* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: March 31, 2011
Judgment pronounced on: April 25, 2011
+
C.S. (OS) No. 1626/1996 &
I.A. No. 6071/2007
% M/s. Vishwanath Khanna & Sons, HUF ... Plaintiffs
Through: Mr. Harish Malhotra, Senior
Advocate with Mr. Rajinder
Agarwal, Advocate
versus
Bank of Baroda ... Defendant
Through: Mr. Pramod B. Agarwala, Ms.
Praveena Gautam and Mr. Rajan
Bhati, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local
papers may be allowed to see the
judgment?
2. To be referred to Reporter or not? No.
3. Whether the judgment should be
reported in the Digest?
SUNIL GAUR, J.
I.A. No. 6071/2007 (under Order 22 Rule 2 CPC by the plaintiff) in
C.S. (OS) No. 1626/1996
1. The requirement for filing this application for substitution of Karta
of plaintiff/HUF arose on 7th January, 2007 when Shri Vishwanath
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 1
Khanna, Karta of plaintiff/HUF had died. However, this application has
been filed on 18th May, 2007 as an objection was raised by the counsel
opposite that since the substitution of Karta of the plaintiff/HUF had not
taken within the stipulated period of 90 days, therefore this suit abates.
It is stated in this application that upon the death of Karta of HUF, the
senior member automatically becomes the Karta of HUF and so, there
is no question of any abatement. The question herein is not as to what
happens upon the death of Karta of HUF. Whether substitution of Karta
of HUF upon the death of the Karta is required or not is no longer res
integra as Apex Court in „UOI vs Sree Ram Bohra & Ors.’, AIR 1965
SC 1531 had refused to intervene where the suit stood abated on
account of non-substitution of the Karta of the HUF.
2. It becomes quite evident from the perusal of this application that
the applicant’s counsel was under a misconception about the procedure
to be adopted upon the death of Karta of HUF. What is to be
considered is whether this lapse of applicant’s counsel deserves to be
condoned or not. The question of setting aside abatement has been
considered by the Apex Court in „Ramdas Shivram Sattur vs.
Rameshchandra Popatlal Shah & Ors.’, AIR 2007 SC 3018, while
declaring in no uncertain terms that in such cases too technical or
pedantic approach is not called for. What has been said by the Apex
Court is as under:-
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 2
“The courts have to adopt a justice-oriented
approach dictated by the uppermost consideration
that ordinarily a litigant ought not to be denied an
opportunity of having a lis determined on merits
unless he has, by gross negligence, deliberate
inaction or something akin to misconduct, disentitled
himself from seeking the indulgence of the Court.”
3. As abatement results in denial of hearing on merits, so, the prayer
for setting aside abatement has to be considered liberally. Any other
view would verge on too fine a technicality and will result in injustice
being done. For the mistaken perception of the procedural part on
behalf of the applicant’s counsel, a litigant cannot be made to suffer. For
a period of 90 days from the date of death any party, the suit remains in
a state of suspended animation and then it abates. As per Article 121 of
the Schedule to the Limitation Act, 1963, the limitation to seek setting
aside of abatement, is 60 days. This suit stood abated on or about 7th
April 2007 and the instant application has been filed on 18th May 2007,
i.e., well within sixty days of 7th April 2007 and is thus, within limitation.
4. The bona fide belief of the Applicant, which is based upon
mistaken advice of counsel that substitution of the Karta in the legal
proceedings is not required, is a sufficient reason, in the opinion of this
Court, to set aside the abatement and to permit the Applicant to pursue
the suit as Karta of the HUF as the instant application is accompanied
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 3
by Affidavit of the Applicant as well as the other legal heirs of the
original Karta of the Plaintiff (HUF).
5. This application is accordingly allowed.
C.S. (OS) No. 1626/1996
1. In this suit for possession of ground and mezzanine floor
measuring 2900 sq.ft., in Property No. H-11, Cannaught Circus, New
Delhi and for recovery of arrears of damages amounting to
Rs.1,21,80,000/- and for recovery of future damages/mesne profit @
Rs.4,35,000/- per month, a decree on admissions for possession of the
suit property already stands passed on 18th February, 1998. It is evident
from the order of 16th July, 1999 that the aforesaid decree for
possession stood executed on 4th January, 1999. However, the claim for
damages/mesne profits survived.
2. The undisputed facts are that the suit property was let out by the
Plaintiff to the Defendant on 2nd March 1987, at a rental of Rs.58,000/-
per month, and a registered Lease Deed (Ex.PW-1/1) in this regard was
also executed on 25th October, 1989 and the duration of the lease was
for a period of seven years from 2nd March, 1987 and by afflux of time,
the said lease came to an end on 1st March 1994. Since the Defendant
had failed to vacate the suit property despite notice, therefore, the
Plaintiff had to take recourse to law.
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 4
3. The response of the Defendant to the Plaintiff’s claim was of
Plaintiff agreeing to extend the lease till Defendant’s alternate premises
are ready and the usual preliminary objections were taken in written
statement. The Issues claimed by the parties to this suit are as under:-
(i) Whether the Plaintiff is entitled to
damages/mesne profits from 1.3.1994 till filing
of the suit? If so, at what rate? OPP
(ii) Whether the Plaintiff is entitled to
damages/mesne profits from the date of
institution of the suit till the date of decree. If so
at what rate? OPP
(iii) Whether the Plaintiff is entitled to
damages/mesne profits from the date of
decree till 4.1.1999? If so, at what rate? OPP
(iv) Whether the Plaintiff is entitled to interest on
any of these amounts? If so, at what rate?
OPP
(v) Relief.
6. On behalf of the Plaintiff, its Karta – Shri Rajesh Khanna (PW-1)
has deposed and has relied upon Lease Deeds (Ex.PW-1/8 & Ex.PW-
1/9) of Lord Krishna Bank and MASHREQ Bank to seek the
damages/mesne profits, whereas, Defendant’s deposition is of its
Senior Manager – Prakash Chand (DW-1), Shri P.C. Parashar (DW-2)
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 5
from UCO Bank, H-47, Connaught Place, New Delhi, Shri N. Srinath
(DW-3) from Oriental Bank of Commerce, H-15, Connaught Place, New
Delhi, Shri P.K. Malhotra (DW-4) from Punjab National Bank, H block,
Connaught Place, New Delhi. No other evidence has been led by either
side.
7. After hearing learned counsel for the parties and upon scrutiny of
evidence on record, the findings returned are as under:-
Issue No.: (i)
8. What was the comparable rental after the determination of the
lease of the suit property, i.e., from 1.3.1994 till the filing of the suit in
July, 1996 is required to be determined. To claim the rental at Rs.150/-
sq.ft. per month for the aforesaid period, Plaintiff’s reliance is upon the
Lease Deed of 29th July 1997 (Ex.PW-1/8) of MASHREQ Bank at 28,
Barakhamba Road, New Delhi indicating rental of Rs.200/- per sq.ft. per
month. Another Lease Deed of 9th December, 1996 (Ex.PW-1/9) of Lord
Krishna Bank, showing rental of Rs.150/- per sq.ft. per month, is clearly
misplaced for the reason that these two instances do not pertain to the
period in question. No other evidence has been led by the Plaintiff to
show what was the market rental of the premises comparable to the suit
premises during the period in question. Though, as per Defendant, the
rent for the similar premises in this area had varied from Rs.20/- to
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 6
Rs.50/- per sq.ft. per month, but the Defendant vide communication of
6th June, 1995 (Ex.DW-1/PB), had revised the rent for the suit premises
at the rate of Rs.60/- per sq.ft. per month, w.e.f., 12th May, 1995. In the
face of the evidence on record, it is found to be just and reasonable to
make Defendant’s communication of 6th June 1996 (Ex.DW-1/PB) the
basis for holding that the Plaintiff is entitled to damages/mesne profits@
Rs.60/- per sq.ft. per month for the suit premises with effect from 1st
March 1994 till filing of the suit. This Issue is accordingly answered.
Issue No.: (ii) & (iii).
9. Both these Issues are inter-related and are being taken up
together. For determining the damages/mesne profit for the use and
occupation of the suit premises by the Defendant during the
pendentelite period till the possession of the suit premises was
delivered to the Plaintiff, what is to be seen is that whether the
instances Ex.PW-1/8 and PW-1/9 are comparable to the suit premises.
It has come in the evidence of the Plaintiff that the suit premises was
constructed in the year 1935 with certain renovations in the year 1966,
whereas the MASHREQ Bank is located in an extension of Connaught
Place, where outer circle of Connaught Place and Barakhamba Road
meet, and it is said to be equipped with lifts, air conditioners and other
fire fighting equipments with electric power back up. It stands admitted
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 7
by the Plaintiff that the rates of rent within Connaught Place and at a
location in the extension of Connaught Place, varied from each other
and the suit premises is located behind Plaza Cinema, whereas
MASHREQ Bank is in the outer circle. Plaintiff has also conceded in
evidence that the traffic on the road on which the suit premises is
located is quite heavy.
10. In the light of the aforesaid revelations, I find that the instance –
Ex.PW-1/8 of MASHREQ Bank is not comparable to the suit premises.
As regards the second instance Ex.PW-1/9 of Lord Krishna Bank, it has
come in the evidence of the Plaintiff that the Lord Krishna Bank
premises was extensively renovated in the year 1996 and was having
high speed lifts, flooring of high quality Italian marble, excellent doors,
windows made of high quality and of most model look. It was pointedly
put to the Plaintiff in cross-examination that United Commercial Bank
located on the ground floor at H Block, Connaught Circus was paying
rental at the rate of Rs.35/- per sq.ft. per month and the Plaintiff had
pleaded ignorance about it. It would be worthwhile to refer to the
following deposition of the Plaintiff:-
“Ques.: I put to it you that your claim for mesne
profits is wishful and is far from reality. What
you have to say?
Ans.: My claim for mesne profits @ Rs.150/- per
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 8
sq.ft. is clearly based on the next door
premises taken by Lord Krishna Bank in the
middle circle in the next block which has no
comparison for my premises.”
11. Plaintiff himself and rightly so, finds no comparison of the suit
premises with the premises where the Lord Krishna Bank is located,
therefore, Plaintiff’s reliance placed upon aforesaid instance- Ex.PW-1/9
is rendered futile. No other comparable instance has been relied upon
by the Plaintiff. Since Defendant is bound by its own Communication of
6th June, 1995 (Ex.DW-1/PB), and because no other evidence has been
led by the Plaintiff to prove its entitlement to a rental higher than Rs.60/-
per sq.ft. per month for the period in question, therefore, it is held that
the Plaintiff is entitled to a rental @ Rs.60/- per sq.ft. per month from the
date of institution of the suit till delivery of the possession of the suit
premises, i.e., 4th January, 1999. Both these Issues are accordingly
answered.
Issue No.: (iv)
12. Though interest on the user charges of the suit premises is
claimed at 18% per annum, but the basis to substantiate it, has not
been disclosed. Since the nature of the transaction is strictly not of
commercial nature, and because the Plaintiff had refused to accept the
increased rental at the rate of Rs.60/- per sq.ft. per month, therefore,
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 9
the reasonable rate of interest payable to the Plaintiff on the decreed
amount would be @ 9% per annum. Accordingly, it is held that the
Plaintiff is entitled to recover the interest @ 9% per annum on the
decreed amount, till realization. This Issue stands answered
accordingly.
Issue No.: (v)
13. In the light of the aforesaid findings, this suit is decreed in the
aforesaid terms, i.e., on a rental @ Rs.60/- per sq.ft. per month for the
suit premises is payable to the Plaintiff by the Defendant with effect
from 1st March 1994 till 4th January, 1999, with interest @ 9% per
annum thereon, till realization. Decree sheet be drawn forthwith.
14. This suit and the application are disposed of accordingly.
Sunil Gaur, J.
April 25, 2011
vg/pkb
C.S. (OS) No. 1626/1996 & I.A. No. 6071/2007 Page 10