Muthoot Finance Limited v. Kailash Rani & Ors

RAJIV SAHAI ENDLAW, J. MAY 04, 2016 'bs' (corrected & released on 21st June, 2016)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 4th May, 2016. + RFA No.84/2015 & CM No.28479/2015 (for direction) MUTHOOT FINANCE LIMITED ..... Appellant Through: Mr. Ajay Kohli and Mr. S.S. Sobti, Advs. Versus KAILASH RANI & ORS ..... Respondents Through: Mr. Puneet Agrawal, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 31st October, 2014 of the Court of the Additional District Judge (ADJ)-02, North, Rohini Courts, Delhi decreeing CS No.325/2014 filed by the four respondents/plaintiffs namely Smt. Kailash Rani, Smt. Rita Sharma, Smt. Rosy Sharma and Smt. Rekha Sharma for ejectment of the appellant/defendant from Unit No.201, Second Floor, Aggarwal Plaza, Plot No.4, B/N Block, Local Shopping Center, Shalimar Bagh, New Delhi and for recovery of mesne profits / damages for use and occupation @ Rs.1,50,000/- per month with effect from the date of determination of tenancy i.e. 1st March, 2012 till the date of vacation of the premises along with pendente lite interest @ 15% per annum. 2. The appeal came up first before the Court on 10th February, 2015 when, while issuing notice thereof, subject to the deposit by the appellant of a sum of Rs.11 lakhs in this Court, the operation of the judgment and decree was stayed. The said amount is reported to have been deposited. Attempts at amicable settlement failed. On 25th August, 2015, the counsel for the appellant undertook to pay future monthly use and occupation charges @ Rs.1 lakh per month. The counsels were heard on 29th April, 2016 and on completion of hearing, finding elements of amicable settlement to be still existing, the matter was adjourned to today. 3. No compromise has been possible between the parties. 4. The counsel for the appellant has fairly stated that as far as the decree for ejectment is concerned, he is confining the relief only to grant of time to vacate the premises. He further states that for the said additional time the appellant is willing to pay to the respondents the market rent which the respondents are claiming i.e. Rs.1,55,250/- per month. 5. Accordingly, the appeal insofar as the challenge therein to the decree for ejectment is concerned is dismissed. However subject to the appellant paying to the respondents from the month of May, 2016 till the month of vacation of the premises, use and occupation charges at the rate of Rs.1,55,250/- per month in advance for each month by the 10th day of the month, time is given to the appellant till 31st October, 2016 to vacate the premises and the decree for ejectment is made inexecutable till then. If there is any default in payment, the respondents shall be entitled to execute the decree for ejectment also forthwith. 6. With the appellant giving up the challenge to the decree for ejectment, the only ground on which the decree, insofar as for mesne profits is concerned, can be challenged is qua the rate at which the mesne profits have been awarded. It is the contention of the counsel for the appellant that the learned ADJ has awarded mesne profits at the rate claimed by the respondents/plaintiffs without the respondents/plaintiffs leading any evidence whatsoever with respect thereto. Reliance in this regard is placed on (i) A.R. Chadha and Co. Vs. Punjab and Sind Bank MANU/DE/2362/2008 where, finding that the plaintiffs therein had not led any evidence as to the prevalent letting value of the premises and observing that the Division Bench of this Court in National Radio & Electronics Co. Ltd. Vs. Motion Pictures Association 122 (2005) DLT 629 has held that no judicial notice of the rate of mesne profits can be taken, mesne profits were confined to the rate of the last paid rent; (ii) State Bank of India Vs. H.C. Takyar (HUF) MANU/DE/0761/2012 holding that increase of 15% per annum for commercial premises should normally be taken where there is no documentary evidence to prove rate