Judgment:
S. Mukerjee, J.
1. The plaintiff are the landlords of the suit premises being 3718 sq. ft of Commercial Space located at the New Block of building NO. 28, K.G. Marg, New Delhi. By way of present suit, the plaintiff has sought ejectment of the defendant bank, and also claimed relief of damages of Rs. 2,97,400/- for two months period being September and October 1989, and for a decree of damages from the date of institution of the suit i.e. for the period November 1989 onwards, and till the delivery of possession back by the bank.
2. Vide order dated 10.1.91, the following issues were framed:-
i) Whether the Suit premature and not maintainable?-OPD
ii) Whether the notice of termination is illegal, invalid as alleged?-OPD
(iii) Whether the Amendment Act No. 57 of 1988 is unconstitutional and void?-OPD
iv) Whether the suit is not properly valued for purposes of Court Fees and jurisdiction? If so, what effect?-OPD
v) Whether Plaintiff is entitled to recover any amount on account of damages/mesne profits for the use and occupation. If so what amount?-OPD
vi) Relief.
3. The plaintiffs examined two witnesses in support of their case, viz., Shri Sohan Singh Anand plaintiff No. 1 (PW 2) and Shri Sanjay Malik, a Real Estate Agent (PW 1). Four documents were exhibited by the witnesses of the plaintiff, viz., a list of three lease deeds of allegedly similarly situated properties showing the market rate of rent in the area (Exh. PW1/1), notice to quit under 106 of the Transfer of Property Act dated 9.5.89 (Exh. PW2/1), reply dated 18.5.89 sent on behalf of the defendants (Exh. PW 2/2), and the site plan of the premises (Exh. PW2/3).
4. The defendant also examined the two witnesses viz. Shri R.K. Modi (DW1) and Shri M.L. Sharma (DW2), but did not put forward any documentary evidence at all.
5. After the evidence of the parties has come on record, there is no surviving dispute on the point that the plaintiff are the owners, and that the defendant was paying the rent to the plaintiffs; and also that no agreement for renewal of the lease, was ever executed and thereforee it follows that there was no registered instrument in operation qua the period beyond the initial five years period.
6. The decision on the surviving points in this case, does not entail much complexity.
7. It is settled position in law that even the extension of lease, in the case of a lease continuing for 12 months or more, would have to be by way of a registered instrument; and that in the absence of such a registered instrument, the status of the tenant would be that of a month to month tenant whose lease can be terminated by serving a valid notice under Section 106 of the Transfer of Property Act.
8. The parties were at total variance regarding the existence of a registered lease deed, even in relation to the original period of 5 years commencing from 24.9.1979. It is vehemently contended by the plaintiff that the defendant not only did not press for any issue being framed on this aspect, but also failed to produce/file the original registered lease deed or certified copy thereof. The plaintiffs further emphasised that no witness had been summoned by the defendant from the office of the Sub-Registrar, to prove either the original registered document or its certified copy. Much is also made of the fact that both the witnesses of the defendants viz. DW1 and DW2, in their depositions dated 17.9.2001 and 21.11.2001, had deposed to the contrary of what was being argued on behalf of the defendants.
9. In the view which I propose to take, I need not to go into these aspects of the controversy. I find that the defendant has now Along with the written submissions, attached the original registered lease deed Along with the receipt from the Office of the Sub-registrar concerned. I do not also propose to go into the defendant's right to produce such a document which is so crucial to the defense, at such a belated stage, and that too without even moving any application for the said purpose.
10. According to me, even if we assume that the defendant had a registered instrument in it's favor, still on the language of the said instrument as relied upon and produced by the defendant himself, at best there existed 'option' in favor of the defendant to avail renewal twice, i.e. after the expiry of 5 years, and then after the expiry of 8 years. Even if everything is assumed in favor of the defendant, there was at best a right to claim renewal in favor of the defendant, which could, if at all, mature to be a renewed lease deed only in the event of parties executing a registered instrument to that effect, since admittedly the period of the renewal of lease was longer than 12 months. It is the admitted position that there was no such instrument executed in writing qua the period beyond the initial period of 5 years. Equally and consequently, there could conceivably be not even any contention on the part of the defendant regarding existence of any registered instrument applicable qua the period beyond the said period of first 5 years.
11. In this regard, reference can be made to the judgment of Hon'ble Supreme Court in the matter of Delhi Development Authority v. Durga Chand Kaushik : [1974]1SCR535 where it has been held that renewal of a lease is really the grant of a fresh lease. It has been further held in the matter that even the renewal lease require registration. In the absence of registration as envisaged under Section 107 of the Transfer of Property Act, a lease of immovable property which is more than one year and not registered, its term cannot be looked into.
12. A further reference can be made to a judgment of the Division Bench of this Court in the matter of Modern Food Industries (India) Ltd. v. I.K. Malik and Ors. : 98(2002)DLT593 while relying upon the above said judgment of the Hon'ble Supreme Court and also an earlier decision of the Court in the case of Kidarsons Industries (P) Ltd. v. Allahabad Bank : 80(1999)DLT540 refusing to look into a letter whereby the lease was allegedly renewal has held that such letter required registration it has been further held that
'since the renewal lease is not registered as required thereforee, such a lease has to be treated as a lease from month to month basis determinable by a statutory notice under Section 101 of the Transfer of Property Act. The letter dated 3rd July, 1992 relied by the appellant renewing the lease up to 31st May, 2002 required registration, having not done so their letter postulating the extension of lease up to 31st May, 2002 which term is not for collateral purpose hence cannot be used nor admissible in evidence for showing creation of lease/renewal lease except for proving the nature of possession.'
13. It is not even the case of the defendant, that it had called upon the plaintiff to execute any registered instrument in relation to the period subsequent to the original 5 years period. It is also not the defendant's case, that it instituted any suit for specific performance of the renewal clause till the date of the suit or even till the date when the matter was heard and reserved for judgment. In any case, such a suit can no longer be instituted by the defendant, since the same would be hopelessly time-barred, whether one considers time to run rom the expiry of the initial 5 years period or from the date of the notice to quit served by the plaintiff on 9-5-89, atleast from which date onwards the defendant was well aware that he cannot rely upon the 1979 instrument or on it's assumed status for continuing to occupy the premises in question. Thereupon, the defendant had only the option of either accepting its status as a tenant at sufferance, or at the highest to that of a month to month tenant.
14. The matter can be looked at from another standpoint also. Since the defendant has not either served a notice or demand seeking execution of an instrument of renewal and due registration thereof, and has also not field any case for specific performance, thereforee defendant is to be presumed to be happy with the resultant status of a tenant at sufferance or a month to month tenant.
15. In this view of the matter, there is no merit in the contention of the defendant that the defendant's total lease period was 11 years i.e., up to 1990. Defendant's lease only for the period of five years from 1979-84, beyond which it had only a right to claim renewal which was admittedly never enforced by defendant in the required manner. For the same reasons, issue No. 1 is answered against the defendant and in favor of the plaintiff. The suit instituted in 1989, is neither premature nor not maintainable.
16. The only question which remains to be considered is whether the notice of termination is illegal or invalid as alleged by the defendant. The contention of the defendant is that the first notice dated 9.5.89, is invalid on account of the plaintiff being called upon therein to handover the possession by 31.5.89. The defendant submits that up to the mid-night of 31.5.89, he had a right to occupy and enjoy the premises and that it was only thereafter i.e. on and from 1.6.89, that the defendant could have been called upon to hand over the possession. According to the Ld. Counsel for the defendant, the phrase 'by the end of the month' and the words, 'with the end of the month' have different meanings. According to him, the words, 'by the end of the month' meant on or before the end of the month, while the words 'with the end of the month' means only after the expiry of the month. Reliance is placed upon Section 106 of the Transfer of Property Act which uses the phrase 'expiring with the end of the month of tenancy'.
17. There is no dispute with the said notice dated 9.5.89 which was received in time by the defendant who has also replied the same vide reply dated 18th May, 1989 (Exh. PW2/2). This notice to quit dated 9.5.89 is an exhibited document being exhibit PW2/1. The said notice is also in accordance with the requirement of the statutory provision. The only short-coming made out by the defendant, in relation to the said notice dated 9.5.89 is regarding the choice of the words, 'by 31.5.89' which according to him renders the notice illegal. The proper course of action for the plaintiff would have been, as per the defendants, to use the phrase, 'after the mid-night of 31.5.89'.
18. In this regard, it is worth having a look on exhibit PW 2/1 which is the legal notice whereby the tenancy was terminated. The relevant portion of the notice is as under:-
'That by this Notice thereforee, I am required to determine your tenancy and call upon you to handover the vacant peaceful possession of the said premises to my clients by 31st of May, 1989 in accordance with the provisions of Section 106 of the Transfer of Property Act. You may also note that if the monthly tenancy ends differently then with the end of the English calendar month, you are being given hereby the clean notice of giving up the said tenancy and hand back the vacant possession in accordance to your contemplated calculation.'
19. I need not to dwell much on this aspect since as held by the Apex Court in the case of Bhagban Das Aggarwal v. Bhagwan Das Kanu : [1977]3SCR75 , a Notice to quit must be construed not with a desire to find faults in it which would render it defective but it must be construed ut rest magis valeat quam pereat, and that the validity of a notice to quit ought not to turn on a splitting of straw. It has further been held that there is no difference between a notice asking a tenant to vacate 'within the month of October 1962' and a notice requiring a tenant to vacate latest by the midnight of 31st October, 1962, because, in both the cases, the tenant would be entitled to occupy the premises up to the expiration of 31st October, 1962. Reliance has also been placed upon by the Ld. Counsel for the plaintiff on the following judgments in support of the contention that there need not be any hair-splitting in relation to a notice of eviction. Mohd. Indresh Mian v. Doman Shah : AIR1978Pat82 and Laxmi Devi v. Chandramani Devi : AIR1971All506 .
20. In view of the said clear pronouncement by the Apex Court and the various High Courts, there is no merit in the contention of the defendant that the notice to quit dated 9.5.89 is either invalid or that the same does not legally terminate the tenancy of the defendant. The cited case of Francis Jerone v. Anthony Pedad Cardoza : AIR1984Kant226 ; Smt. Kant Manocha v. Hindustan Paper Corporation : 74(1998)DLT493 and Yerrabhaothula Krishan Murthy and Ors. v. Addepalli Subha Rao : AIR1988AP193 are clearly distinguishable and not applicable.
21. Issue No. 2 is thereforee decided against the defendant and in favor of the plaintiff.
22. It may be pertinent to mention here that the plaintiff had issued another notice dated 11.9.89 regarding which the defendant has made out several contentions regarding short comings therein. The submission of the Ld. Counsel for the defendant is that as per para 15 of the plaint, this final notice dated 11.9.89, is the basis of the cause of action of the case and thereforee, by the issuance of the subsequent notice dated 11.9.89 as also the acceptance of the rent for the months of June, July and August, 1989, the earlier notice stands as superseded/withdrawn.
23. In my view the position is well settled as held by the Apex Court in the case Raptakos Bret & Co. Ltd. v. Ganesh Property : AIR1998SC3085 , that the cause of action is to be culled out on a conjoint reading on several paras of the plaint. Reliance has also been placed by the Ld. Counsel for the plaintiff on a number of other decisions in the written submissions, but I do not feel it necessary to refer to each one of those cases which primarily lay down that what each plaintiff wants to convey, can be gathered by reading the whole of the pleadings. As such, non-mention of the earlier notice dated 9.5.89 in the cause of action paragraph No. 15 is not a very significant aspect. I find that in paras 6 & 7 of the plaint there is a clear cut and specific reference to the notice to quit dated 9.5.89, and the same would suffice to meet the requirements of law of parties going to trial knowing fully well what they are required to prove as held by the Apex Court in the case of Kali Prasad Aggarwal v. Bharat Cooking Coal in AIR 1989 SC 1530. Even otherwise no such contention has been raised by the defendant in its written statement nor such subsequent notices have been proved on record by either of the parties and as such can not be looked into. In my view it was for the defendant to prove the above stated notices on the record if it wanted to take benefit to any alleged waiver contained in such subsequent notices. The defendants having failed to do so can not be allowed to raise this contention now which do not have any basis in the records of the case.
24. Even as regards the other contention of the defendant viz that the plaintiff continued to accept the rent even after the issue of the notice to quit dated 9.5.89, and thereforee is deemed to have waived the benefit of the said notice, it may be noted that there is no pleadings nor evidence on the part of the defendant to the effect that the plaintiffs were going on accepting the rent from the defendant subsequent to the said notice to quit. No issue to this effect was pressed by the defendant for being framed by this Court. The contention of the plaintiff is that the rent was accepted only after the orders to that effect had been passed by this Hon'ble Court. In any case, reliance has also been placed on the judgment of this Court in Moorti v. Parai Devi in 1980 10 DRJ 178.
25. In the view which I have taken, I need not go into the legal position regarding the subsequent notice dated 11.9.89, which has not been proved by any of the parties.
26. As regards the issue No. 3, the point is no longer res-integra. The Apex Court in D.C. Bhatia v. UOI : (1995)1SCC104 has held against the defendant. Accordingly, the said issue No. 3 is also decided against the defendant and in favor of the plaintiff.
27. On issue No. 4, no submissions have been advanced by either of the Ld. Counsel during the course of arguments or in the written submissions filed by them. As such, this issue, in the absence of submission, is decided against the defendant and in favor of the plaintiff.
28. Issue No. 5 & 6 may be taken up together. The submission of the Ld. Counsel for the plaintiff is that the plaintiff has brought on record reliable evidence regarding the market rate of rent in relation to the suit premises. The plaintiff No. 1 while appearing as PW 2, has disclosed the prevailing market rate of rent in the neighbouring building, i.e. Vijaya Building, Barakhamba Road, D.C.M. House, Barakhamba Road at the relevant time and he exhibited the documents with Ex. PW 1/1 to substantiate his statement before this Hon'ble Court. Upon being examined, the plaintiff No. 1 has categorically stated that the market rent of the suit premises in 1989 was Rs. 50 per sq. ft. while in the year 1992, it was Rs. 100 Sq. ft., and that at the time of recording of the statement before this Court, on 24.1.1996, the market rate of rent was more than Rs. 250/- Sq. Ft. per month.
29. The plaintiff has also examined as PW1, Shri Sanjay Malik, a Real Estate agent having more than 17 years experience and having office in the building next to the premises in question. This witness has stated that he is in the business of sale and purchase of property, and has in face been involved in leasing out commercial spaces of the locality. This statement has not been seriously disputed by the defendant during cross examination. He has categorically stated that in 1989 the rent of office space on the second floor and above of K.G. Marg was Rs. 25/sq. ft. of super area while for the first floor Rs. 40/-ft. of super area and for round floor the same was Rs. 50/- per sq. ft. of super area. Rate for the carpet area is stated to be 35% more than the rate of super area.
30. The defendant did not produce any document nor any witness to prove its defense that the prevailing rent for the premises in question was less than 50 per sq. ft in 1989, in relation to similar premises in the locality. The defendant also failed to discharge its onus to substantiate why or how the quantification damages/mesne profits by the defendant, was either wrong or exaggerated. In face as a perusal of the written submissions of the defendant reveal, except for a bald assertion during the arguments that the suit premises are situated in a very old building, virtually no other defense has been taken.
31. I have gone through the statement made in relation to rent of the premises similarly situated to the suit premises. On the basis of the said statement it is apparent that the rent in the year 1989 when the suit was filed was in the region of Rs. 50/-ft. The plaintiffs have contended that the rate was more than Rs. 250/-ft. at the time of recording of the statement of PW1 & PW2. Considering the facts in totality, in the light of the evidence which has come on record, and that a due adjustment/reduction is to be made, for the building being an old building, to my mind, if the plaintiffs are awarded the damages/mesne profits at Rs. 100 per sq. ft per month as a flat rate, including for the] period till date, the same will constitute a fair assessment of average market value of rental for the suit premises, and more so considering that in the period towards the end of 1990s and since then, the fair market rate of rent would be much more than Rs. 100 per sq. ft. It has been contended by the Ld. Counsel of the defendants that the bank was paying up additional amount on account of the premises in question being treated to be equivalent to two floors, on account of the extra height of the premises. In my view that would not operate to reduce the mesne profits. Since the premises having an extra height fetches a higher rent the mesne profits have been worked out according. In any case, by keeping the amount fixed at Rs. 100/-sq.ft. of super area per month, and not increasing it further even though as of now, a further period of almost 10 years have passed. Any possible grievance that the defense would be having regarding the quantification of damages/mesne profits, would stand met by my not providing any escalation therein till date the possession is handed over.
32. In any case, the defendants having failed to adduce any evidence at all, and having made hardly any submissions worthy of merit in their written submissions on this aspect, even otherwise stand precluded in this behalf.
33. Issue No. 5 & 6 are accordingly decided in favor of the plaintiff by holding that the plaintiff is entitled to damages/mesne profits in relation to the use and occupation of the suit premises by the defendant for the months of September and October 1999 at the claimed amount of Rs. 1,48,720/- per month i.e., Rs. 40/- sq.ft. of carpet area per month as claimed by the plaintiff, and in relation to the period thereafter, i.e., 1.11.89 onwards and till date the plaintiff restores back the peaceful and vacant possession of the premises at Rs. 100/-sq.ft. for the 3718 sq.ft of area of the suit premises. Since a single rate has been made applicable, and no interest has been awarded on the amount to be paid, the as will operate to adjust the rigour of the market rent in the period immediately after October, 1989 suddenly going as high as Rs. 100/-sq.ft. as held above.
34. Resultantly, the suit of the plaintiffs is allowed. A decree of possession is granted in favor of the plaintiffs in relation to the suit premises as per the site plan Exhibit PW/3. Since the defendant is a Government Sector Bank, it is granted three months time to hand over the vacant and peaceful possession of the premises in question during which period the defendant will be liable to pay Rs. 100/-sq.ft for the entire premises comprising 3718 sq.ft area. The plaintiff is also granted a decree for damages/mesne profits of Rs. 2,97,400/- being damages for use and occupation of the suit premises by the defendant for the period September and October 1989. Since no amount has been claimed for the period of June, July and August, 1989, as such the plaintiff will not be entitled to any damages/mesne profits in relation to the same.
35. The plaintiff is granted a decree of damages from the month after the date of institution of the suit, i.e., from 1.11.89 and till the date of restoring back possession at Rs. 100/-sq.ft for 3718/ft of suit premises, subject to the payment of Court fee for the same. The decree for damages/mesne profits for the period 11.11.89 onwards and till the date of this judgment, to be prepared after the plaintiff furnishes the requisite Court fee for the said purpose.
36. The plaintiff is also entitled to the cost of the present proceedings.
37. The suit is accordingly decreed in the above terms with costs.