Mrs Basant Verma vs.m/s Namdhari Seeds - Court Judgment

SooperKanoon Citationsooperkanoon.com/1226839
CourtDelhi High Court
Decided OnNov-25-2019
AppellantMrs Basant Verma
RespondentM/S Namdhari Seeds
Excerpt:
in the high court of delhi at new delhi $~ * % reserved on:21. t november, 2019 decided on :25. h november, 2019 + rfa3142013 ..... appellant through : mr.naveen kr chaudhary, adv. versus mrs basant verma m/s namdhari seeds ..... respondent coram: hon'ble mr. justice yogesh khanna through : none yogesh khanna, j.1. per order dated 26.09.2019, none appeared on behalf the respondent despite service.2. this appeal is preferred by the appellant/plaintiff against the judgment and decree dated 30.03.2013 passed by the learned additional district judge-02/south district, saket courts, new delhi (hereinafter referred as the learned ‘trial court’) in cs no.53/2011 whereby the suit of the appellant for recovery of rs.19,93,065/- along with interest was partly decreed and disposed of.3. a) the brief facts are:-"the appellant / plaintiff had given the ground floor premises of property bearing no.h-6, green park main, new delhi - 110016 (hereinafter referred to as the 'suit property') on rent to the respondent vide lease deed dated 27.04.2004 on a monthly rental of rs.1,10,000/- for a period of three years; rfa no.314/2013 page 1 of 10 b) the lease deed contained clause no.2 to the effect”- "the lease shall be renewable thereafter at the sole option of the lessee for further three year periods. the aforesaid rent will be subject to an enhancement of 15% on the last rent payable at the expiry of each three year period. the lessee shall show his intention by registered post a fresh lease will be executed and registered after every three years." c) on 31.03.2007 the lease expired by efflux of time and on 02.05.2007, 26.06.2007 and 07.10.2007 the appellant allegedly called upon the respondent to hand over the vacant and peaceful possession of the suit property and sent letters on the abovesaid dates by registered ad post; d) on 31.03.2007 the premises while in use of the respondent was sealed by the mcd since was being used in contravention of the rules and byelaws of the mcd; e) on 17.08.2007 the premises was temporary desealed by the mcd for a period of three days on an application of the respondent, during which period the respondent removed its material and goods from the premises; f) on 20.01.2008 the respondent handed over notional possession of the suit property to the appellant and on 04.07.2008 the premises was permanently desealed by the mcd; g) on 12.07.2008, an architect inspected the suit property in the presence of mr.tehal singh, a representative of the respondent and mr.anil verma, son of the appellant to assess the damage caused to the suit property, h) thereafter, on 11.11.2008, a legal notice was issued by the appellant to the respondent. the respondent sent reply dated 18.11.2008; and rfa no.314/2013 page 2 of 10 i) on 28.02.2009 this recovery suit was filed by appellant; disposed of by the learned trial court vide the impugned judgment.4. it is the submission of the appellant a) the suit property was vacated by the respondent on 20.01.2008, yet the learned trial court awarded only two months’ rental and that too at the old rate i.e., @ rs.1,10,000/- pm; b) the water and electricity charges were not granted till 20.01.2008; and c) architect report was never considered and no amount on account of damage to the premises was given.5. the learned counsel for the appellant argued, if the lease was to be renewed, the respondent was required to pay rental with 15% increase on the last paid rent, hence rental for the period from 01.04.2007 ought to have been increased to rs.1,26,500/- per month, yet the learned trial court granted rent for two months i.e. for april and may 2007 @ rs.1,10,000/- per month only, despite the learned trial court having held the respondent wished to renew the lease and had even purchased stamp papers worth rs.33,700/-.6. the defence of the respondent as culled out in the written statement was they had paid the water and electricity charges upto may 2007 when the premises was sealed but yet were liable to pay rs.55,000/- as per their own estimate towards electricity and water charges for the period from june 2007 to 20.01.2008 during which period the suit property was lying sealed, yet it denied rs.73,781/- was payable towards electricity and water charges.7. further the respondent urged it was liable to pay only rs.2,20,000/- towards rental for two months for april and may 2007. rfa no.314/2013 page 3 of 10 the respondent in its written statement denied of any damage caused to the suit property by it.8. during trial, the appellant examined pw1 mr.anil verma, his son who proved power of attorney in his favour as ex.pw1/1; lease deed ex.p1; letter dated 02.05.2007 along with postal receipts as ex.pw1/1a to ex.pw1/5; its acknowledgment cards as ex.pwand ex.pw1/7; letter dated 26.06.2007 as ex.pwand its postal receipts as mark a to mark d; letter dated 07.10.2007 as ex.pwalong with speed post receipt to establish the possession of the suit property was not handed over a per the terms of the lease deed.9. the appellant also wrote letters to the respondent to assist him in getting the premises desealed and such letters along with postal receipts were proved as ex.pw1/12 to ex.pw1/15 and its ad card viz ex.pwto ex.pw1/8. the suit property was desealed on 04.07.2008. thereafter on intimation to the respondent; the appellant had called an architect to inspect the premises and to ascertain the extent of damage caused by the respondent to the suit property. the appellant requested the respondent in such letter to be available in the premises on 12.07.2008 at 12.30 pm. the said letter dated 04.07.2008 is ex.p2 with ad cards ex.pw1/22 to ex.pw1/24. the architect / government approved valuer inspected the premises and found the suit property was badly damaged viz floors, walls and ceiling and its interior etc. there were cracks in flooring and interiors were in alleged broken condition etc. as per lease deed it was an obligation of the respondent to return the said premises to the appellant in the same condition as it was at the time of letting. the architect after inspection gave an estimate of rs.6,65,220/- for repairs and for restoring rfa no.314/2013 page 4 of 10 the suit property to its original condition. it was also alleged an amount of rs.73,781 (rs.59,880/- for electricity and rs.13,901/- for water charges) was due on account of water and electricity charges. the electricity bill dated 11.08.2008 and water bill dated 30.11.2007 were proved on record as mark e and mark f. the appellant called upon the respondent to pay the user charges with effect from 01.04.2007 @ rs.1,26,500/- till vacation as set out in para no24 of the affidavit. the security deposit of rs.6,60,000/- given by respondent at the time of letting was allegedly adjusted against the estimate of the architect and water/ electricity charges.10. the learned trial court qua the issue no.1 viz. “whether the plaintiff had not leased the suit premises to the defendant for commercial purposes?. opp” held as under:-""61. on the other hand, counsel for defendant has established by showing the contents of the lease deed and other documents that the property in question was leased out for commercial purposes.62. on the basis of submission of both the parties and on the basis of the contents of lease deed in question, there are a number of clauses in lease deed, which are suggestive of the fact that the property in question was leased out for commercial purpose and no reason has been specified by the plaintiff as to why the property has been given for residential purpose, the same is not mentioned specifically in the lease deed. in the absence of such specific mention of the residential use, shows the consent of the plaintiff to use the property commercially by the defendant and accordingly, i am of this confirm opinion that the plaintiff had leased out the suit premises to the defendant for commercial purpose, is decided accordingly." indirectly. issue no.1 though, 11. qua issue no.2 viz. whether the defendants had taken steps to renew the lease?. opd the learned trial court held in terms of clause no.2 of lease deed (supra) the respondent took steps to renew the lease deed by purchasing stamp papers. however, the counter claim of the rfa no.314/2013 page 5 of 10 respondent to an extent of rs.33,700/- was rejected in later part of the impugned judgment.12. on issue no.3 viz. whether the plaintiff is entitled to recovery of mesne profits/damages after sealing of the premises by mcd?. if so, at what rate?. op, the learned trial court held as under:-""79. i have carefully gone through the documents placed on record by both the parties, particularly the lease deed in question. from the perusal of lease deed, it appears that although no specific use was mentioned in the lease deed and issue no.1 has already been decided that both the parties entered into a lease deed for the suit property in question for commercial purpose only, though indirectly, i have no doubt in recording that the plaintiff had leased out her property for commercial use to the defendant. it has been seen in numerous cases that the residential premises are being given to other party for commercial use by searching a via-media in the documents which is called as lease deed, whereby the parties remained prima facie silent about the nature of tenancy but the true construction of the document renders the vary purpose of the tenancy. parties had such kind of an act for their own personal benefits as it is always in benefit of the landlord to rent out the residential premises for commercial use because it will fetch more rent for him. the suit property in question was leased out for an amount of rs. 1,10,000/- per month which may not be a rate of rent for residential purpose.80. on the other hand, it is also beneficial for tenant / lessee as they get the residential property to be used for commercial purpose on cheaper rates coupled with other charges in the form of house tax, electricity and water charges at residential rates.81. here, both the parties are at fault and they should not be allowed to take benefits of their own wrongs. it has been seen during the recent past that delhi is going to be hub of commercial projects in residential area creating a lot of nuisance value not only for the residents of that area but also for the general public at large.82. in this scenario, if the claim(s) stipulated by the plaintiffs or defendants be allowed, indirectly it would encourage the use of illegal practices i.e. using the residence for commercial purposes which is otherwise illegal. accordingly, i am of this confirm opinion that plaintiff is not entitled for recovery of any damages / mesne profits after sealing of premises by mcd as she herself is a contributory to this wrong.83. the perusal of site plan and lease deed confirms this fact that the plaintiff was fully aware that she is giving the property not for residential purpose but for commercial use and accordingly, she is not allowed to be compensated for her own wrong. issue no.3 is decided accordingly." 13. on issue no.4, whether the defendant is in arrears of rent, electricity and other dues?. the learned trial court held the appellant was rfa no.314/2013 page 6 of 10 entitled to electricity and water charges till 20.01.2008 and qua damage to the suit property, the learned trial court observed the appellant was not entitled to any damages as both the parties were contributor to its illegal use, hence the rental for the period till the premises was desealed was not granted. even the counter claim of the respondent was rejected and the respondent was only held entitled to seek recovery of security deposit.14. since the rights and liability of lessor and lessee are involved hence one may refer to section 108 (e) which notes:-"“108. rights and liabilities of lessor and lessee.—in the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:— (a) to (d) xxx xxx (e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void: provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision; (f) to (q) xxx xxx” 15. in chander mohan jain & others vs state bank of patiala & others 58(1995) dlt799the court held:-"“(3) it is stated in the reply that a part of the roof had collapsed on 13.10.1990, and the building was sealed by the new delhi municipal committee on 05.10.1990, by declaring it to be unsafe. section 108(e) of the transfer of property act, 1882, has remained unchanged since 1882. if the defendant/ tenant was so minded, it had the option of voiding the lease. it has not done so. so long as the lease has not been voided, the defendant bank is liable to pay the rent. (4) mr.j.k. seth relies on the case reported as 1973 rajdhani law reporter (note) 68, being s.a.o. no.30 of 1969 (chamber of colour and chemical pvt. ltd. v. trilok chand), where it was held by this court that a tenant cannot treat a lease as subsisting and suspend payment of rent. i am in respectful agreement.” rfa no.314/2013 page 7 of 10 16. in the chamber of colours and chemicals pvt limited vs trilok chand jain 9(1973) dlt510also the court held:-"“9. on the second point on merits, it is contended that it was the appellants’ right to suspend payment of rent on the destruction of the premises and upon the refusal of the respondent either to reconstruct it himself or permit the appellant to do so. let me first examine the position under the transfer of property act. in the case of the tenancy premises being wholly destroyed or rendered substantially and permanently unfit by fire etc. for the purpose for which it was let, the only right given to the lessee by section 108(e) of the transfer of the property act is to exercise the option of treating the lease deed to be void. in such a case the lessee cannot continue to hold on to the premises or say that the lease continues but he will not pay the rent. if the lessee does not exercise the option to treat the lease to be void, he will remain liable to pay the rent.” 17. i have gone through the impugned judgment passed by the learned trial court. the learned trial court has granted rentals @ rs.1,10,000/- per month only for the period of april and may 2007. the lease deed ex.p1 provides for an increase of 15% of the last paid rental after its expiry of 3 years. admittedly the lease expired on 31.03.2007 and if the premises was to be re-let or to be used by the tenant then its rental in any case ought to have been more than rs.1,10,000/- per month. the learned trial court has already noted the respondent had taken steps for renewal of the lease deed. thus if the lease was to be renewed it ought to have been renewed @ rs.1,26,500/- per month. now even if it was never renewed, the best criteria to determine the rate of mesne profits was only to look into the terms of lease in the absence of any other evidence. admittedly if the lease was not extended the respondent was then to be considered as an unauthorised occupant of the premises, situated in a commercial area i.e. green park main market, new delhi hence the user charges/mesne profits with 15% increase of last paid rent were most reasonable. thus user charge @ rs.1,26,500/- per month ought to have been granted w.e.f. 1st april, 2007 till the respondent vacated the rfa no.314/2013 page 8 of 10 premises i.e. till 20.01.2008 when admittedly the possession was delivered by the respondent to the appellant. the respondent nowhere has alleged in its written statement that it had vacated or handed over the possession of the premises to the appellant prior to 20.01.2008 or had given any notice to the appellant for making the lease void, per section 108(e) of the transfer of the property act.18. in the circumstances, the appellant is entitled to recover mesne profits/user charges @ rs.1,26,500/- per month with effect from 01.04.2007 till 20.01.2008 when the suit property was handed over to the appellant.19. qua recovery of an estimate of rs.6,62,220/- the learned trial court rightly refused the same as only an estimate was proved, without any evidence of actual expenses incurred. thus one cannot say about the extent of amount spent on the premises or if the expresses incurred were only for a normal wear and tear.20. the learned trial court held the respondent liable to pay water and electricity charges till 20th january 2008 and this finding need no interference.21. for the reasons aforesaid, the appeal stands disposed of. the impugned judgment passed by learned trial court stands modified to the extent the respondent to pay user charges/mesne profits @ rs.1,26,500/- per month w.e.f. 01.04.2007 till 20.01.2008, as also the water and electricity charges (as per actuals) till 20.01.2008. the respondent on the other hand shall be entitled to refund of security deposit if it clears the arrears stated above within 4 weeks from today; lest the security amount rfa no.314/2013 page 9 of 10 need be adjusted against such arrears and balance to be paid by the respondent to the appellant herein. the decree sheet be accordingly drawn. the pending application, if any, stands disposed of. no order as to costs. yogesh khanna, j.november25 2019 m rfa no.314/2013 page 10 of 10
Judgment:

IN THE HIGH COURT OF DELHI AT NEW DELHI $~ * % Reserved on:

21. t November, 2019 Decided on :

25. h November, 2019 + RFA3142013 ..... Appellant Through : Mr.Naveen Kr Chaudhary, Adv. versus MRS BASANT VERMA M/S NAMDHARI SEEDS ..... Respondent CORAM: HON'BLE MR. JUSTICE YOGESH KHANNA Through : None YOGESH KHANNA, J.

1. Per order dated 26.09.2019, none appeared on behalf the respondent despite service.

2. This appeal is preferred by the appellant/plaintiff against the judgment and decree dated 30.03.2013 passed by the learned Additional District Judge-02/South District, Saket Courts, New Delhi (hereinafter referred as the learned ‘Trial Court’) in CS No.53/2011 whereby the suit of the appellant for recovery of Rs.19,93,065/- along with interest was partly decreed and disposed of.

3. a) The brief facts are:-

"the appellant / plaintiff had given the Ground Floor premises of Property bearing No.H-6, Green Park Main, New Delhi - 110016 (hereinafter referred to as the 'suit property') on rent to the respondent vide lease deed dated 27.04.2004 on a monthly rental of Rs.1,10,000/- for a period of three years; RFA No.314/2013 Page 1 of 10 b) the lease deed contained clause No.2 to the effect”- "The Lease shall be renewable thereafter at the sole option of the Lessee for further three year periods. The aforesaid rent will be subject to an enhancement of 15% on the last rent payable at the expiry of each three year period. The Lessee shall show his Intention by Registered Post A fresh Lease will be executed and Registered after every three years."

c) on 31.03.2007 the lease expired by efflux of time and on 02.05.2007, 26.06.2007 and 07.10.2007 the appellant allegedly called upon the respondent to hand over the vacant and peaceful possession of the suit property and sent letters on the abovesaid dates by registered AD post; d) on 31.03.2007 the premises while in use of the respondent was sealed by the MCD since was being used in contravention of the rules and byelaws of the MCD; e) on 17.08.2007 the premises was temporary desealed by the MCD for a period of three days on an application of the respondent, during which period the respondent removed its material and goods from the premises; f) on 20.01.2008 the respondent handed over notional possession of the suit property to the appellant and on 04.07.2008 the premises was permanently desealed by the MCD; g) on 12.07.2008, an architect inspected the suit property in the presence of Mr.Tehal Singh, a representative of the respondent and Mr.Anil Verma, son of the appellant to assess the damage caused to the suit property, h) thereafter, on 11.11.2008, a legal notice was issued by the appellant to the respondent. The respondent sent reply dated 18.11.2008; and RFA No.314/2013 Page 2 of 10 i) on 28.02.2009 this recovery suit was filed by appellant; disposed of by the learned Trial Court vide the impugned judgment.

4. It is the submission of the appellant a) the suit property was vacated by the respondent on 20.01.2008, yet the learned Trial Court awarded only two months’ rental and that too at the old rate i.e., @ Rs.1,10,000/- pm; b) the water and electricity charges were not granted till 20.01.2008; and c) architect report was never considered and no amount on account of damage to the premises was given.

5. The learned counsel for the appellant argued, if the lease was to be renewed, the respondent was required to pay rental with 15% increase on the last paid rent, hence rental for the period from 01.04.2007 ought to have been increased to Rs.1,26,500/- per month, yet the learned Trial Court granted rent for two months i.e. for April and May 2007 @ Rs.1,10,000/- per month only, despite the learned Trial Court having held the respondent wished to renew the lease and had even purchased stamp papers worth Rs.33,700/-.

6. The defence of the respondent as culled out in the written statement was they had paid the water and electricity charges upto May 2007 when the premises was sealed but yet were liable to pay Rs.55,000/- as per their own estimate towards electricity and water charges for the period from June 2007 to 20.01.2008 during which period the suit property was lying sealed, yet it denied Rs.73,781/- was payable towards electricity and water charges.

7. Further the respondent urged it was liable to pay only Rs.2,20,000/- towards rental for two months for April and May 2007. RFA No.314/2013 Page 3 of 10 The respondent in its written statement denied of any damage caused to the suit property by it.

8. During trial, the appellant examined PW1 Mr.Anil Verma, his son who proved Power of Attorney in his favour as Ex.PW1/1; lease deed Ex.P1; letter dated 02.05.2007 along with postal receipts as Ex.PW1/1A to Ex.PW1/5; its acknowledgment cards as Ex.PW
and Ex.PW1/7; letter dated 26.06.2007 as Ex.PW
and its postal receipts as Mark A to Mark D; letter dated 07.10.2007 as Ex.PW
along with speed post receipt to establish the possession of the suit property was not handed over a per the terms of the lease deed.

9. The appellant also wrote letters to the respondent to assist him in getting the premises desealed and such letters along with postal receipts were proved as Ex.PW1/12 to Ex.PW1/15 and its AD Card viz Ex.PW
to Ex.PW1/8. The suit property was desealed on 04.07.2008. Thereafter on intimation to the respondent; the appellant had called an architect to inspect the premises and to ascertain the extent of damage caused by the respondent to the suit property. The appellant requested the respondent in such letter to be available in the premises on 12.07.2008 at 12.30 PM. The said letter dated 04.07.2008 is Ex.P2 with AD cards Ex.PW1/22 to Ex.PW1/24. The architect / government approved valuer inspected the premises and found the suit property was badly damaged viz floors, walls and ceiling and its interior etc. There were cracks in flooring and interiors were in alleged broken condition etc. As per lease deed it was an obligation of the respondent to return the said premises to the appellant in the same condition as it was at the time of letting. The architect after inspection gave an estimate of Rs.6,65,220/- for repairs and for restoring RFA No.314/2013 Page 4 of 10 the suit property to its original condition. It was also alleged an amount of Rs.73,781 (Rs.59,880/- for electricity and Rs.13,901/- for water charges) was due on account of water and electricity charges. The electricity bill dated 11.08.2008 and water bill dated 30.11.2007 were proved on record as Mark E and Mark F. The appellant called upon the respondent to pay the user charges with effect from 01.04.2007 @ Rs.1,26,500/- till vacation as set out in para No24 of the affidavit. The security deposit of Rs.6,60,000/- given by respondent at the time of letting was allegedly adjusted against the estimate of the architect and water/ electricity charges.

10. The learned Trial Court qua the issue No.1 viz. “Whether the plaintiff had not leased the suit premises to the defendant for commercial purposes?. OPP” held as under:-

""61. On the other hand, counsel for defendant has established by showing the contents of the Lease Deed and other documents that the property in question was leased out for commercial purposes.

62. On the basis of submission of both the parties and on the basis of the contents of Lease Deed in question, there are a number of clauses in Lease Deed, which are suggestive of the fact that the property in question was leased out for commercial purpose and no reason has been specified by the plaintiff as to why the property has been given for residential purpose, the same is not mentioned specifically in the Lease Deed. In the absence of such specific mention of the residential use, shows the consent of the plaintiff to use the property commercially by the defendant and accordingly, I am of this confirm opinion that the plaintiff had leased out the suit premises to the defendant for commercial purpose, is decided accordingly."

indirectly. Issue no.1 though, 11. Qua issue No.2 viz. Whether the defendants had taken steps to renew the lease?. OPD the learned Trial Court held in terms of clause No.2 of lease deed (supra) the respondent took steps to renew the lease deed by purchasing stamp papers. However, the counter claim of the RFA No.314/2013 Page 5 of 10 respondent to an extent of Rs.33,700/- was rejected in later part of the impugned judgment.

12. On issue No.3 viz. Whether the plaintiff is entitled to recovery of mesne profits/damages after sealing of the premises by MCD?. If so, at what rate?. OP, the learned Trial Court held as under:-

""79. I have carefully gone through the documents placed on record by both the parties, particularly the Lease Deed in question. From the perusal of Lease Deed, it appears that although no specific use was mentioned in the Lease Deed and issue No.1 has already been decided that both the parties entered into a Lease Deed for the suit property in question for commercial purpose only, though indirectly, I have no doubt in recording that the plaintiff had leased out her property for commercial use to the defendant. It has been seen in numerous cases that the residential premises are being given to other party for commercial use by searching a via-media in the documents which is called as Lease Deed, whereby the parties remained prima facie silent about the nature of tenancy but the true construction of the document renders the vary purpose of the tenancy. Parties had such kind of an act for their own personal benefits as it is always in benefit of the landlord to rent out the residential premises for commercial use because it will fetch more rent for him. The suit property in question was leased out for an amount of Rs. 1,10,000/- per month which may not be a rate of rent for residential purpose.

80. On the other hand, it is also beneficial for tenant / lessee as they get the residential property to be used for commercial purpose on cheaper rates coupled with other charges in the form of house tax, electricity and water charges at residential rates.

81. Here, both the parties are at fault and they should not be allowed to take benefits of their own wrongs. It has been seen during the recent past that Delhi is going to be hub of commercial projects in residential area creating a lot of nuisance value not only for the residents of that area but also for the general public at large.

82. In this scenario, if the claim(s) stipulated by the plaintiffs or defendants be allowed, indirectly it would encourage the use of illegal practices i.e. using the residence for commercial purposes which is otherwise illegal. Accordingly, I am of this confirm opinion that plaintiff is not entitled for recovery of any damages / mesne profits after sealing of premises by MCD as she herself is a contributory to this wrong.

83. The perusal of site plan and Lease Deed confirms this fact that the plaintiff was fully aware that she is giving the property not for residential purpose but for commercial use and accordingly, she is not allowed to be compensated for her own wrong. Issue No.3 is decided accordingly."

13. On issue No.4, Whether the defendant is in arrears of rent, electricity and other dues?. the learned Trial Court held the appellant was RFA No.314/2013 Page 6 of 10 entitled to electricity and water charges till 20.01.2008 and qua damage to the suit property, the learned Trial Court observed the appellant was not entitled to any damages as both the parties were contributor to its illegal use, hence the rental for the period till the premises was desealed was not granted. Even the counter claim of the respondent was rejected and the respondent was only held entitled to seek recovery of security deposit.

14. Since the rights and liability of lessor and lessee are involved hence one may refer to Section 108 (e) which notes:-

"“108. Rights and liabilities of lessor and lessee.—In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:— (a) to (d) xxx xxx (e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void: Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision; (f) to (q) xxx xxx” 15. In Chander Mohan Jain & Others vs State Bank of Patiala & Others 58(1995) DLT799the Court held:-

"“(3) It is stated in the reply that a part of the roof had collapsed on 13.10.1990, and the building was sealed by the New Delhi Municipal Committee on 05.10.1990, by declaring it to be unsafe. Section 108(e) of the Transfer of Property Act, 1882, has remained unchanged since 1882. If the defendant/ tenant was so minded, it had the option of voiding the lease. It has not done so. So long as the lease has not been voided, the defendant bank is liable to pay the rent. (4) MR.J.K. Seth relies on the case reported as 1973 Rajdhani Law Reporter (Note) 68, being S.A.O. No.30 of 1969 (Chamber of Colour and Chemical Pvt. Ltd. v. Trilok Chand), where it was held by this Court that a tenant cannot treat a lease as subsisting and suspend payment of rent. I am in respectful agreement.” RFA No.314/2013 Page 7 of 10 16. In The Chamber of Colours and Chemicals Pvt Limited vs Trilok Chand Jain 9(1973) DLT510also the Court held:-

"“9. On the second point on merits, it is contended that it was the appellants’ right to suspend payment of rent on the destruction of the premises and upon the refusal of the respondent either to reconstruct it himself or permit the appellant to do so. Let me first examine the position under the Transfer of Property Act. In the case of the tenancy premises being wholly destroyed or rendered substantially and permanently unfit by fire etc. for the purpose for which it was let, the only right given to the lessee by Section 108(e) of the Transfer of the Property Act is to exercise the option of treating the lease deed to be void. In such a case the lessee cannot continue to hold on to the premises or say that the lease continues but he will not pay the rent. If the lessee does not exercise the option to treat the lease to be void, he will remain liable to pay the rent.” 17. I have gone through the impugned judgment passed by the learned Trial Court. The learned Trial Court has granted rentals @ Rs.1,10,000/- per month only for the period of April and May 2007. The lease deed Ex.P1 provides for an increase of 15% of the last paid rental after its expiry of 3 years. Admittedly the lease expired on 31.03.2007 and if the premises was to be re-let or to be used by the tenant then its rental in any case ought to have been more than Rs.1,10,000/- per month. The learned Trial Court has already noted the respondent had taken steps for renewal of the lease deed. Thus if the lease was to be renewed it ought to have been renewed @ Rs.1,26,500/- per month. Now even if it was never renewed, the best criteria to determine the rate of mesne profits was only to look into the terms of lease in the absence of any other evidence. Admittedly if the lease was not extended the respondent was then to be considered as an unauthorised occupant of the premises, situated in a commercial area i.e. Green Park Main Market, New Delhi hence the user charges/mesne profits with 15% increase of last paid rent were most reasonable. Thus user charge @ Rs.1,26,500/- per month ought to have been granted w.e.f. 1st April, 2007 till the respondent vacated the RFA No.314/2013 Page 8 of 10 premises i.e. till 20.01.2008 when admittedly the possession was delivered by the respondent to the appellant. The respondent nowhere has alleged in its written statement that it had vacated or handed over the possession of the premises to the appellant prior to 20.01.2008 or had given any notice to the appellant for making the lease void, per Section 108(e) of the Transfer of the Property Act.

18. In the circumstances, the appellant is entitled to recover mesne profits/user charges @ Rs.1,26,500/- per month with effect from 01.04.2007 till 20.01.2008 when the suit property was handed over to the appellant.

19. Qua recovery of an estimate of Rs.6,62,220/- the learned trial court rightly refused the same as only an estimate was proved, without any evidence of actual expenses incurred. Thus one cannot say about the extent of amount spent on the premises or if the expresses incurred were only for a normal wear and tear.

20. The learned Trial Court held the respondent liable to pay water and electricity charges till 20th January 2008 and this finding need no interference.

21. For the reasons aforesaid, the appeal stands disposed of. The impugned judgment passed by learned Trial Court stands modified to the extent the respondent to pay user charges/mesne profits @ Rs.1,26,500/- per month w.e.f. 01.04.2007 till 20.01.2008, as also the water and electricity charges (as per actuals) till 20.01.2008. The respondent on the other hand shall be entitled to refund of security deposit if it clears the arrears stated above within 4 weeks from today; lest the security amount RFA No.314/2013 Page 9 of 10 need be adjusted against such arrears and balance to be paid by the respondent to the appellant herein. The decree sheet be accordingly drawn. The pending application, if any, stands disposed of. No order as to costs. YOGESH KHANNA, J.

NOVEMBER25 2019 M RFA No.314/2013 Page 10 of 10