India Tourism Development Corporation v. Anil Kumar Khanna & Ors

judgment: "…the defendant had filed an affidavit before the Supreme Court in the form of an undertaking. In the said affidavit which was filed by Mr. I. Majumdar on behalf of the defendant, a categorical averment was made that the defendant shall pay mesne profits from 1.2.1980 till the delivery of vacant possession in terms of the judgment and decree dated 5.2.2001" In view of these facts, it is held that ITDC's submission that the doctrine of merger operated so as to absolve it from paying mesne profits for a period prior to 13.02.2006 is misconceived and unmerited and, therefore, rejected.

¶19The next issue is whether the provision in Order XX Rule 12 CPC bars recovery of mesne profits for a period beyond 3 years. ITDC argued that under Order XX Rule 12 (1)(c) CPC, the maximum period for which mesne profits could be granted is (i) till the date of delivery of possession to the Decree Holder (ii) relinquishment of possession by the Judgment Debtor, or

(iii) the expiration of three years from the date of decree, whichever is earlier. It was argued that in the present case decree was passed on

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05.02.2001. Hence, mesne profits were payable by ITDC, at the most, upto

04.02.2004 i.e. 3 years. The learned Single Judge rejected this contention. It was noted that in Chitturi Subbanna (supra) the Supreme Court had to deal with a situation where the plaintiff decree holder approached the Court in execution of the decree for possession after an unexplained delay. It was held in that case that such conduct amounted to gaining from the plaintiff's defaults; he could not consequently obtain advantage due to such delay. In this case, two features stand out: firstly, the ITDC never contended that mesne profits could not be calculated for a period beyond 3 years. Further, if anything, it is seeking to take advantage of its litigative proclivities, because it kept the litigation pot boiling – metaphorically speaking, by preferring an appeal to the Division Bench and thereafter, by special leave to the Supreme Court. These constituted legitimate impediment to the plaintiff securing back possession. Secondly, even in the undertaking filed, the ITDC never said that its obligation to pay arrears for determined mesne profits could not exceed 3 years. Most importantly, it occupied the premises for 27 years after the decree. This last conduct precludes its contentions; acceding to them would amount to permitting an unsuccessful litigant to occupy premises gratis despite use by it, after having suffered a decree of eviction. This contention is accordingly rejected.

¶20The third issue is as to dimensions of the premises. The learned Single Judge, while discussing the Local Commissioner's report, listed the following four circumstances:

(a) Averments of ITDC in its written statement, admitting the area: "3. The allegations in para 5 is wrong and the defendants are

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perfectly in legal possession of the property measuring 297.3 sq.mts. on the southern side of the building which abuts on the Radial Road and the Middle Circle of Connaught Place, New Delhi. The plaintiffs have purposely given wrong facts of the case to mislead this Hon'ble Court......."

(b) The admission of DW-1 Sh. I. Majumdar in his cross-examination dated

08.02.2007 where he admits that in the written statement the defendant has admitted the said area i.e. 297.3 sq. mtrs. to be in its possession.

(c) A preliminary decree for possession was passed for the suit property. The suit property was clearly defined in the plaint as the showroom measuring

297.3 sq. metres. The Local Commissioner noted that this position was not challenged before the Division Bench or in the Special Leave Petition filed by the defendant before the Supreme Court.

(d) The Local Commissioner also noted that the suit premises was in possession of Pakistan International Airways Corporation in the year 1958 and it was let out as a whole on a monthly rent of ` 345/- without specifying any rate separately for the covered area or carpet area or super area. At no stage prior to vacation of the suit property, i.e. in 2007 the defendant had raised the issue or dispute about the covered area or carpet area or super area. The Local Commissioner noted that the area of the suit property was hence always dealt as a single unit i.e. as a whole and not on the basis of carpet area or super area or covered area.

¶21The Architect appointed by the Local Commissioner stated that the covered area of the premises was 292.71 sq. metres i.e. a variation of only

4.59 sq. metres. This variation was ignored as the property was inspected after its extensive renovation. The Commissioner noted that neither of the

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parties had filed any objections before him to the report of the Architect despite opportunities being given.

¶22As against these undeniable facts and circumstances, ITDC relied on affidavit evidence of DW-1 I. Majumdar, DW-2 Ravinder Kumar and DW-3 Sanjiv Poswal. DW-1 stated that ITDC occupied 175.62 sq. meters and relied on a communication dated 01.03.1966 by which tenancy was transferred (Ex.DW1/1), on a lay out plan (Ex.DW1/2) and on a valuation report (Ex.DW1/3). DW1/1 is a letter written by Deputy Custodian of Enemy property dated 01.03.1966. It does not specify the area of the premises. DW1/2 is a site plan produced by ITDC, and a photocopy of a site plan, which contained some jotting on the side of the area without any explanation. The jotting on the first page of this document indicated an area of 29.26 sq. meters. The second page indicates 146.41 sq. meters. The total would be 175.67 sq. meters. The basis of the calculation was unknown. There was no explanation who prepared this document and under whose instructions it was prepared. Ex.DW1/2, concluded the learned Single Judge, had no evidentiary value and could not be accepted. As regards Ex DW1/3, the undated valuation report Ex.DW1/3, that too was a photocopy; the original was by Pankaj Goel and Associates. It notes the area as 175.67 sq. meters of the suit premises. Ex DW1/3 never indicated the basis of having accepted the covered area as 175.6 sq. meters. Likewise, DW-3 deposed that the plaintiffs materially altered the premises and added 117.91 sq. meters. This calculation was extracted from the report of the Architect Arvind & Associates. However, the basis for arriving at this conclusion was not known or explained.

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¶23Having regard to the overall circumstances, we do not see how ITDC can urge that the decision of the learned Single Judge is unsound. The trail of admissions and omissions at every stage of the suit, prior to the determination of mesne profits, foreclose any debate as to the dimensions of the suit property. The written statement and the deposition of Sh. I. Majumdar in fact estop ITDC – on the basis of the pleadings, from contending that the premises measured anything less than 297.3 square metres. That admission is not merely part of the record; it is also the basis of the decree of eviction. Furthermore, in a later stage, the same litigant cannot be allowed to set up an entirely different case, in order to escape or lighten its liability. Even the material brought on the record – and discussed previously can hardly be credible or inspire confidence in the Court to hold that the dimensions were 175.6 square metres. This issue is held against ITDC.

¶24The last issue is the rate of mesne profits decreed. This Court's preliminary decree itself found that the initial rent had been agreed at ` 30,000/- per month for the month's period 01.01.1980 to 31.01.1980. This rate went unchallenged by ITDC. The ITDC's undertaking filed before the Supreme Court agreed to pay the plaintiff at this rate till determination of the mesne profits by the Local Commissioner. The Commissioner adopted this figure, i.e. @ ` 9.37 per sq. feet as the base rate for 1980. He relied on leases produced before the Court in various judicial pronouncements and reported that the base rate @ Rs.9.37 per sq.ft. was to be subjected to enhancement by 15% every year. For this purpose, he relied on judgments of this Court i.e. Sneh Vasish v. State Bank of India, 189(2012) DLT 153; Chander Kirti Rani

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Tandon v. M/s.VXL Lodging N. Boarding Services Pvt. Ltd. 197(2013) DLT 266 and M.C. Agarwal & Ors v. Sahara India Ors 183(2011) DLT. These showed the general custom or practice by which rents were increased, year on year, in respect of commercial properties. This Court commends that view and finds no reason to depart from it. Conversely, it is noteworthy that the ITDC did not produce any evidence to refute such evidence or materials. In the circumstances, the determination of mesne profits in the impugned judgment cannot be found fault with.

¶25In view of the above findings, this Court is of opinion that the appeal is unmerited. It is accordingly dismissed with costs. Counsel's fee quantified at ` 1,50,000/- shall be paid to the plaintiff within four weeks.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) APRIL 22, 2016

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 25.01.2016 Pronounced on: 22.04.2016 + RFA (OS) 124/2015, C.M. APPL.27851/2015 INDIA TOURISM DEVELOPMENT CORPORATION …………Appellant Through: Sh. Y.P. Narula, Sr. Advocate with Sh. Sanjay Gupta and Sh. Ravi Tyagi, Advocates. Versus ANIL KUMAR KHANNA AND ORS. ……..Respondents Through: Ms. Kaadambari Singh Puri with Ms. Jyoti Ojha, Advocate, for Respondent No.1. Sh. Avishkar Singhvi, Advocate, for Respondent No.3. Sh. Ashish Kumar Bhagat, proxy counsel, for Sh. Neeraj Malhotra, Advocate, for Respondent No.2A. Ms. Rachna Agrawal, Advocate, for Respondent No. 2B. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA MR. JUSTICE S. RAVINDRA BHAT % 1. The unsuccessful defendant (hereafter referred to as "the ITDC") appeals the decision of a learned Single Judge, who overruled its objections to the calculation of mesne profits for the period between 01.01.1980 and 28.02.2007 in respect of a property, i.e. described as Jeevan Group Mansion, Page 2 L Block, Radial Road, Connaught Circus, New Delhi (hereafter referred to as "the suit property"). 2. The plaintiff sought to recover possession of the suit property by filing Suit No.119/1980. The property, in terms of the Suit, was a 297.30 square metre premise used as a showroom. The property was taken-over by the Custodian of Enemy Properties (hereafter "the Custodian") at the onset of the hostilities between India and Pakistan proceeding into the Indo-Pakistan conflict in 1965. The Custodian released the suit property to the plaintiffs on 21.02.1977. In between, the Custodian had rented out the property to the Department of Tourism, Govt. of India; the properties were subsequently made over to the India Tourism Development Corporation (ITDC). The plaintiff did not accept ITDC as its tenant; it did not also accept any rent; he, therefore, filed a suit claiming possession and mesne profits. On 30.03.1981, issues were framed by the Court which tried the case. The issues framed were as follows: "1. Whether the plaintiffs are the owners of the property in suit? 2. Whether the Custodian of Enemy Property created a lease in favor of the defendant? If so, could he not do so? 3. Whether the letter dated 21st February, 1977, Ex.P-1 does not amount to release of the property in favor of the plaintiffs? If so, is the possession of Defendant illegal?" 4. If this Court finds that the property stands released by virtue of Exhibit P-1 are the Plaintiffs bound to accept the Defendant as their tenant? 5. Whether the Plaintiffs are entitled to mesne profits, if any, and at what rate? Page 3 6. Whether the suit is barred under the provisions of Delhi Rent Control Act? 7. Relief." 3. On the basis of the evidence led, a learned Single Judge, by his judgment and order dated 05.02.2001 decreed the suit in full, directing delivery of vacant possession to the plaintiff and also directing that the plaintiff was entitled to a preliminary decree for mesne profits of `30,000/-, for the period 01.01.1980 to 31.01.1980. The learned Single Judge further directed an enquiry into the amounts that the plaintiff was entitled to by way of mesne profits. The ITDC carried the decree in appeal [RFA(OS) 18/2001]. This appeal was dismissed by the Division Bench on 20.10.2005. The matter was sought to be further appealed by way of a Special Leave Petition (SLP No.1569/2006) to the Supreme Court. By the order dated 13.02.2006, the Supreme Court held that the Petition was unmerited and accordingly rejected it. It, however, acceded to ITDC's request that it be permitted to vacate the premises on or before 28.02.2007 subject to its furnishing an undertaking. The Supreme Court's order dated 13.02.2006, disposing of the SLP is as follows: "O R D E R Heard Mr. G.E. Vahanvati, learned Solicitor General for the Petitioner and learned senior counsel for the Respondents. We see no substance in this special leave petition which is liable to be dismissed. However