M/S ITH HYDROLICS PVT LTD vs M/S PRABHDIT ASSOCIATES PVT LTD

$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%         Date of decision: 23.11.2023
+ RC.REV. 479/2019
M/S ITH HYDROLICS PVT LTD ….. Petitioner
Through: Ms. Meghana Katari, Adv. (through VC) with Ms. Krati Somvanshi, Adv., Ms. Ishita Nagpaul, Adv. along with AR of the Petitioner.
versus
M/S PRABHDIT ASSOCIATES PVT LTD ….. Respondent
Through: Mr. Mohit Batra, Adv. with Mr. Prem Kumar Verma, AR of the Respondent.
CORAM:
HON’BLE MS JUSTICE TARA VITASTA GANJU 
[Physical Hearing/Hybrid Hearing (as per request)]

TARA VITASTA GANJU, J.:  (ORAL)
1. The matter is fixed for affixation of use and occupation charges.
2. The order dated 07.11.2023 shows that the learned Counsel for the Petitioner/tenant has contended the following:
“10. Learned Counsel for the Respondent/landlord contends that the demised premises is Shop no.24, property no. 1321, New Guru Nanak Market, Sultan Singh Building, Kashmere Gate, Delhi-06 and admeasures 95.89 sq. ft. approximately [hereinafter referred to as “demised premises”].
10.1 The demised premises is situated in the Gurunanak market which is a wholesale market of motor parts in a commercial area on the ground floor and the Petitioner/tenant is using the demised premises for sale and purchase of the motor parts. It is further contended that demised premises was constructed in the year 1986-89, the same is in good condition.
11. Learned Counsel for the Respondent/landlord has relied on the lease deeds of the vicinity of the demised premises to submit that the rental/damages for this area would be in the range of Rs. 30,000/- to Rs. 40,000/- per month and in the year 2018-2019, it was Rs. 20,000/- per month approximately.
12. Learned Counsel for the Respondent/landlord further seeks to rely upon the agreement dated 15.06.2022, with respect to a shop on the ground floor admeasuring about 9.3 sq. mtrs. situated at Krishna Motor Market and the rental of the shop is approximately Rs. 40,000/- per month with an increase of five per cent after two years, to submit that the demised premises is within the radius of 500 meters of the demised premises.
13. Learned Counsel for the Petitioner/tenant on the other hand does not dispute the area of the demised premises, i.e., 95.89 sq. ft. approximately.”
3. Learned Counsel for the Petitioner/tenant seeks to rely upon a lease deed dated 02.09.2019 wherein the rental for the premises at first floor and second floor of Property bearing municipal no 1281 situated at main road, Kashmere Gate, Delhi-110006 is Rs. 2,72,250/- for the period of 2023-24 for 182.83 sq. mtrs (1967.96 sq.ft) for each floor which totals 365.66 sq mts. (Rs. 744.5 per sq. mtr.) It is contended that based on this deed, the monthly rent for the demised premises will be about Rs. 6600/- (approx).
3.1 Learned Counsel for the Petitioner/tenant further submits that the said premises is on the main road and the demised Premises is on an inner road, hence, the rental for the demised Premises would be less.
4. Learned Counsel for the Respondent/landlord, on the other hand after examining the document filed by the Petitioner/tenant, submits that the lease deed relied upon by the Petitioner/tenant is for a premises situated on the first floor and second floor while and the demised Premises is on the ground floor.
4.1 Further, it is reiterated that the demised premises is in a wholesale market for motor parts and the Petitioner/tenant is using the demised premises for commercial purposes. He accordingly, submits that the rental for the demised Premises will be higher and in the range of Rs. 30,000/- per month.
5. The size of the demised Premises, admeasures 8.91 sq. mtrs. approximately, and it is a shop on the ground floor situated in an automobile parts and accessories wholesale market. Admittedly, the Petitioner/tenant is utilising the demised Premises for commercial purpose.
5.1 The Petitioner/tenant has relied on a lease deed dated 02.09.2019 where, the rent for the property situated on the first and second floor was approximately Rs 744.5 per sq. mtr. The details of this Lease deed filed are below:
(i). Lease deed dated 02.09.2019
Nature
Commercial
Use
Motor sales
Area
365.66 sq mts.
Rent
Rs. 2,72,250/- per month (Rs. 744.5 per sq mt.)
Description/Details
1371, Ground Floor, Kashmere Gate, Delhi-110006
5.2 The lease deed filed by the Respondent/landlord shows a rental of Rs 4921 per sq.mtr. or Rs. 43,855.66/- per month. The Respondents/landlord has annexed lease deeds details of which are reproduced below:
(i). Lease Deed dated 16.02.2018
Nature
Commercial
Use
Canara Bank
Area
2586.38 sq. fts. (240.2 sq mts)
Rent
Rs. 3,70,592/- per month (Rs 1542.8 per sq mtr)
Description/Details
1371, Ground Floor, Kashmere Gate, Delhi-110006

(ii). Lease Deed dated 27.11.2018
Nature
Commercial
Use
Kotak Mahindra Bank
Area
1250 Sq.ft (116.1 sq mts)
Rent
Rs 2,64,500 per month (Rs 2278.2per sq mtr)
Description/Details
Shop No.2694 & 2695 Part of Prop No.790/5 Ward No.I Lothian Road Kashmere Gate, Delhi

(iii). Lease Deed dated 15.06.2022
Nature
Residential
Use
Not mentioned
Area
9.30 sq mtrs. (100.1 sq ft.)
Rent
Rs 40,000 per month (Rs 4301.07 per sq mtr)
Description/Details
Shop no. 7 in Municipal No. 1/2784 Krishna Motor Market, Lothian Road, Kashmere Gate, Delhi.

(iv). Lease Deed dated 04.07.2022
Nature
Commercial
Use
Not mentioned
Area
3.72 sq mtrs (40.04 sq ft.)
Rent
Rs 50,000 per month (Rs 13,440.86 per sq mtr)
Description/Details
Shop Pvt no. 22 part of Prop no.2782/3 and 2762 Lothian Road, Kashmere Gate Delhi-110006

(v). Lease Deed dated 09.12.2022
Nature
Commercial
Use
Not mentioned
Area
15.55 sq mtrs
Rent
Rs 50,000 per month (Rs 3215.43 per sq mtr)
Description/Details
Shop no. 2648 ground floor ward no. 1 Ram Lal Chandhok Marg (opp. Minerva cinema) Kashmere Gate, Delhi-110006

5.3 From an analysis of the Lease deeds, it seems apparent that the market rental in the vicinity of the demised premises, for the commercial purposes [not being banks] would be atleast Rs. 750/- to Rs. 13,500/- per sq. mtr. as per the Lease Deeds filed by the parties. The Lease deed filed by the Petitioner/tenant is however for the first & second floor, the rental of the first floor is always lesser than the rental on the Ground Floor. The Learned Counsel for the Respondent/Landlord has however contended that the rental would be atleast Rs. 30,000/- per month for the demised premises.
6. The record shows that the matter has been adjourned on three occasions, i.e., 30.10.2023, 07.11.2023 and 20.11.2023 at the request of the Petitioner/tenant. On two dates, i.e., 07.11.2023 and 20.11.2023, this Court had adjudicated use and occupation charges in the matter, however, at the request of the learned Counsel for the Petitioner/tenant, the matter was adjourned.
6.1 In response to a query posed to the learned Counsel for the Petitioner/tenant today by this Court, regarding their ability to pay market rent, learned Counsel for the Petitioner/tenant, on instructions from the authorised signatory of the Petitioner, who is present in Court, once again submits that, the Petitioner/tenant is unable to pay use and occupation charges beyond Rs. 5,000 per month.
7. The Supreme Court in a Judgment titled Martin and Harris Private Limited and Another v. Rajendra Mehta and Others reported as (2022) 8 SCC 527, has upheld the law laid down in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported as (2005) 1 SCC 705 that once an Eviction Order has been passed, the tenant is required to pay the use and occupation charges at market rate of like premises till the final disposal of the Petition. It has been held however that, the direction to pay mesne profits or compensation will depend on the facts and circumstances of each case including on location of the property whether it is in a village, city, or metropolitan area as well as its nature whether it is a commercial or residential area and the standard rate of rent serving as guiding factors in the facts of each case.
8. Accordingly, without prejudice to the rights and contentions of the parties, the use and occupation charges shall be paid by the Petitioner/tenant to the Respondent/landlord as below:
(i) The use and occupation charges for the period from 15.09.2019 to 31.03.2020 shall be paid by the Petitioner/tenant at the rate of Rs. 18,500/- per month;
(ii) The use and occupation charges for the period from 01.04.2020 to 31.03.2022 shall be paid by the Petitioner/tenant at the rate of Rs.17,000/- per month;
(iii) The use and occupation charges for the period from 01.04.2022 to 30.11.2023 shall be paid by the Petitioner/tenant at the rate of Rs.18,500/- per month;
(iv) The use and occupation charges from 01.12.2023 onwards, shall be paid by the Petitioner/tenant at the rate of Rs.20,000/- per month;
(v) The payment of arrears of the use and occupation charges from 15.09.2019 to 30.11.2023 shall be paid by the Petitioner/tenant to the Respondent/landlord in four equal instalments, i.e., 15.12.2023, 31.01.2024, 15.03.2024 and 30.04.2024;
(vi) The use and occupation charges from 01.12.2023 onwards, shall be paid by the Petitioner/tenant on or before 7th day of each calendar month;
9. All payments shall be made into the bank account of the Respondent/landlord. The details of the bank account shall be provided by the learned Counsel for the Respondent/landlord to the learned Counsel for the Petitioners/tenants on his email address within two days.
10. It is clarified that the use and occupation charges as affixed hereinabove are tentative and subject to the final outcome of the present petition.
11. Needless to state that in the event that there is any default in the payment of use and occupation charges on behalf of the Petitioner/tenant, interim protection as granted by this Court on 14.08.2019 shall automatically stand dissolved.
12. List on 28.11.2023.
13. Parties shall remain physically present on the next date of hearing.
14. Parties shall act based on the digitally signed copy of the order.

TARA VITASTA GANJU, J
NOVEMBER 23, 2023/SA

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RC.REV. 479/2019 Page 7 of 7