INTERCRAFT LTD Vs. CAPITAL BOOT HOUSE

JUDGEMENT

(1.) A suit for declaration and permanent injunction was filed by M/s Inter Craft Limited against M/s Capital Boot House and three others viz. S.Indrave Singh Mann, S.Shivender Pal Singh Mann and S.Brijender Pal Singh Mann, seeking a declaration that it is a lawful tenant of the defendants in respect of shop No. B-24 Connaught Place, New Delhi and is entitled to remain in its possession. A permanent injunction restraining the defendants from interfering in possession of the plaintiff qua the aforesaid shop was also sought. The defendants in the suit filed Written Statement contesting the suit and also filed a Counter Claim against the plaintiff. It was alleged in the Written Statement that shop in question was taken on rent by M/s Capital Boot House and other defendants were its partners. It was alleged that plaintiff had obtained forcible unauthorized occupation of the suit premises on 3rd October, 1994. The suit became infructuous since the suit premises was vacated by the plaintiff on 31 st March, 2000 pursuant to order dated 6th September, 1999 passed by a Division Bench of this Court. The defendants, in their Counter Claim have sought (a) a sum of Rs.10 lac from the plaintiff for the injury to their peace of mind, health and running of their business on account of the plaintiff having taken forcible possession of shop, in question, from them on 3rd October, 1994, (b) restoration of articles mentioned in Annexure ,,A to the Counter Claim alleged to have been stolen from shop in question on that day and (c) Rs.5,40,984/- towards damages for use and occupation from the period 3rd October, 1994 to 7th December, 1994. They have also sought damages for use and occupation at the same rate from the date of filing of the counter claim till the date they were able to enter into the suit property along with interest on that amount @ 18% p.a.

(2.) THE following issues were framed in the Counter Claim on 18th April, 2001

(3.) EXH. DW-1/1 is the certified copy of the lease deed dated 29th July, 1997 executed by Gopal Das Estates and Housing Private Limited in favour of Bank of Nova Scotia with respect to the ground floor of a multistory building known as Dr. Gopal Dass Bhawan at 28, Barakhambha Road, New Delhi. A perusal of document would show that vide this lease deed the rent of the premises measuring 5000 sq. feet of super area was increased to Rs.7,68,750/- p.m. Clause 3 of the lease deed shows that initially the premises was taken on rent vide lease deed 20 th May, 1994 which provided for increase in rent by 25% after three years from the date of letting out. The rent per sq. foot, in terms of these lease deed comes to Rs.153.75 p.m. w.e.f. 29 th July, 1997. Since this rent was worked out after an increase of 25%, it is obvious that the rent agreed at the time of creation of tenancy vide lease deed 20th May, 1994 would come to about Rs.123/- per sq. foot p.m. EXH. DW-1/2 is another lease deed dated 29th July, 1997 executed by Gopal Das Estates and Housing Private Limited in favour of Mashreq Bank in respect of commercial premises measuring about 8000 sq. feet of super area on the upper ground floor of Gopal Dass Bhawan at 28, Barakhambha Road, New Delhi. The aforesaid premises was let out at the monthly rent of Rs.200/- per sq. foot p.m. for a period of 03 years w.e.f. 1st June, 1996. EXH. DW-1/3 is the lease deed dated 5th June, 1997 executed in respect of ground and mezzanine floor of property No. D-10 Connaught Circus, New Delhi and pertained to an area measuring 1912 sq. feet on the ground floor and 1844 sq. feet on the mezzanine floor besides space measuring about 200 sq. feet on the terrace. The agreed rent was more than Rs.200/- per sq. foot p.m. EXH. DW-1/4 is the lease deed dated 12th August, 1999 executed in respect of some premises at the rent of about Rs.200/- per sq. foot p.m. Relying upon the aforesaid lease deeds, it was contended by the learned Counsel for the defendants that the damages for use and occupation should be awarded to the plaintiff at least @ Rs.120/- per sq. foot p.m. w.e.f. 13th October, 1994 to 28th July, 1997 and @ Rs.153.75 per sq. foot p.m. w.e.f. 29th July, 1997. I, however, find that for the period from 3rd October, 1994 to 7th December 1994 the defendants have claimed damages amounting to Rs.5,40,984/-, comes to about Rs.90 per sq. foot p.m. since the area in shop in question is said to be 2740 sq. feet. I, also notice that in the Counter Claim, the defendants have claimed pendent lite and future damages (mesne profits) at the same rate at which they have claimed damages for use and occupation from the period from 3rd October, 1994 to 7th December, 1994. Irrespective of the rate of rent prevailing at the relevant time the defendants cannot be awarded damages for use and occupation at a rate higher than at which they have claimed in their counter claim.