M/S Bajaj Electricals Ltd & Anr vs M/S Dhruv Devansh Investment & Finance Pvt. Ltd

Valmiki J. Mehta, J

This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment

of the trial court dated 24.04.2018 by which the trial court has decreed the suit for damages/mesne profits filed by the respondent/plaintiff/landlord

against the appellant/defendant/tenant with respect to the leased premises being the ground floor of property no. 4/11, Asaf Ali Road, New Delhi. The

period in question for which the damages/mesne profits have to be decided are from 01.10.2007 till 14.09.2011. I may note that originally the suit filed

by the respondent/plaintiff, was for possession and mesne profits, and during pendency of the suit on account of a decree passed in favour of the

respondent/plaintiff for possession, the appellant/defendant vacated the suit premises on 14.09.2011.

The facts of the case are that the respondent/plaintiff let out the suit property being the ground floor of property no. 4/11, Asaf Ali Road, New

Delhi to the appellant/defendant vide Lease Deed dated 09.10.1964, and which lease continued by extensions up to the year 1974 whereby no further

lease deed was executed. After terminating the tenancy by a Legal Notice dated 08.08.2007, the subject Suit for recovery of possession and mesne

profits was filed on 06.12.2007.

As regards the legal requirements to be proved in order to get a money decree for damages/mesne profits with respect to a leased premises, what

is ordinarily required to be led in evidence are lease deeds of similar premises, and the rate of rents of such similar premises are taken as an indication

with respect to rate of rent/mesne profits which would be payable for the suit premises. The relevant issue framed by the trial court in this regard is

issue no.2, and which has been dealt with in paras 17 to 28 of the impugned judgment and these paras read as under:-

“17. The onus of proving this issue was fixed upon the plaintiff. It is submitted by the ld. Counsel for the plaintiff that the notice of termination of

tenancy dated 08-08-2007 was served upon the defendant no.1 wherein the defendant no.1 was requested to hand over the possession of the suit

premises on or before 30-09-2007 and reply dated 12-09-2007 was also given on behalf of the defendant no.1 and since, after 30-09-2007, the

defendant no.1 was in unauthorized use and occupation of the premises in question and that is why the plaintiff is entitled for damages/mesne profits

from 01-10-2007. It has not been disputed that notice of termination was not received by the defendant no.1 and therefore, it was required to hand

over peaceful possession of the premises in question. Therefore, I agree with the submissions of ld. Counsel for the plaintiff that the plaintiff is entitled

for damages/mesne â€"profits from 01-10-2007 till the possession of the suit premises was handed over i.e. 14-09-2011.

It is submitted by the ld. Counsel for the plaintiff that the PW1-O.P.Gupta relied upon certified copies of lease-deeds Ex.PW-1/7 to Ex.PW-1/11

to prove that he is entitled to recover damages @ Rs.5 lakhs per month and those lease-deeds may kindly be considered for deciding rate of

damages/mesne-profits. It is further submitted that PW-1 has also relied upon lease-deed Ex.PW-1/5 in his affidavit when he tendered the same in

rebuttal which may also be considered for deciding the damages/mesne-profits. It is further submitted that PW2-Sh. Rajesh Verma has produced

three original lease-deeds dated 16-07-2007, 22-07-2008 and 17-11-2008 already exhibited as Ex.PW-1/8, Ex.PW-1/11 and Ex.PW-1/10 respectively

and has proved the certified copies of the same. It is further submitted that PW3-Rahul Bansal has produced original lease-deed dated 09-02-2009,

certified copy of which is Ex.PW-1/7 and PW-4 has produced certified copy of lease-deed dated 21-11-2008 Ex.PW-1/9. It is further submitted that

PW5-Sh.S.K.Sharma, LDC from the office of Sub-Registrar-III, Asaf Ali Road, Delhi has been examined in the court who has proved registration of

lease-deeds Ex.PW-1/7 to Ex.PW-1/11 and these lease-deeds may kindly be considered for deciding damages/mesne-profits. It is submitted by the ld.

Counsel for the plaintiff that the plaintiff has claimed damages/mesne-profits @ Rs.5 lakhs per month or at such higher rate as may be determined by

the court.

On the other hand, ld. Counsel for the defendants submits that Sh.R.S.Chadha has filed his affidavit in evidence and examined as DW-2. It is

further submitted that DW1-Sh. S.K.Sharma has proved lease-deeds Ex.DW-1/1 to Ex.DW-1/6 and these lease-deeds may kindly be considered for

the purposes of deciding damages/mesne-profits.

I considered the submissions of ld. Counsel for the plaintiff and ld. Counsel for the defendants as submitted above.

In WS, defendants have admitted the area of the suit premises as 4000 sq. feet. Therefore, the plaintiff is entitled for the damages as per the area

of the suit premises i.e. 4000 sq. feet.

The increase in the market rent depends upon a number of factors such as the tenanted area, the requirement of the tenant and the landlord the

facilities available in the surroundings, the parking space etc.

I agree with the submissions of ld. Counsel for the defendants that the lease-deed Ex.PW-1/15 can not be considered for deciding

damages/mesne-profits as the same is w.e.f. 25-04-2016 onwards while the damages/mesne-profits are being claimed by the plaintiff 30-08-2007 till

14-09-2011.

I also agree with the submissions of ld. Counsel for the defendants that the order of the Hon’ble High Court of Delhi dated 24-07-2013 in RFA

No.44/2013 is of no help to the plaintiff since the rate of rent of Rs.39,060/- per month was agreed rate of rent and in the present case. agreed rate of

rent was Rs.1600/- per month and the court has to decide damages/mesne-profits keeping in view the facts and situation of the present case. I further

agree with the submissions of ld. Counsel for the defendants that the order dated 19-01-2018 passed in RFA No.54/2018 is with respect to the rent

claimed for a period of 01-12-2011 to 31-12-2011 while the period in the present suit for damages/mesne-profits is from 30-08-2007 till 14-0-9-2011

and therefore, the said order-judgment is not relevant to the facts of the present case.

I considered the sale-deed Ex.PW-1/7 for the purpose of deciding the damages/mesne-profits. The lease-deed Ex.PW-1/7 is of the property

bearing NO.4/10 Asaf Ali Road, New Delhi area measuring 2700 sq.feet commencing from 09-02-2009 for nine years and the rate of rent is Rs.155/-

per sq. feet for ground floor. The suit property in reference situated at 4/11, Asaf Ali Road, New Delhi is adjacent to the property of lease-deed

Ex.PW-1/7. The property is also related to ground floor in the present suit as the property in the lease-deed Ex.PW-1/7. Therefore, I am of the view

that for the purpose of determining damages/mesne-profits, the lease-deed Ex.PW-1/7 is relevant.

The properties in respect of which lease-deeds Ex.PW-1/8 to Ex.PW-1/11 produced, are not situated adjacent to the property in reference.

Therefore, I do not consider the lease-deeds Ex.PW-1/8 to Ex.PW-1/11 for the purpose of deciding the damages/mesne-profits.

Lease-deeds Ex.DW-1/1 to Ex.DW-1/6 cannot be considered for the purposes of determining damages/mesne-profits because the properties as

mentioned in lease-deeds Ex.DW-1/1 to Ex.DW-1/6 are not situated adjacent to the property in reference and are situated in Vardhman City-II Plaza,

Commercial Centre, Asaf Ali Road, New Delhi. Therefore, I do not consider the lease-deeds Ex.DW-1/1 to Ex.DW-1/6 for the purpose of deciding

the damages/mesne-profits.

In this case, the suit property and property of Ex.PW-1/7 are within the same vicinity and adjacent to each other. If the lease-deed Ex.PW-1/7 is

considered for the purposes of determining the damages/mesne-profits, I am of the view that the damages/mesne-profits @ Rs.5 lakhs per month has

been genuinely and reasonable claimed by the plaintiff and it can be held entitled for the same.

Therefore, the plaintiff is granted damages/mesne-profits @ Rs.5 lakhs per month for the suit property from 01-10-2007 till 14-09-2011 i.e. the date on

which the possession of the suit property was handed over by the defendants to the plaintiff. This issue is decided accordingly.â€​

It is, therefore, seen that the trial court has placed reliance upon the Lease Deed dated 09.02.2009 Ex.PW1/7, entered into between the lessor -

Growth Securities Private Ltd. and the lessee - Axis Bank Limited, and this lease is for the ground floor and basement of premises bearing no.4/10,

Asaf Ali Road, New Delhi which is the adjacent premises to the suit premises situated at 4/11, Asaf Ali Road, New Delhi. The trial court has arrived

at a figure of rent @ Rs.155/-per sq. ft. per month as per Ex. P.W. 1/7, as the total area let out under the lease deed Ex.PW1/7 was an area of 5950

sq. ft. with 2700 sq. ft. being the area in the ground floor and 3250 sq. ft. being the area in the basement.

At this stage it is also required to be noted that the trial court has not placed reliance upon various lease deeds which were proved and exhibited by

the respondent/plaintiff being Ex.PW1/8 to Ex.PW1/11, though these lease deeds were of Asif Ali Road itself, as the trial court has observed in para

26 of the impugned judgment that properties which are subject matter of lease deeds Ex.PW1/8 to Ex.PW1/11 are not adjacent to the suit property.

It is also noted that the trial court has rejected the case of the appellant/defendant which had placed reliance upon lease deeds Ex.DW1/1 to

Ex.DW1/6, for the self-same reason that these lease deeds are not with respect to the adjacent premises but are of an area some distance away at

Vardhman City-II, Plaza, Commercial Centre, Asaf Ali Road, New Delhi from the subject suit premises.

At the outset, I agree with the submission urged on behalf of the appellant/defendant that calculation given by the trial court of Rs.155 per sq. ft. as

per the lease deed Ex.PW1/7 is not correct because the lease deed Ex.PW1/7 contains a lump sum rent of Rs.5,45,000/- per month for the total area

of 5950 sq. ft. and when the figure of Rs.5,45,000/- is divided by 5950 sq. ft. then we get a figure of Rs.91.59 per sq. ft. Of course, this figure would

not be rent for both the ground floor and basement because this court can take judicial notice that rate of rent for ground floor would obviously be

more than rate of rent of the basement. When we divide the figure of Rs.5,45,000/- with the figure of 2700 sq. ft. out of the total area of 5950 sq. ft,

and this 2700 sq. ft. is the area of ground floor of the premises, which is the subject matter of the lease deed EX.PW1/7, the rate of rent comes to Rs.

201/- per sq ft. per month and when we divide the figure of Rs.5,45,000/- with the figure of 3250 sq. ft. area of the basement comprised in Ex.PW1/7,

it is seen that the rate of rent would become Rs.167.69 per sq. ft. per month, and as per above facts the trial court has taken a rough approximate

figure by taking the figure of rent at Rs.155/- per sq. ft. per month in terms of this lease deed Ex.PW1/7 i.e. instead of taking the figure at Rs.201/-

per sq. ft. per month which would be the rate of rent for the ground floor and Rs.167 per sq. ft. per month which would be the rate of rent for the

basement, the trial court has taken a figure of rate of rent of Rs.155/-per sq. ft. per month. This figure of Rs. 155 per sq. ft per month is even lesser

than the rate of rent of the basement area which when calculated comes to Rs. 167.69/- per sq. ft. per month. The suit premises comprised of 4000

sq. ft. and when 4000 sq. ft. is multiplied by Rs.155/- per sq. ft. than the rate of rent per month comes to Rs.6,20,000/- per month. The trial court has

however finally awarded to the respondent/plaintiff mesne profits only at Rs.5,00,000/- per month and not at Rs.6,20,000/- per month i.e. the rate per

sq. ft. per month has been taken only @ Rs. 125 per sq. ft. per month.

I may note that there is always some amount of honest guess work involved in the calculation of mesne profits, but it is pertinent to note that courts

should not act perversely and there must be a nexus and link between evidence led in the form of lease deeds proved on behalf of landlord to prove

the rent which is to be calculated. In my opinion therefore on the basis of Ex.PW1/7, the trial court has committed no error in arriving at a rate of rent

for suit premises as Rs.5,00,000/- per month i.e. only Rs. 125 per sq. ft. per month inasmuch as, the premises which are subject matter of the lease

deed Ex.PW1/7 is 4/10, Asaf Ali Road, New Delhi i.e. the very next or the adjacent premises.

In fact the learned counsel for the respondent/plaintiff is justified in arguing that the trial court has committed an illegality in overlooking the lease

deed Ex.PW1/9 filed and proved by the respondent/plaintiff, and this Lease Deed dated 21.11.2008 is between M/s. Bhandari Machinery Co. Private

Ltd./Lesser and M/s. Tata AIG Life Insurance Co. Ltd/lessee with respect to the property bearing no. 4/24 A, Asaf Ali Road, New Delhi, and as per

this lease deed the per sq. ft. rate of rent per month is Rs.260 per sq. ft. per month, but I however need not go into this argument urged on behalf of

the respondent/plaintiff because I am accepting the lease deed Ex.PW1/7 for the reasons given above, including by observing that some amount of

honest guess work is always involved in assessing the rate of rent figure.

10(i) Learned senior counsel for the appellant/defendant has argued that the trial court has committed an error in giving the benefit of the lease deed

Ex.PW1/7 to the respondent/plaintiff because the witness of the appellant/defendant did depose in evidence by way of Affidavit dated 25.02.2015,

(paras 4, 5 and 7 thereof), that in the suit premises neither there is any power back up/power-generator nor there is any central air-conditioning along

with the fact that there was a leakage in the roof of tenanted premises in the year 2010 which was repaired by the appellant/defendant. It was

therefore, argued on behalf of the appellant/defendant that the rate of rent/mesne profits of the suit premises considering these aspects of lack of

power back up; lack of central air conditioning and the roof once having leaked in the year 2010; could not have been fixed at the rate of rent in terms

of the lease deed Ex.PW1/7.

(ii) I cannot agree with this argument urged on behalf of the

appellant/defendant because it is not as if that the trial court has taken the rate of rent exactly given in the lease deed Ex.PW1/7, to arrive at the figure

of mesne profits/damages. If we take the exact figure calculated in terms of the lease deed Ex.PW1/7, it is seen that for the ground floor area, the

rate of rent would come to about Rs.201/- per sq. ft. per month and for the basement it would come to Rs.167/- per sq. ft. per month, but the rate of

rent granted by the trial court however is only Rs.5,00,000/- per month which comes to around Rs.125 per sq. ft. per month i.e much lesser than the

mesne rent of the ground floor if taken individually as derived from the total lump sum amount and even less than the mesne rents for the basement

area, and as already discussed above. Therefore, by making an honest guesstimate, the trial court could not have been found to have faulted while

giving the rate of rent at Rs.125/- per sq. ft. per month to the respondent/plaintiff/landlord taking into consideration of the fact that the rate of rent of

Rs. 201 per sq ft. per month or Rs. 167 per sq. ft. per month has to be reduced for the suit premises lacking in the three aspects as argued on behalf

of the appellant/defendant.

11(i) Learned Senior counsel for the appellant/defendant then argued that the trial court has committed an illegality in not referring to the lease deeds

Ex.DW1/1 to Ex.DW1/6 inasmuch as the premises which were the subject matter of the lease deed, Ex.DW1/1 to DW1/6 are also for the same Asaf

Ali Road, Delhi.

(ii) At the first instance, the argument urged on behalf of the Ld. Senior Counsel seems attractive, but as stated above, the lease deed which is relied

upon by the trial court being Ex. PW1/7 is for the very adjacent premises, and therefore, once a reasonable estimate or a guesstimate has to be made

by the court, there is hence found a valid nexus between the evidence led on behalf of the landlord and the rate of rent fixed by the trial court, and this

court would therefore not like to substitute its view instead of a possible and plausible view taken by the trial court which is not in any manner

perverse.

Finally, I may note that another aspect which was urged and argued before this court by the appellant/defendant that the trial court could not have

granted arrears of rent for a period of more than three years prior to filing of the suit as such arrears would be barred by limitation. In response to this

argument the learned counsel for the respondent/plaintiff very fairly does not oppose this argument inasmuch as in law a period of limitation of three

years is provided for the arrears of rent payable, and since the suit was filed on 06.12.2007, arrears of rent could only have been granted from

06.12.2004 and not from January 1996 or 08.07.1997 as has been done by the trial court. Thus Judgment dated 24.04.2018 will accordingly stand

modified to granting arrears of rent to the respondent/plaintiff only for a period of three years prior to filing of the suit.

In view of the aforesaid discussion, this appeal is dismissed except to the extent of modifying the impugned judgment and decree by reducing the

arrears of rent payable for only a period of three years prior to filing of the suit. The parties are left to bear their own costs.