Miss Mona Verma and Others vs The Indian Overseas Bank

Valmiki J Mehta, J.—The challenge by means of this regular first appeal u/s 96 of the Code of Civil Procedure, 1908, is to the impugned judgment and decree dated 27.3.1996 whereby the suit of the Appellants/Plaintiffs/landlords was decreed with respect to possession of the suit premises and also granting mesne profits at Rs. 7.789 per sq. ft. Claim in appeal is for a higher rate of mesne profits. So far as the decree of possession is concerned, the same is no longer in issue because the Respondent bank has handed over possession of the premises to the Appellants. The issue is therefore only with regard to the rate of mesne profits which have to be awarded.

Before the trial court, evidence was led on behalf of the Appellant to prove the mesne profits which were sought with respect to the suit premises. The main evidence which was led and relied upon was of PW-2 one Sh. Ashok Arora who was an employee of the Karol Bagh branch of Vijaya Bank, being a stenographer therein, and which Vijaya Bank was a tenant in a premises situated on the same Padam Singh Road, Karol Bagh, New Delhi where the tenanted premises/suit premises were located. Whereas the suit premises are numbered 10159, Padam Singh Road, Karol Bagh, Vijaya Bank was a tenant with respect to the premises No. 10203, Padam Singh Road, Karol Bagh, New Delhi. PW-2 deposed that Vijaya Bank was paying rent in September, 1995, of Rs. 1,87,220/- per month and which amount came to approximately Rs. 55 per sq. ft. The witness produced a copy of the sale deed, which was only marked as ''B'', and the same was not exhibited because neither was a certified copy of the registered lease deed filed and nor was the original lease deed summoned from the landlord. Accordingly, the trial court granted the mesne profits as per the admitted rent and did not grant mesne profits at Rs. 55 per square ft.

I may note that this case was argued in detail and arguments were more or less concluded on 9.2.2011, and on which date, the following order was passed:

The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 is to the aspect of the rate of mesne profits which have been awarded by the trial court. The Appellant as landlord claims that the trial court has granted only Rs. 7.789 per sq.ft as rent whereas it has led evidence of a neutral witness being an employee of another nationalized bank namely M/s Vijaya Bank to show that Vijaya Bank was paying rent at about Rs. 55 per sq.ft. with respect to its branch on the same Padam Singh Road where the Respondent bank also had its branch. I note that there is no cross-examination of this witness that he is not an employee of Vijaya Bank, that he was not authorized to come and give evidence on behalf of Vijaya Bank, that Vijaya Bank was not a tenant of the premises situated at Padam Singh Road and that Vijaya Bank was not paying rent of Rs. 1,87,220/- w.e.f. 25.11.1992. In this case the rate of mesne profits have to be calculated from July 1992 when the tenancy was terminated. Counsel for the Respondent has ably argued that the lease deed Mark B cannot be relied upon in support of the Appellant, however even if Mark B is ignored, prima facie in view of the aforresaid, subject to any further arguments by the counsel for the Respondent, I find that the appeal may have to be allowed. The appeal would therefore naturally be allowed at Rs. 55 per sq.ft, if the same is allowed. Learned Counsel for the Respondent at this stage states that this Court should award a reasonable rate which is lesser than Rs. 55 per sq.ft. In law, I can award either award mense profits at Rs. 55 per sq.ft, which is the rate proved through PW2 -- the employee of the Vijaya Bank, or a lesser rate only if there is consent to such a lower rate by the Respondent bank. Learned Counsel for the Respondent states that in this view of the matter he seeks time to take instructions for arriving at a negotiated rate to be payable to the Appellant. I may note that observations made in the present order are to enable the learned Counsel for the Respondent to take appropriate instructions from the Respondent bank and are subject to further arguments of the counsel for the Respondent bank. List on 28th February, 2011.

Learned Counsel for the Respondent bank states that the bank is not agreeable to pay any mesne profits higher than Rs. 7.789 per sq. ft. inasmuch as the counsel states that the Respondent bank has not reverted to him in spite of communications having been sent to the bank.

In my opinion, the learned trial court has clearly committed an illegality and perversity in denying the mesne profits at the rate of 55 per sq. ft to the Appellants in spite of the fact that the lease deed was not formally proved, however, as already noted in the order dated 9.2.2011, there is no cross-examination of PW-2 that he is not the employee of the Vijaya Bank, that he was not authorized to come and give evidence on behalf of the Vijaya Bank and Vijaya Bank was not a tenant of the premises at Padam Singh Road, Karol Bagh paying rent w.e.f. 25.11.1992 of Rs. 1,87,220/- per month. The aforesaid conclusion emerges because the witness was not a private interested witness who would be deposing falsely, inasmuch PW-2 was an employee of a public sector bank. The said witness had also brought and exhibited an authorization letter from the bank exhibited as Ex.PW2/1 and which authorized him to depose on behalf of the bank. I may note that the rate of rent paid by Vijaya Bank was Rs. 55 per sq. ft. from the year 1992 and the period in question in the present case is w.e.f. 1.9.1992, i.e. the same period.

Accordingly, I accept the appeal and decree the suit of the Appellants/Plaintiffs against the Defendant by granting mesne profits at Rs. 50 per sq. ft., (instead of Rs. 55 per sq. ft. inasmuch as the rate of Rs. 50 per sq. ft. has been claimed by the Appellants/Plaintiffs in a suit by means of a specific figure). The Respondent is therefore liable to pay charges for use and occupation from 1.9.1992 to the Appellants at Rs. 50 per sq. ft. till 24.6.1996 when the possession of the premises are said to be handed over. I also grant the Appellants interest at 16% per annum simple from the due date of payable of mesne profits each month and which shall be taken as 15th day of each calendar month on which such mesne profits/charges for use and occupation would be payable. I am specifically fixing the rate of interest because the banks would be charging roughly this rate of interest with respect to various advances being granted by it, which in any case are repayable not with simple rate of interest but with interest at quarterly rests. Appellants are also held entitle to costs of the present appeal and which would be the court fees affixed on the appeal as also the counsel''s fee, with respect to which the necessary certificate in terms of the rules filed within a period of one week from today. Decree sheet be prepared. Trial court record be sent back.