building (Lease, Rent & Eviction) Control Act, 1982. On the above terms it was prayed in the suit that a decree be passed against the respondents/defendants for their eviction from the suit premises and respondents/defendants may be directed to quit and vacate the suit premises failing which the appellants/plaintiffs may be put in khas possession of the premises through the process of court by evicting the defendants. A decree for Rs. 48,65,000/-being the damages for use of occupation of the premises from 01.10.2003 to 01.10.2007 be passed. The cost of the suit was also awarded and Mesne profit @ Rs. 5000/- per day from 01.10.2007 till the defendants vacate the property in suit be passed. 4. The respondents/defendants had appeared and filed their written statement. In the written statement the respondents/defendants taken the ground that the suit is not maintainable. The suit is barred by principles of waiver, estoppel and acquiescence. The cause of action as mentioned in the plaint is concocted and for the purpose of the suit. The facts which are mentioned in the paras 1, 2, 3 & 4 of the plaint are admitted meaning thereby that the respondents/defendants have admitted that the appellants/plaintiffs are the landlords of the suit premises let out the defendants for a fixed period of five years commencing from 01.10.1998 and ending with 30.09.2003 both dates inclusive through registered lease deed dated 19.11.2001 on the terms inter alia of the lease for monthly rent of the premises of Rs. 17,276/- It was denied that there were two sets of landlord as because there is no physical demarcation of the building which will go to show that the buildings are separate and both the buildings are owned and possessed by two different sets of landlord. Secondly, if there are two separate landlords then there should have been two sets of lease but in the instant suit there is only one set of lease executed by all the appellants/plaintiffs. The respondents/defendants was inducted as tenant in respect of suit premises for a period from 01.10.1998 to 30.09.2003. The lease agreement made between the appellants/plaintiffs and respondents/defendants was registered at District Sub-Registrar office, Ranchi on 19.10.2001. The respondents/defendants was inducted as tenant in respect of suit premises for a period from 01.10.1998 to 30.09.2003. The lease agreement made between the appellants/plaintiffs and respondents/defendants was registered at District Sub-Registrar office, Ranchi on 19.10.2001. Keeping in view of previous renewal, the defendants again requested for renewal of lease for further period of five years commencing from 30.09.2003 to 30.09.2008 by his letter dated 19.06.2003 which has been sent to the plaintiff before expiry of the lease period which was received by the appellants/plaintiffs on 20.06.2003 but the appellants/plaintiffs slept over the matter and surprisingly by letter dated 01.10.2003, the appellants/plaintiffs requested the respondents/defendants to vacate the premises. It was pleaded on behalf of the respondents/defendants that the aforesaid letters of the appellants/plaintiffs is illegal and unjustified as because the respondents/defendants have offered for renewal of lease period of three months prior to the expiry of lease as per terms and conditions of lease agreement. The respondents/defendants are not liable to be evicted from the suit premises under Section 11(1) of Bihar Building (Lease, Rent & Eviction) Control Act, 1982. It was further pleaded that none of the conditions are attracted against the respondents/defendants which would be liable for their eviction because neither there is a breach of conditions of the tenancy or the conditions of the building has materially deteriorated nor the premises is required by the appellants/plaintiffs reasonably and in good faith. 5. The respondents/defendants is body corporate and is public institution and have a public dealing since opening of the bank i.e. 42 years since 1964 in the suit premises and have never been a defaulter in any respect and is ready and willing to renew the lease for further period of five years and the appellants/plaintiffs offer dated 02.05.2006 to the respondents/defendants wherein the appellants/plaintiffs have agreed for a fresh lease to the respondents/defendants on a monthly rent of Rs. 24/- per square feet and said proposal is under the active consideration of the defendant and as such in view of the matter the present suit was not maintainable. 6. After amendment of the plaint the respondents/defendants have filed their additional written statement and has stated that as per the deed of lease the respondents/defendants is not liable to pay damages @ Rs. 6. After amendment of the plaint the respondents/defendants have filed their additional written statement and has stated that as per the deed of lease the respondents/defendants is not liable to pay damages @ Rs. 5,000/- per day if the respondents/defendants failed to vacate the suit premises after expiry of the period of lease i.e. with effect from 01.10.2003 as claimed by the appellants/plaintiffs. It was further pleaded on behalf of the respondents/defendants that it is settled principle of law that a lessee or tenant is require to pay rent according to the last paid rent till he is evicted in pursuance of the decree. The alleged claim of damage @ of Rs. 5000/- per day is not only arbitrarily but illegal void and not enforceable. It was further pleaded that valuation of the suit is not correct. The appellants/plaintiffs are neither entitled to eviction of the respondents/defendants nor for realization of the alleged damages to the tune of Rs. 48,65,000/- as falsely alleged. The respondents/defendants further pleaded that appellants/plaintiffs are not entitled to any relief and the suit is liable to be dismissed. 7. On the above pleadings the court below has formulated following issues which reads as under:- (i) Is the suit maintainable in its present form? (ii) Is there any cause of action for the suit ? (iii) Is the suit barred by principle of Waiver, estoppel and acquiscences? (iv) As to whether the defendants are liable to be evicted from the suit premises after expiry of the lease on 30th September, 2003 under Section 11(1) of Bihar Building (Lease, Rent & Eviction) Control Act, 1982? (v) As to whether the defendant can be evicted from the suit premises which is the portion of the premises of schedule of the Lease deed and has no separate identity as schedule-A and B of the lease deed are not separate to each other because there is no physical demarcation of the building as mentioned in the lease deed? (vi) As to whether the Plaintiff is entitled for a decree of Rs. 48,65,000/- being the damages for use and occupation of the premises from 01.10.2003 to 01.10.2007? (vii) As to whether the Plaintiff is entitled for mesne profit @ Rs. 5000/- per day from 01.10.2007 till vacation of suit premises by defendants? (viii) As to what relief or reliefs the Plaintiffs are entitled to? 48,65,000/- being the damages for use and occupation of the premises from 01.10.2003 to 01.10.2007? (vii) As to whether the Plaintiff is entitled for mesne profit @ Rs. 5000/- per day from 01.10.2007 till vacation of suit premises by defendants? (viii) As to what relief or reliefs the Plaintiffs are entitled to? The appellants/plaintiffs examined two witnesses as P.W.1 and P.W.2 namely, Ashok Kumar and Bishnu Kumar Budhia and respondents/defendants examined two witnesses as D.W.1 and D.W.2, namely, Satish Kumar and Narpati Gagrai. 8. On behalf of the appellants/plaintiffs three documents were exhibited i.e.(i) Ext-1 C.C of Lease deed dated 19.11.2001 (ii) Ext-2 Advocate’s Notice dated 10.09.2004 (iii) Ext. 2/A Signature on Advocate’s Notice. The respondents/defendants exhibited five documents i.e. (i) Ext-A Notice (ii) Ext-B Carbon Copy of Letter dated 19.06.2003 (iii) Ext-C Advocate’s Notice (iv) Ext-D Letter dated 24.09.2003 (v) Ext-E Letter dated 29.01.2005. 9. While deciding the issue nos. 4 and 5 learned court below taken the evidence of P.Ws.1, 2 and D.Ws. 1, 2 and exhibited and discussed minutely and came to the finding that the lease deed has been determined on 30.09.2003 and though letters have been issued by the bank (Ext-C, Ext-B, Ext-E) to make a fresh lease deed for the premises in question but the appellants/plaintiffs is not bound to renew the lease or to enter into a fresh lease deed with the defendant bank as mentioned in their aforesaid letters, Section 11 of Bihar Building (Lease, Rent & Eviction) Control Act, 1982 deals with eviction of the tenants and there is one mode of eviction of tenants which is referred in Section-11(1) (E) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 and according to it a tenant who is in possession of any building he may be evicted if the tenant held on a lease for a specified period and he may be evicted on the expiry of the period of the tenancies. In view the aforesaid facts the trial Court came to the finding that the respondents/defendants are in possession of the suit property which is separate tenancy and a separate building/premises for which the respondents/defendants are tenant of the appellants/plaintiffs and the lease deed has already been determined on 30.09.2003 and thus the defendants are liable to be evicted from the suit premises after expiry of the lease on 30.09.2003 under Section-11(1) (E) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 and accordingly these issues were decided by the trial Court in favour of the appellants/plaintiffs. 10. Mr. Rohit Roy, learned counsel appearing for the appellants submits that so far as the findings with regard to issue nos. 4 and 5 are concerned the appellants/plaintiffs is not aggrieved with the finding of the trial Court. So far as issue nos. 6 and 7 are concerned, whereby the terms of lease proceeded in correct perspective by the trial Court and claim of the appellants/plaintiffs with regard to damages and Mesne profit has not been allowed as property in the suit. By way of referring discussion on the issue nos. 6 and 7 of the trial Court Mr. Rohit Roy, learned counsel for the appellants/plaintiffs submits that the trial Court has not considered the registered lease of deed which has been marked as Ext-1, wherein by way of clause 12 it was agreed upon the parties that on expiry of the lease efflux of time if the lessee fails to deliver the vacant possession of the said premises to the lessors, then in such a case the lessee shall be liable to pay damage costs of Rs. 5,000/- per day for such an illegal act. 11. Mr. Rohit Roy, learned counsel for the appellants/plaintiffs submits that this is a registered lease and the lease deed has been acted upon by the parties. He further submits that question of documents has been entered into between the parties has been acted upon its binding of both the parties in view of the terms and conditions prescribed in the lease deed. He further submits that in view of Section 18 (3) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982, wherein its prescribed that if the tenant fails to vacate the building the landlord is liable to be received such amount as may be determined by the court as daily compensation. He further submits that in view of Section 18 (3) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982, wherein its prescribed that if the tenant fails to vacate the building the landlord is liable to be received such amount as may be determined by the court as daily compensation. He further submits that this is a statutory provisions of the Rent Control Act. 12. He further submits that Section 74 of the Contract Act prescribed for reasonable compensation in case of breach of contract where penalty stipulated for referring to these two provisions. He also submits that statutory provisions cannot be over looked by the court. He further submits that lease deed is an admitted documents and terms and conditions are binding upon the parties. He further submits that Ext-1 is the lease which is registered lease document and notice is Ext-2 wherein it is clearly noticed to the effect to vacate the premises in question and damages is claimed. 13. Mr. Rohit Roy, learned counsel for the appellants/plaintiffs submits that so far as the judgments which has been relied by the respondents/defendants in the court below are distinguishable in the facts and circumstances of the case as in those judgments there is no discussion of Section 83 of the Act and Section 74 of the Contract Act. With regard to his argument about the damages he submits that the parties have provided for the precise amount. In view of the clause 12 of the lease agreement the appellants/plaintiffs are entitled to receive the damages @ Rs. 5,000/- per day. To substantiate his argument he relied a judgment in the case of Sir Chunilal V. Mehta and Sons Ltd. Vs. Century Spinning and manufacturing Co. Ltd. reported in AIR 1962 SC 1314 Para-11 which reads as under:- 11. A perusal of clause 14 clearly shows that the parties have themselves provided for the precise amount of damages that would be payable by the Company to the managing agents if the Managing Agency agreement was terminated before the expiry of the period for which it was made. The clause clearly states that the Managing Agent shall receive from the Company as compensation or liquidated damages for the loss of appointment a sum equal to the aggregate amount of the monthly salary of not less than Rs. The clause clearly states that the Managing Agent shall receive from the Company as compensation or liquidated damages for the loss of appointment a sum equal to the aggregate amount of the monthly salary of not less than Rs. 6,000 for and during the whole of the unexpired portion of the term of agency. Now, when parties name a sum of money to be paid as liquidated damages they must be deemed to exclude the right to claim an unascertained sum of money as damages. The contention of learned counsel is that the words "not less than" appearing before "Rs, 6,000" in clause 14 clearly bring in clause 10 and, there-fore, entitle the, appellant to claim 10% of the estimated profits for the unexpired period by way of damages. But if we accept the interpretation, it would mean that the parties intended to confer on the managing agents what is in fact a right conferred by Section 73 of the Contract Act and the entire clause would be rendered otiose. Again the right to claim liquidated damages is enforceable under Section 74 of the Contract Act and where such a right is found to exist no question of ascertaining damages really arises. Where the parties have deliberately specified the amount of liquidated damages there can be no presumption that they, at the same time, intended to allow the party who has suffered by the breach to give a go-by to the sum specified and claim instead a sum of money which was not ascertained or ascertainable at the date of the breach. Learned counsel contends that upon this view the words "not less than" would be rendered otiose. In our opinion these words, as rightly pointed out by the High Court, were intended only to emphasise the fact that compensation will be computable at an amount not less than Rs. 6,000 p.m. Apparently, they thought it desirable to emphasise the point that the amount of Rs. 6,000 p.m. was regarded by them as reasonable and intended that it should not be reduced by the court in its discretion. To substantiate his argument with regard to Section 74 of the Contract Act he relied a judgment in the case of Syed Ali Kaiser Vrs. Mstt. Ayesha Begu reported in AIR 1977 Calcutta 226 Para-6 which reads as under:- 6. To substantiate his argument with regard to Section 74 of the Contract Act he relied a judgment in the case of Syed Ali Kaiser Vrs. Mstt. Ayesha Begu reported in AIR 1977 Calcutta 226 Para-6 which reads as under:- 6. The next point urged by the appellant is that the learned Judge was wrong in decreeing the suit with regard to liquidated damages at the rate of Rs. 50/- per diem. Reference was made to Section 74 of the Contract Act which provides for the payment of reasonable compensation for breach of any contract whether or not actual dam-ages or loss is proved to have been caused thereby. It was contended that the distinction between the penalty and liquidated damages and all the intricacies of the English Common Law has been done away with by the provisions of Section 74 of the Indian Contract Act. It was accordingly argued that the court below was not right in not considering this aspect of the case. In the present case the lease provides for payment of rent at the rate of Rs. 1,150/- per month for the last five years of the period of lease as well as for the period of renewal. The finding being that there was no fraud or misrepresentation as to the period fixed in the lease, it must be held that the lease stood terminated on the expiry of the period mentioned in the lease, that is to say, on the 31st May, 1967. The defendant had been in unlawful possession of the property since that date. In the circumstances it cannot be said that the sum of Rs. 50/-per day will not be a reasonable compensation for the wrongful occupation of the defendant. In the absence of any material before the court we do not think that the learned Judge was unjustified in taking into account what the parties at the time of the contract agreed to be the reasonable compensation for the breach of any of the terms and conditions of the lease. To substantiate his argument with regard to conflict between law and equity he relied a judgment in the case of Raghunath Rai Bareja and Another Vrs. Punjab National Bank and Others reported in (2007) 2 SCC 230 para 29 which reads as under:- 29. To substantiate his argument with regard to conflict between law and equity he relied a judgment in the case of Raghunath Rai Bareja and Another Vrs. Punjab National Bank and Others reported in (2007) 2 SCC 230 para 29 which reads as under:- 29. Learned counsel for the respondent Bank submitted that it will be very unfair if the appellant who is a guarantor of the loan, and Director of the Company which took the loan, avoids paying the debt. While we fully agree with the learned counsel that equity is wholly in favour of the respondent Bank, since obviously a bank should be allowed to recover its debts, we must, however, state that it is well settled that when there is a conflict between law and equity, it is the law which has to prevail, in accordance with the Latin maxim “dura lex sed lex”, which means “the law is hard, but it is the law”. Equity can only supplement the law, but it cannot supplant or override it. Referring to this judgment he submits that it is the law which has to prevail in accordance with the Latin maxim “dura lex sed lex”, which means “the law is hard, but it is the law”. Equity can only supplement the law, but it cannot supplant or override it. He has also relied in the case of Bhagwan Das Mengi Vrs. Union of India reported in AIR 1961 Jammu and Kashmir 39 para-4 which reads as under:- (4) It was strenuously argued on behalf of the defendant appellant that the plaintiff was not entitled to Rs. 500/- P. M. as damages for use and occupation of the building which was rented out at Rs. 200/- P. M. The learned counsel submitted that the amount of Rs. 384/- P. M. allowed by the District Judge was penal. He has not, however, been able to cite any authority for the proposition that if the tenant after the termination of the lease remains in occupation of the premises without replying to the notice to vacate, served on him by the plaintiff landlord, he is not liable to pay damages to the plaintiff more than the amount of rent due from him. On the other hand, there are a number of rulings of different High Courts wherein it has I been laid down that if the tenant after the expiry of the lease remains in occupation of the premises in spite of the fact that the landlord served a notices on him to vacate and warned him that if he remains in occupation he will have to pay a specified sum as damages for wrongful use and occupation of the building, the defendant will be liable to pay that amount provided it is not penal and unconscionable. In support of this view reliance may be placed on an authority of the Lahore High Court, Sundar Singh v. Ram Saran Das, reported in AIR 1933 Lah 61 in which it has been held that the defendants’ having held over contumaciously the plaintiff was clearly entitled to damages. In case Kuman Das v.Radhika Singh., reported in AIR 1929 Pat 717 it was pointed out that a cause for the payment of the enhanced rent in a lease is not penal, when apparently it is not introduced into the lease to compel the performance of an act stipulated in the contract but is merely an option given to the lessee which he may accept or reject as he chooses; hence a stipulation to pay a higher rent if the lessee remains in occupation after the expiry of the lease is neither penal nor an unreasonable one. Parekh Nandlal v. Anant Govind, AIR 1940 Nag 140 is also to the same effect. In this ruling it has been held that where landlord gives notice to his tenant that he would be charged at an enhanced rate from a certain date and should vacate if he does not accept the enhancement and the tenant refuses to pay enhanced rent and he also refuses to vacate, he should be deemed to have accepted the enhanced rent in. spite of his refusal. Of course the Court has a discretion in the matter, and when the enhanced rate demanded is obviously penal and impossible the Court would not grant it. There is also a ruling of this Court, Jogeshwar Kumar v. Mst. Suwarn Kour, reported in 2 J & K LR 42 on this point. spite of his refusal. Of course the Court has a discretion in the matter, and when the enhanced rate demanded is obviously penal and impossible the Court would not grant it. There is also a ruling of this Court, Jogeshwar Kumar v. Mst. Suwarn Kour, reported in 2 J & K LR 42 on this point. It has been held therein that in considering what sum should be allowed for use and occupation or for damages for Contumacious holding over, the whole circumstances of the tenancy and sufficiency in point of time of notice have to be taken into consideration. In the present case the plaintiff has adduced evidence to-show that he was offered Rs. 500/- P. M. as rent for the premises in Case it was vacated by the defendant on expiry of the lease. But the defendant did not vacate the premises on the date specified in the notice and the plaintiff had to suffer loss on account of the occupation of the premises by the defendant after the expiry of the lease. The District Judge has neither discussed the evidence adduced by the plaintiff nor has he given any reasons for discarding it. The defendant has produced evidence to show that some houses in, that area are let out for lesser rent. That evidence is of no avail to the defendant in view of the fact that these houses are not in close vicinity nor have they the same accommodation and amenities. In view of the fact that there is evidence to show that the plaintiff was offered Rs. 500/- as rent P.M. and there is no reason to disbelieve this testimony of the witnesses of the plaintiff it is not necessary for us to determine what would be the fair rent of the house. The defendant did not reply to the notice and retained possession of the premises after the expiry of the lease and this caused a loss to the plaintiff to the extent of Rs. 500/- P. M. Under these circumstances the amount claimed by the plaintiff does not appear to be excessive and he is entitled to recover the same from the defendant. We therefore, allow the appeal of the plaintiff and decree his claim in full. The defendants’ appeal under these circumstances is dismissed. 500/- P. M. Under these circumstances the amount claimed by the plaintiff does not appear to be excessive and he is entitled to recover the same from the defendant. We therefore, allow the appeal of the plaintiff and decree his claim in full. The defendants’ appeal under these circumstances is dismissed. In view of the peculiar circumstances of the case we leave the parties to bear their own costs in this Court. 14. On the above ground Mr. Rohit Roy argued that the trial Court although come to the finding that the appellants/plaintiffs are required to compensation and it directed that the appellants/plaintiffs will be entitled for the damages at the same equivalent double rent subsequent to the decree of eviction till vacant possession given by respondents/defendants to the appellants/plaintiffs in execution of the decree of eviction passed by the court. He submits that although the issue nos. 6 and 7 was decided in favour of appellants/plaintiffs but it is not in accordance with the law. 15. Per contra, Mr. P.A.S. Pati, learned counsel appearing for the respondents/bank submits that there is no illegality in giving to the finding by the trial Court with regard to issue nos. 6 and 7. He further submits that the bank was the tenant of the appellants/plaintiffs since 1964 i.e. about 42 years. He further submits that the bank was public undertaking and dealing with the public and was operated with that premises since 42 years and that is why the bank requested the appellants/plaintiffs to further extend the lease period of five years whereas appellants/plaintiffs slept over the matter and sudden filed a suit. He submits that the trial Court has already decided that issue nos. 6 and 7 in favour of the appellants/plaintiffs and there is no cause of action to file the present appeal before this Court. 16. Mr. He submits that the trial Court has already decided that issue nos. 6 and 7 in favour of the appellants/plaintiffs and there is no cause of action to file the present appeal before this Court. 16. Mr. Pati, learned counsel for the respondents/defendants submits that in view of Section 2(h) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 for the sake of 2(h) quoted below:- 2(h) “tenant” means any person by whom, or on whose account rent is payable for a building and includes:- (i) A person continuing in possession after the termination of the tenancy in his favour; and (ii) A person who occupies a building as an employee of the landlord of such building either on payment of rent or otherwise; (iii) In the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and condition specified, respectively, in Explanations I and II to this clause, such of the aforesaid persons- (a) Spouse (b) Son or unmarried daughter, or where there are both, both of them; (c) Parents; (d) Daughter-in-law, being the widow of predeceased son, as had been ordinarily residing in the premises with such person as a member or members or his family up to the date of his death, but does not include any person, against whom an order or decree for eviction has been made. Relating to Section 2(h) he submits that in view of provisions made in section a person to continue the possession after the termination of the tenancy in his favour. He submits that in view of the provisions even lease period is expired and if there is no at all passing final decree by the competent court of law a person who is continue with the premises will be treated as tenant. He further submits that the bank continue as tenant thus the question of damages or Mesne profit the respondents/defendants is not entitled. To substantiate his argument with regard to damages or Mesne profit he relied a judgment in the case of Smt. Chander Kali Bai and Others Vrs. Shri Jagdish Singh Thakur and another reported in (1977) 4 SCC 402 para 4,8 and 12 which reads as under:- 4. Mrs. To substantiate his argument with regard to damages or Mesne profit he relied a judgment in the case of Smt. Chander Kali Bai and Others Vrs. Shri Jagdish Singh Thakur and another reported in (1977) 4 SCC 402 para 4,8 and 12 which reads as under:- 4. Mrs. Leila Seth, learned counsel for the appellants advanced a very able and succinct argument and urged only the following three points: “(1) The business for which the accommodation was required by the plaintiff was not “his business” within the meaning of clause (f) of sub-section (1) of Section 12 of The Madhya Pradesh Accommodation Control Act, 1961 hereinafter referred to as the Act. (2) That the rented shop in which the business of sweetmeat and namkin was carried on should have been held to be an accommodation “of his own in his occupation” within the meaning of the second part of the clause (f). (3) That no decree for damages could be awarded from the date of termination of the contractual tenancy. It could be awarded only from the date when an eviction decree was passed. 8. For appreciation of the third point urged for the appellant it would be again useful to refer to a few corresponding provisions of the two Acts. In the 1955 Act, tenant was defined in clause (f) of Section 3 to mean “a person by whom rent is payable or but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant”. In the 1961 Act, however, the definition of tenant has been widened and Section 2(i) reads thus: “‘tenant’ means a person by whom or on whose account or behalf the rent of any accommodation is, or, but, for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.” On a plain reading of the definition aforesaid it is clear that a tenant even after the termination of his contractual tenancy does not become an unauthorised occupant of the accommodation but remains a tenant. It has been pointed out by this Court in Damadilal v. Parashram that such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English law is quite apposite or not, but, what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation. 12. For the reasons stated above it is manifest that the defendants remained in occupation of the accommodation on and from January 1, 1973 as a tenant, conveniently to be called statutory tenant, under the Act. Their occupation was not unauthorised or wrongful until a decree for eviction was passed by the first appellate court on August 11, 1975. Their occupation became unauthorised or wrongful only from that date. They are not, therefore, liable to pay any damages or mesne profits for the period commencing from January 1, 1973 and ending on August 10, 1975. Decree for damages either in respect of the two months prior to the institution of the suit or for the subsequent period must therefore be set aside. The defendant-appellants will be liable to pay damages or mesne profits at the rate of Rs 125 per month (the rate of damages could not be and was not challenged before us) from August 11, 1975 only, until the delivery of the vacant possession of the accommodation. He submits that in view of the judgment in the case of Smt. ‘Chander Kali Bai and Others’(Supra) the defendants/respondents remained in occupation of the accommodation on from 01.01.2003 to 01.10.2007 as a tenant. He further submits that in view of Section 2(h) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 the respondents/bank was the statutory tenant under the Act. He submits that occupation was not authorized and eviction was passed by the court below. He further submits that Rs. 5,000/- was the amount in clause 12 with regard to both the property which is as another set of landlords also involved in this property. 17. Mr. He submits that occupation was not authorized and eviction was passed by the court below. He further submits that Rs. 5,000/- was the amount in clause 12 with regard to both the property which is as another set of landlords also involved in this property. 17. Mr. Pati, learned counsel further submits that a tenant may fight the lease in superior court the tenancy will come to an end only with effect from the date of decree passed by the lower court. To substantiate his argument he relied a judgment in the case of Atma Ram Properties (P) Ltd. Vrs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 para 16 and 19 which reads as under:- 16. We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy. 19. To sum up, our conclusions are: (1) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable. (2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. (2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree. (3) The doctrine of merger does not have the effect of postponing the date of termination Of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date. Mr. Pati, learned counsel further submits with regard to Section 74 of the Contract Act that penalty or damages is introduced in the documents only for the purposes of performance of the contract and that is termed as final as such penalty is a terms which is extraneous and collateral to the actual contract. To substantiate his argument, he relied a judgment in the case of Union of India Vrs. Vasudeo Agarwal and another reported in AIR 1960 Patna 87 para 25, 26 which reads as under:- 25. Penalty : When a contract contains a term which, not being an integral part of the contract, is introduced only for the purpose of securing the performance of the contract, that term is penal, and, as such, a penalty is a term which is extraneous and collateral to the actual contract. A penal clause, therefore, must be one which imposes, some penalty for the default, that is to say, which puts the defaulter in a worse position than he would occupy if there were no penal clause. 26. A penal clause, therefore, must be one which imposes, some penalty for the default, that is to say, which puts the defaulter in a worse position than he would occupy if there were no penal clause. 26. The whole principle of the law of penalty is this : If in making provision for breach of contract, the promisee puts in a stipulation not by way of reasonable compensation to the promisee on the breach of contract hut in order that by reason of its burden-some or oppressive character it may operate in terrorem over the promisor so as to drive him to fulfil the contract, then the stipulation is one by way of penalty. The idea is very common that what is called a "penalty clause" in a contract is a mere brutum fulmen, an agreement that neither party has any intention of enforcing at all to any extent. Such a penalty clause merely fixes a maximum for damages which would be difficult to estimate in terms of money and anyhow does not deprive the aggrieved party of his right to damages that can be so estimated. On the above grounds Mr. Pati, learned counsel argued that issue nos. 6 and 7 have already decided in favour of the appellants/plaintiffs and the trial Court has provided a substantial amount in favour of the appellants/plaintiffs while deciding the issue nos. 6 and 7. 18. Having heard learned counsel for the parties and looking into the records of this case and the judgment delivered by the trial court, this court finds that in view of section 2(h) (i) the respondents/bank was continue in possession. In view of this provisions and looking into the case of Smt. Chander Kali Bai and Others (Supra) and Atma Ram Properties (P) Ltd. (Supra) it can be safely said that the respondents/bank was in continuance of the tenancy. In view of the judgment of the Hon’ble Supreme Court in the case of Atma Ram Properties (P) Ltd. (Supra) the respondents/bank is liable to pay Mesne profit for compensation of use of occupation of the premises at the same rent which landlord who would have been let out the premises even on rent if the tenant would have vacated the premises. In this case it has not been able to prove by the appellants/plaintiffs that what would have been the rent effect if the tenant would have vacated the premises. So far as the clause 12 of the exhibit 1 is concerned i.e. with respect to two premises. As per the provision of Section 74 of the Act, the court is required to determine the quantum of compensation for breach of contract, where penalty stipulated for the transaction and use of the work on the side of damages would not require acquisition of the right of the parties. In view of the Section 2(h)(i) the respondents/defendants was in continuation of the tenancy and the suit was instituted under that act and there is already provisions in view of the said section to that effect that if the tenant is not vacating the premises pursuant to expiry of the lease period, the same will be treated as barred by law. 19. The trial Court has deal with the issue nos. 6 and 7 in its right perspective and also awarded the damages but the same is equivalent to double rent subsequently decree of award till the vacate possession must be given by the respondents/defendants to the appellants/plaintiffs in execution of decree. Thus the substantial relief has already been allowed in favour of the appellants/plaintiffs, this court finds that there is no illegality in the judgment in the trial Court. Accordingly, the First Appeal stands dismissed.