SH RAJIV PURI vs SH AMIT SHARMA AND ORS

2023-10-11 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 11.10.2023

+ RC.REV. 123/2022 & CM APPL. 46165/2022
SHRI RAJIV PURI ….. PETITIONER

VERSUS

SHRI AMIT SHARMA AND ORS. ….. RESPONDENTS

Advocates who appeared in this case:
For the Petitioner : Mr. Akshay Makhija, Sr. Adv. with Mr. Amit Sanduja, Mr. Sheetesh Khanna, Ms. Sakshi Singh and Mr. Tushar Batra, Advs.

For the Respondent : Mr. Ajay Digpaul, Ms. Swati Kwatra and Mr. Kamal Digpaul, Advs.
CORAM:
HON’BLE MS JUSTICE TARA VITASTA GANJU
[Physical Hearing/Hybrid Hearing (as per request)]
TARA VITASTA GANJU, J.:
CM Appl.46165/2022[Application seeking affixation of user and occupation charges]
1. This is an application filed by the Respondent/landlord seeking directions to the Petitioner/tenant to pay use and occupation charges of the premises .i.e. shop and half portion of the Sahan situated on the ground floor forming part of property bearing no. G-18-A, South Extension Market, Part-I, New Delhi, admeasuring about 1000 Sq. ft. [hereinafter referred to as the demised premises] from the date of Eviction order dated 16.03.2022 [hereinafter referred to as Eviction Order] till the Revision Petition is finally decided by this Court.
1.1 Learned Counsel appearing on behalf of the Respondent/landlord submits that the Petitioner/tenant is in occupation of the demised premises for the last more than 50 years. He further submits that the Petitioner/tenant has not tendered any rent to the Respondent/landlord since 2012, hence, Respondent/landlord has been constrained to file the present application.
2. The record shows that, the execution of the Eviction Order was stayed in pursuance to orders dated 13.09.2022 and 13.10.2022 passed by this Court.
3. The Supreme Court in a recent Judgment titled Martin and Harris Private Limited and Another v. Rajendra Mehta and Others1, has upheld the law laid down in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd.2 case 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.
3.1 The relevant extract reads as follows:
16. Now, reverting on the issue of determination of the amount of mesne profits @ Rs.2,50,000 per month is concerned, the guidance may be taken from the judgment of Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd., in which this Court held that once a decree for possession has been passed and the execution is delayed depriving the decree-holder to reap the fruits, it is necessary for the appellate court to pass appropriate orders fixing reasonable mesne profits which may be equivalent to the market rent required to be paid by a person who is holding over the property.

17. In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd , this Court held that the appellate court does have jurisdiction to put reasonable terms and conditions as would in its opinion be reasonable to compensate the decree-holder for loss occasioned by delay in execution of the decree while granting the stay. The Court relying upon the provisions of the Delhi Rent Control Act, observed that on passing the decree for eviction by a competent court, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises in present and earn the profit if the tenant would have vacated the premises

4. Learned Counsel for the Respondent/landlord, with this Application has placed on record two registered lease deeds of the like premises being shop bearing No. G -15 situated at Ground Floor South Extension part-I (Market) New Delhi-110049 admeasuring about 1400 Sq ft covered area wherein the rent is fixed as Rs. 12,00,000/- per month [hereinafter referred to as “Shop No. G- 15”] and another shop bearing No. G-26, Ground Floor, South Extension Part-I (Market) New Delhi-I10049 admeasuring about 100 Sq Ft. (approx) covered area wherein the rent is fixed @ Rs. 1,23,625/-per month [hereinafter referred to as “Shop No. G- 15”].
4.1 Learned Counsel for the Respondent/landlord submits that the demised premises were let out to the Petitioner/tenant back in the year 1964 with the rent being fixed at Rs. 1040/-. He further submits that the Petitioner/tenant has been enjoying the fruits from the property for the last more than 50 years at a very meagre rent. He further submits that the Petitioner/tenant has not even being paying the said rental amount since 2012, when the Eviction petition was filed.
4.2 Learned Counsel for the Respondent/landlord submits that similarly situated shops/properties in the vicinity of the demised premises are being let out at a monthly rent which ranges between Rs. 10,00,000/- to Rs.12,00,000/-
4.3 Learned Counsel for the Respondent/landlord further avers that the Petitioner/tenant is using the demised premises for the purposes of selling Premium Fusion wear for women in the name of the brand named “W” which is being stated to have a pan-India presence amongst the leading clothing brands. He further submits that the demised Premises are located in a commercial complex with the presence of all leading National and International brands of Clothing, Jewellery, Accessories, etc. and is having a very high foot fall.
5. Learned Counsel for the Petitioner/tenant relies on a lease deed dated 27.06.2022 for Shop No. G-20, Basement and Ground floor, South Extension Part-l, New Delhi- 110049 admeasuring 200 sq fts in front lane of Basement and 400 sq fts of ground floor wherein the rent is fixed at Rs.1,37,800/- per month [hereinafter referred to as “Shop No. G- 10”]. He further submits that this shop is located opposite to the demised premises in question and is thus the most appropriate for deriving at market rent for similarly situated properties.
5.1 Learned Counsel further submits that the demised premises is admittedly an old construction and is in a very dilapidated condition. He further submits that the lease deeds with respect to Shop No. 15 and Shop No. 26 are not comparable to the demised premises as the said shops have newly been constructed and are in excellent condition. He further avers that the use and occupation charges for the demised premises would not be over the range of Rs. 80,000/- to Rs. 1,00,000/- per month.
5.2 Learned Counsel for the Petitioner/tenant draws the attention of the Court to the Photographs and site plan annexed with the List of documents filed by the Petitioner/tenant on 13.08.2023 to submit that the demised premises are in a very bad condition. He further submits that the demised premises open on the narrower side of the street which is only about 7.6 ft. wide and the lease deeds of the Shops being relied upon by the Respondent/landlord are opening on a much wider road and are much more commercially viable when being compared to the demised premises.
6. In the circumstances of the case, the lease deeds being relied upon by the parties pertain to the same commercial complex situated at South Extension Market in affluent South Delhi. Lease deeds filed by Respondent/landlord for Shop No. G-26 is placed a little farther to the demised premises and is thus not appropriate for comparison with the demised premises. Whereas, Shop No. G-15 is located 3 shops away from the demised premises and Shop No. G-20 is located opposite to the demised premises. Further, the fact that the location of the demised premises is in a prime commercial area and that the Petitioner/tenant is using the demised premises for a commercial purposes in as much as he is involved in a renowned business of selling Fusion Wear for women, is also required to be kept in mind. However, since admittedly, the demised premises is in an old building, the rate is to be discounted as such.
6.1 The Respondent/landlord has placed on record a site plan of the premises to show the area. Admittedly of the covered area of 1000 sq. ft., some portion is covered by a temporary shed and a part of it has a shaft and a narrow passage.
6.2 It is contended by the Petitioner/tenant that the shop under use measures approximately 500 sq. ft. and a part of the shop is a tin shed and a store, both of which are in a dilapidated condition. However, the photographs show that the shops and building are not dilapidated but old. Further, it is to be kept in mind that the entire 1000 sq ft is under the use and occupation of the tenant.
6.3 The sale deeds relied upon by the Respondent/landlord shows average market rent of the ground floor of Rs.1,100/- per sq. ft. The photographs of the shop has been annexed with the Petition confirm that a showroom being run by the Petitioner/tenant.
7. Therefore, without prejudice to the rights and contentions of the parties, the Petitioner/tenant shall pay to the Respondent/landlord use and occupation charges in the following manner during the pendency of the Revision Petition:
(i) The arrears of rental payment upto 16.09.2022, shall be paid at the rate of Rs.1040/- per month, to the Respondent by 30.11.2023.
(ii) Use and occupation charges for the period from 17.09.2022 to 30.09.2023 shall be paid by the Petitioner/tenant latest at the rate of Rs.4,50,000/- shall be paid in two equal instalments i.e., on 15.12.2023 and 15.02.2024.
(iii) Use and occupation charges from October, 2023 onwards shall be paid to the Respondent/landlord at the rate of Rs.5,50,000/- per month, on or before 7th day of each calendar month during the pendency of the Revision Petition. The use and occupation charges for October, 2023 shall be paid by the Petitioner/tenant latest by 20.10.2023.
8. 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 Petitioner/tenant on his email address within three days.
9. It is clarified that the use and occupation charges as affixed hereinabove are tentative and subject to the final outcome of the present petition.
10. All rights and contentions of both the parties in the Petition are kept open.
11. Accordingly, CM APPL. 46165/2022, shall stand closed.
RC.REV. 123/2022 & CM APPL. 25482/2022 [Application seeking interim directions]
12. Subject to the deposit of the arrears of rent and the use and occupation charges as aforesaid, the Interim Order(s) dated 13.09.2022 and 13.10.2022, shall continue till the pendency of the Petition.
12.1 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 shall automatically stand dissolved.
13. Parties will act based on the digitally signed copy of the order.
14. List the matter for hearing and final disposal on 24.04.2024.

(TARA VITASTA GANJU)
JUDGE

OCTOBER 11, 2023 /r

1 (2022)8SCC527
2 (2005) 1 SCC 705
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RC.REV. 123/2022 Page 1 of 7