JUDGMENT
R.C. Chopra, J.
1. This suit for possession and mesne profits was instituted by the plaintiff (HUF) on the allegations that the plaintiff was a tenant in respect of Flat No.29 (First Floor), Regal Building, Parliament Street, Connaught Place, New Delhi, since January, 1964 and with the prior permission of the landlords it had sub-let the said premises to United Industrial Bank Limited, Calcutta. The sub- lease dated 18th May, 1987, which was duly registered with the Sub Registrar, provided that the sub-lease would be for a period of ten years with effect from 1st February, 1987, and monthly rental would be Rs.10,500/-. The sub-tenant M/s. United Industrial Bank Limited paid rent up to 30th June, 1989 and thereafter started committing defaults. On enquiries, the plaintiff was informed that it had stopped paying the rent in view of the Notification dated 10th June, 1989, issued by Reserve Bank of India by which the said Bank was placed under a moratorium. The plaintiff, however, alleged that the moratorium had placed no restriction on the payment of rent but still the Bank was not paying the rent for the use and occupation of the premises in question. In June, 1989, a flat just above the rented premises with United Industrial Bank got damaged and as such was sealed by N.D.M.C. The N.D.M.C., however, sealed the suit flat also which was with United Industrial Bank. According to plaintiff, M/s. United Industrial Bank did not oppose or object to the sealing of the flat by N.D.M.C. and it was instrumental in getting the said flat unnecessarily sealed by N.D.M.C. The plaintiff alleged that the defendant was liable to pay rent for that period also during which the flat remained sealed by N.D.M.C. According to the plaintiff, it was at the initiative of the plaintiff only that the M.C.D. Appellate Tribunal ordered immediate de-sealing of the suit flat and as such it was opened on 19th September, 1989.
2. The plaintiff further alleged that in terms of the Deed of Sub-Lease, United Industrial Bank had no right to assign or part with possession of the property in question to any person but still the Manager of United Industrial Bank informed the plaintiff that it was likely to be closed or merged with some other Bank. The tenant, M/s. United Industrial Bank got amalgamated with the defendant, Allahabad Bank, and the possession of the suit premises as well as its assets were handed over to Allahabad Bank. The plaintiff gave a notice dated 29th September, 1989, to M/s. United Industrial Bank demanding rent and complaining that its cheques were not being honoured. The plaintiff filed a suit also but in spite of injunction orders dated 25th October, 1989 issued by learned Senior Sub Judge, Delhi, restraining M/s. United Industrial Bank to hand over possession of the premises to anybody, it handed over the possession of premises to defendant-Allahabad Bank. The plaintiff claimed possession as well as rent/damages in the sum of Rs.16,85,500/- with interest at the rate of 21.5% per annum from the defendant- Bank. The plaintiff challenged the vires of Section 45 of the Banking Regulation Act, 1949 also, by virtue of which the tenancy of the premises was sought to be transferred to the defendant-Bank and disputed the right of M/s. United Industrial Bank to assign the tenancy rights in favor of defendant along with possession without the consent of the plaintiff. The plaintiff also referred to its notice dated 30th June, 1990, by which the defendant-Bank was advised not to make any entry in the Bank account of the plaintiff inasmuch as the plaintiff’s account already stood closed in terms of the instructions given by the plaintiff. The plaintiff, therefore, claimed rent/damages from 1st November, 1989 to 31st January 1990 at the rate of Rs.10,500/- per month, from 1st February, 1990 to 31st January, 1993 at the rate of Rs.16,000/- per month and from 1st February, 1993 to 31st January, 1997 at the rate of Rs.22,000/- per month totalling Rs.16,85,500/- with interest. Alleging that the defendant was in unauthorised possession, the plaintiff claimed damages also at the rate of Rs.2,000/- per day for use and occupation of the suit premises with effect from 30th October, 1989, till the date of handing over of the possession. The credit balance lying in the account of the plaintiff and interest on damages were calculated in paragraph 24(iii) of the plaint and a decree in the sum of Rs.23,08,320/- with costs and interest and future damages at the rate of Rs.2,000/- per day up to 31st October, 1992, and thereafter Rs.3,000/- per day with enhancement by 50% every three years was also claimed. A money decree in the sum of Rs.68,043/- was also claimed on account of credit lying in the Bank Account of the plaintiff.
3. In its written statement, the defendant raised a preliminary objection that the plaintiff could not raise any plea on behalf of M/s. Smarts Pvt. Ltd., which was a totally different legal entity. The sub-tenancy created by the plaintiff was admitted and it was pleaded that there was no default in the payment of rent up to June, 1989. According to defendant, the ceiling of the flat above the tenancy of the defendant caved in, causing extreme damage to the property of the defendant and as such suit premises became unusable and were sealed by N.D.M.C. M/s. United Industrial Bank, therefore, was unable to function and forced to take alternative accommodation at Akash Deep Building, Barakhamba Road, New Delhi. A notice dated 15th July, 1989, was given to the plaintiff informing the plaintiff that no rent would be paid till necessary repairs were carried out and the seals were removed by N.D.M.C. It was also stated that the rent was being credited to the account of the plaintiff as and when it had fallen due. It was denied that M/s. United Industrial Bank was responsible for the sealing of the premises or damage to the premises. It was stated that N.D.M.C. had done the sealing under the powers vested in it. It was stated that since a moratorium had been put upon M/s. United Industrial Bank under Sub-section (3) of Section45 of the Banking Regulation Act, it could not make any payment to any debtor of the Bank. It was denied that the plaintiff had closed its Bank Account in terms of the rules and regulations/Branch Instruction Manual of the Bank. It was pleaded that initially M/s. United Industrial Bank was put under moratorium vide Notification dated 10th June, 1989 and thereafter vide Notification dated 30th October, 1989, published in the Official Gazette of India, all the rights, assets and properties of M/s. United Industrial Bank were transferred and amalgamated with Allahabad Bank. Since this merger was under an Act of Parliament, the premises got automatically transferred to Allahabad Bank, which became plaintiff’s sub-tenant in respect thereof. It was denied that the defendant was liable to pay any damages or there was any privity of contract between the plaintiff and defendant-Allahabad Bank. It was stated that the defendant-Bank had become a lawful sub-tenant under the plaintiff by an Act of Parliament. The credit balance, as pleaded by the plaintiff, amounting to Rs.4,91,700/- in its account was disputed. It was stated that the credit balance shown in the plaintiff’s account with the defendant-Bank was Rs.1,57,972.90 only. A counter-claim in the sum of Rs.16,826/- was also filed against the plaintiff in regard to the expenses incurred by the defendant-Bank in the repairs of the suit premises. The plaintiff filed a replication to the written statement controverting the pleadings raised by the defendant. On the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff proves that on account of the amalgamation of United Industrial Bank with the Allahabad Bank, the defendant, i.e. Allahabad Bank is in unauthorised occupation?
2. Whether the plaintiff proves that the tenancy of the defendant has been legally terminated?
3. Whether the plaintiff is entitled to mesne profits? If yes, from which date and at what rate?
4. Whether the defendant, by way of counter-claim, is entitled to Rs.16,826. 85, as averred in written statement?
5. To what relief, if any, the plaintiff/ defendant is entitled to?
6. What order and decree?
4. The plaintiff moved IA No.1383/1997 under Order XII Rule 6 CPC seeking a decree of possession against the defendant. This application was disposed of by the Court vide orders dated 28th January, 1998. A decree for recovery of possession was passed in favor of the plaintiff and against the defendant wherein it was held that the defendant was a lawful tenant/occupant of the premises till 1st February, 1997 when the lease came to an end by efflux of time. Issues No.1 and 2 were disposed of by the said order.
5. The plaintiff went in appeal against the orders dated 28th January, 1998. The Appellate Court in RFA(OS) No.102/1998 allowed the appeal filed vide orders dated 27th May, 1999 and held that there was no occasion for the learned Single Judge to decide Issues No.1 and 2 while disposing of the plaintiff’s application under Order XII Rule 6 CPC holding the defendant to be a lawful tenant/occupant of the suit flat till 1st February, 1997 and exonerating it to pay damages till that date. Therefore, the findings on Issues No.1 and 2 as disposed of by the learned Single Judge vide orders dated 28th January, 1998, were reversed. In support of its case, the plaintiff has examined six PWs. PW-1, Shri. K. Kishore, is the Karta of the plaintiff HUF, PW-2, Shri T.K. Chatterjee, is an Architect, PW-3, Shri Raj Bhasin, is a Property Dealer, PW-4, Shri G.S. Negi, is Manager-Administration. M/s Allied Signals of Dr. Gopal Dass Tower, PW-5, Shri Navnit Singh is the Director, HSBC Bank and PW-6, Shri R.C. Kishore Saxena, is Head Assistant, NDMC. The defendant has examined four DWs. DW-1, Shri Jitender Batra, is an Officer of the defendant/Bank, DW-2, Ms. Sunita Aggarwal, is also a Senior Manager of the defendant/Bank, DW-3, Shri K.L. Tandon, is another officer of the defendant/Bank, DW-4, Shri O.P. Malkotia, a Computer Operator, is from State Bank of Patiala, Parliament Street. I have heard learned counsel for the plaintiff and learned counsel for the defendant. I have gone through the records. My findings on the issues are as under:- Issue No.1 The case of the plaintiff is that its tenant-United Industrial Bank had no right to sub-let the tenanted premises to anybody else and as such the handing over of the possession of the suit premises to Allahabad Bank on account of the amalgamation of United Industrial Bank did not affect the plaintiff’s rights under the Sub-lease (Ex.P-12) executed in favor of United Industrial Bank and as such Allahabad Bank was in unauthorised occupation of the suit premises. To the contrary, the plea of the defendant is that vide a Notification dated 30th October, 1989, issued by Government of India, the United Industrial Bank was amalgamated with Allahabad Bank and as such neither it was a case of parting with the possession nor sub-letting. As such, the occupation of the suit premises by Allahabad Bank was not unauthorised and it became a sub-tenant under the plaintiff. After going through the evidence on record and the Notification dated 30th October, 1989, (Ex. PX-2) published in the Gazette of India, by which the United Industrial Bank was amalgamated with Allahabad Bank, this Court is of the considered view that since the amalgamation was by an Act of Parliament, it could not be said that United Industrial Bank had voluntarily and unauthoriszedly inducted Allahabad Bank into the suit premises or had parted with the possession thereof. The case of the plaintiff that the possession of Allahabad Bank was unauthorised for an additional reason that there was an ad interim injunction issued by a Civil Court directing United Industrial Bank to maintain status quo in respect of the suit premises cannot be accepted for the reason that United Industrial Bank, the tenant of the plaintiff, had not voluntarily handed over the possession of the suit premises to Allahabad Bank but the assets of this Bank were transferred to Allahabad Bank on account of the Notification issued by the Finance Ministry on 30th October, 1989 by which the United Industrial Bank was amalgamated with Allahabad Bank. Therefore, neither there was voluntary parting of possession nor amalgamation on the part of United Industrial Bank and as such it cannot be said that the tenant- United Industrial Bank had sub-let or parted with possession of the suit premises without the consent of the plaintiff and as such the possession of Allahabad Bank was unauthorised. The issue stands answered against the plaintiff.
6. Issue No.2 The evidence on record shows that the suit premises were let out by the plaintiff to United Industrial bank vide a registered Sub-lease dated 18th May, 1987 which is (Ex.P-12). The letting was for a period of ten years with effect from 1st February, 1987.
7. According to the plaintiff, from 1st July, 1989 to June, 1993, the defendant committed continuous defaults in the payment of monthly rent. The affidavit of the plaintiff says so. It is also shown on record that under the orders of the High Court only, the defendant paid arrears of rent. The plea of the defendant that it was depositing the rent in the account of plaintiff maintained in its Branch is not properly proved inasmuch as it is not shown on record that the rent was being paid regularly. Moreover, after the notices issued by plaintiff, the defendant had no authority to deposit rent in the account of the plaintiff and as such it can be safely said that the defendant was not paying rent regularly and, therefore, in terms of the Lease Deed the plaintiff was well within its rights to terminate the tenancy of the defendant. The right of the plaintiff to terminate the tenancy created vide Sub-lease (Ex.P-12) remained unfettered even after the amalgamation of the United Industrial Bank with Allahabad Bank as Allahabad Bank also was bound by the terms and conditions of the said Sub-lease. The tenancy was terminated vide notice `Ex.PW-1/28′ on the ground that the defendant was defaulting in payment of rent. Notice `Ex.PW-1/23′ was for terminating the tenancy on the ground of sub- letting which was not a valid ground available to plaintiff. As such the issue stands disposed of by holding that the tenancy was finally terminated by the plaintiff with effect from 16th February, 1992, vide notice `Ex.PW-1/28′ dated 20th December, 1991. Issue No.3 The plaintiff is claiming rent/damages with effect from 1st November, 1989 to 31st January, 1990 at the rate of Rs.10,500/- per month, from 1st February, 1990 to 31st January, 1993, at the rate of Rs.16,000/- per month and from 1st February, 1993 to 31st January, 1997 at the rate of Rs.22,000/- per month. Besides, the plaintiff is also claiming damages at the rate of Rs.2,000/- per day and enhanced damages at the rate of Rs.3,000/- per day with effect from 30th October, 1989. Since the tenancy was terminated with effect from 16th February, 1992, this Court has to determine on the basis of the evidence on record as to how much amount the plaintiff is entitled to as rent and as damages and mesne profits with effect from 16th February, 1992. The plaintiff is claiming agreed rate of rent from 1st November, 1989 to 31st January, 1990. There is no difficulty in awarding rent at the rate of Rs.10,500/- per month for this period in terms of sub-lease `Ex.P-12′. From 1st February, 1990 to 15th February, 1992 also, the plaintiff is entitled to rent at the rate of Rs.16,000/- per month. From 16th February, 1992 to 31st January, 1997, the plaintiff is claiming rent at the rate of Rs.22,000/- per month in terms of `Ex.P-12′. The damages/mesne profits are awardable to plaintiff up to 31st March, 1999, from the date of termination of tenancy when the possession of suit premises was handed by defendant to plaintiff in terms of the decree passed by Court. Of course, the rent already paid by defendant to plaintiff would be deductible from the amount held payable by defendant. In paragraphs 31 and 33 of the affidavit of PW-1, the plaintiff has given details of the suit property and prevalent market rent of similarly situated properties in and around Connaught Place. He has examined PW-2, Shri T.K. Chatterjee, an Architect/Town Planner who has given details of monthly rent of suit premises in his report `Ex.PW-2/2′. PW-3, Raj Bhasin, has also given details of suit property and similar properties in the area with their market rate of rent. Lease Deeds (Exs. PW-6/2, PW-4/1, PW-5/1, PW-5/2 to PW-5/7, PW- 6/3 and PW-6/4, PW-6/6 and PW-6/7) are regarding properties at Barakhamba Road and Parliament Street which are much better properties and in comparatively better areas than the one in which suit premises are situated. (Ex.PW-6/3) is regarding lease of properties at Sansad Marg which was executed in the year 1993 for nine years at the rate of Rs.40/- per sq.ft. The defendant has examined DW-1. on this question who has stated that similarly situated properties were attracting a rental of Rs.30/- to Rs.50/- per square feet. He was making this statement in the year 1997 and as such the said rate of rental is of the year 1997. After examining the statements of the witnesses examined by the plaintiff as well as the defendant, this Court finds that there is enormous difference between the rates of rent as deposed to by the plaintiff’s witnesses and the defendant’s witness DW-1. Documentary evidence has been produced to establish the rate of rent of the similarly situated properties in the area but those properties are new with many facilities and in better parts of New Delhi. The burden of proving the rate of rent was upon the plaintiff. The witnesses produced by the plaintiff have come out with rates which appear to be highly inflated. Rent deeds of other properties in the area have been produced on record but these do not establish as to what were the rates of rent of properties similar to suit property between 1992 and 1999. The plaintiff’s property was old and dilapidated and as such not at all comparable to new multi- storeyed buildings at Barakhamba Road and around which offered extra facilities to occupants. In the absence of satisfactory evidence to prove year-wise market rate of rent of similar properties, this Court can fall back upon the statement of DW-1 and hold that at least Rs.30/- per square feet was the rate of rent for the similarly situated properties in the area from the year 1992 to the year 1999. The suit premises were handed back by the defendant to the plaintiff under the orders of this Court in 1999. This Court, therefore can safely hold that the suit premises could be let out by the plaintiff at the rate of Rs.30/- per square feet per month from the year 1992 itself if the defendant had vacated the premises after the termination of the tenancy on account of the default in payment of rent. The plaintiff is, therefore, held entitled to damages at the rate of Rs.30/- per square feet per month from 17th February, 1992 to 31st March, 1999. The area of the suit premises was 2200 square feet which makes the plaintiff entitled to damages at the rate of Rs.66,000/- per month. Accordingly, the rent/damages to which the plaintiff is entitled are as under:-
(i) Rent from 1st November, 1989 to 31st January, 1990 at the agreed rate of rent of Rs.10,500/- per month = Rs.31,500/-.
(ii) Rent from 1st February, 1990 to 16th February, 1992 at the agreed rate of rent of Rs.16,000/- per month = Rs.3,68,000/-.
(iii) Damages from 17th February, 1992 to 31st March, 1999 at the rate of Rs.30/- per square feet, i.e, Rs.66,000/- per month = Rs.56,43,000.
8. In view of the award of damages for the period 17th February, 1992 to 31st March, 1999, at the enhanced rate the plaintiff is not entitled to damages of Rs.2,000/- per day as claimed in the suit. The awarded damages are already more than Rs.2,000/- per day. The issue, therefore, stands disposed of by holding that the plaintiff is entitled to a sum of Rs.60,42,500/- as rent and damages for the period 1st November, 1989 to 31st March, 1999. The amount of rent already paid by the defendant to the plaintiff from time to time amounting to Rs.18,49,000/- and under orders of the Court amounting to Rs.5,75,797.91p shall, however, be deductible from the aforesaid amount to which the plaintiff has been held entitled above. The issue stands answered. Issue No.4 The burden of proving this issue was on the defendant inasmuch as the defendant had raised a plea that on account of caving of the ceiling, the suit premises had become unusable and and the defendant had to move out of the premises and as such it was entitled to a sum of Rs.16,826.85. The plaintiff repudiated the averments made by the defendant in its counter-claim and pleaded that nothing had happened to the suit premises and the defendant had played mischief by getting the suit premises sealed by NDMC. After perusing the evidence on record, this Court finds that the defendant has not led satisfactory evidence on record to establish that it is entitled to the counter-claim of Rs.16,826.85 on the averments made in the written statement. This issue, therefore, stands answered against the defendant. Issue No.5 In view of the decision of the aforesaid issues, it is held that the plaintiff is entitled to a decree in the sum of Rs.36,17,702.09 with costs. This amount has been arrived at after deducting a sum of Rs.18,49,000/- which is shown to have been paid by the defendant to the plaintiff towards rent/damages and a sum of Rs.5,75,797.91p which was paid by the defendant to the plaintiff under the orders of the Court. This issue, stands disposed of accordingly. Issue No.6 A decree in the sum of Rs.36,17,702.09 with costs is passed in favor of the plaintiff and against the defendant. The plaintiff is also entitled to future interest on this amount at the rate of 9% per annum from the date of the decree till realisation. Decree sheet be prepared accordingly.