HPC Vs (1) - Kanta Manocha Appeal

R.F.
A 842/03
ORDERS
15.12.03
Present: Mr. Nikhilesh Krishnan for the appellant.

Mr. M.A. Khan for the respondent.
R.F.A 842/03
Security bond not furnished by the respondent. Time is sought for by
ld. Counsel for the respondent.
To come up on 11th February, 2004 at 2.30 P.M.
December 15, 2003

V.B. Gupta.
Registrar General
11.02.2004

R.F.A NO. 842/03

Security bond has still not been furnished by the respondent. To come
up on 12th April,2004 at 2.30 P.M.
February11,2004
V.B. Gupta.
Registrar General
IN THE HIGH COURT OF DELHI AT NEW DELHI
R. F. A No. ___________/2003
In the matter of :-
Hindustan Paper Corporation …….Appellant
Versus
Smt. Kanta Manocha ……..Respondent
INDEX
Sl. No. Particulars Court Fees Pages
1. Urgent Application Rs.3.00 A

2. Opening Sheet B
3. Memo Of Parties Rs.8.00 C-I
4. Appeal under Section 96 read with 1-14
Order 41 of CPC alongwith affidavit
5. ANNEXURE A- Copy of plaint in Suit 15-23
No. 179/2001
6. ANNEXURE B– Copy of written 24-30
statement in Suit No. 179/2001
7. ANNEXURE C- Copy of reply affidavit 31-33
filed by appellant in Suit No.
179/2001
8. ANNEXURE D- Certified copy of 34-41
replication of respondent in Suit No.
179/2001
9. ANNEXURE E- Certified copy of 42-46
application of respondent under
Order 12 Rule 6 CPC in Suit No.
179/2001
10. ANNEXURE F- Copy of written 47-52
objection of appellant to the
application of respondent under
Order 12 Rule 6 CPC in Suit No.
179/2001
11. ANNEXURE G (Colly)- Certified copy 53-63
of judgement & Decree dated
10.9.2001 passed by Ld. Trial Judge
on the application of respondent
under Order 12 Rule 6 CPC in Suit
No. 179/2001
12. ANNEXURE H- Copy of the evidence 64-65
by way of affidavit of Mr. J.M.d.Goel,
witness of appellant in Suit No.
179/2001
13. ANNEXURE I- Certified copy of the 66-69
examination of chief of Mr.
J.M.d.Goel, witness of appellant in
Suit No. 179/2001
14. ANNEXURE J- Certified copy of the 70-74
evidence by way of affidavit of power
of attorney of respondent in Suit No.
179/2001
15. ANNEXURE K- Certified copy of the 75-76
examination of chief of power of
attorney of respondent in Suit No.
179/2001
16. ANNEXURE L- Certified copy of MOU 77-79
dated 19.7.2002 filed by respondent
alongwith typed copy
17. ANNEXURE M- Certified copy of 80-83
special power of attorney of
respondent in favour of Mr. Gautam
Budhiraja alongwith typed copy
18. ANNEXURE N- Certified copy of the 84-95
Impugned Judgment dated
20.9.2003 passed by Ld. Trial Judge
in Suit No. 179/2001
19. Application under Order 41 Rule 5 Rs. 3.00 96-103
read with Section 151 CPC for stay of
the execution proceedings alongwith
affidavit.
20. Application under Section 151 of Civil Rs.3.00 104-106
Procedure Code, 1908 for exemption
from filing certified copies of
Annexure Nos. A, B, C, F & H
alongwith affidavit.
21. Vakalatnama Rs. 2.75 107
New Delhi Appellant
Date: 11.11.2003
Through
Ratan Kumar Singh,

Vandana Singh,
Nikhilesh Krishnan,
Advocates,
E-342 B, G. K. -1.
New Delhi 110048.
R.F.A No._________/2003
In the matter of :-
Versus
Urgent application
To.
The Registrar,
High Court of Delhi, New Delhi.
Dear Sir,
The accompanying appeal under Section 96 read with Order 41 of CPC
be listed urgently on 12.11.2003 as urgent reliefs are prayed for.
Thanking You.
Sincerely Yours.
Ratan Kumar Singh,

Vandana Singh,
Nikhilesh Krishnan,
Advocates.
E-342 B, Greater Kailash-I
New Delhi – 110 048
R.F.A No._________/2003
MEMO OF PARTIES
IN THE MATTER OF:-
Hindustan Paper Corporation

having its registered office at:-
4th Floor, South Tower, Scope Minar,
Lakshmi Nagar, District Centre, Delhi-92.
…….Appellant
Versus
Smt. Kanta Manocha

Through her special power of attorney
Sh. Gautam Budhiraja
R/o D-226, Defence Colony,
New Delhi-110024 …..Respondent
New Delhi Appellant
Date: 10.11.2003
Through
Ratan Kumar Singh,

Vandana Singh,
Nikhilesh Krishnan,
Advocates,
E-342 B, G. K. -1.
New Delhi 110048.
R. F. A No. _______/2003
In the matter of :-
Versus
Smt. Kanta Manocha

Through her special power of attorney
Sh. Gautam Budhiraja ……..Respondent
APPEAL UNDER SECTION 96 READ WITH ORDER 41 OF CIVIL

PROCEDURE CODE, 1908
RESPECTFULLY SHOWETH:
1. That the appellant is a Public Sector Enterprise and is duly incorporated under
the Companies Act. The appellant manufactures various kinds of paper and sells and
distributes its products, i.e. paper, through its stockists and by direct sales to its
customers, e.g. private, Govt. and semi-Govt. institutions and is having its offices and
sales depots in various part of countries including Delhi.
2. That respondent is the owner/landlady of the property bearing no. E-525,
Greater Kailash-II, New Delhi, two and half storey property built in approximately 500
sq. yds, having total seven rooms (hereinafter referred to as the said property).
3. That appellant had taken on lease the said property for the
purpose of using the same as a transit house for stay of its outstation
officers visiting Delhi for official purpose (not for commercial use). The
said property was taken on lease by the claimant vide a duly registered
lease deed dated 18.1.1982 (hereinafter referred to as the said lease
deed) for an initial period of 3 years on a monthly rent of Rs. 6,500/- .
It is important to mention that at the time of execution of the said
lease deed said property was an old construction and was in dilapidated
and damaged condition. Factum of said property being in damaged
condition was duly brought to the notice of respondent at the time of
execution of the lease deed.
4. That after the expiry of the initial period of three years as
envisaged by said lease deed, both the parties with consent
renewed/extended the said lease was for further period of two years i.e
up to 17.1.1987 subject to increase of rent by 10%, i.e Rs. 7,150/- p.m.
It is relevant to note that as per the said lease agreement,
appellant also used to pay Rs. 2,200/- to the respondent as charges for
fittings and fixtures and in view of the same the accumulated rent paid
by appellant to the respondent was Rs. 9350/- (Rs. 7,150 + Rs.
2,200/-).
5. That after the expiry of extended period of two years on
17.1.1987, respondent informed the appellant that appellant could
continue to remain in the possession of the said property as the lawful
tenant. It is important to note that all along the period after the expiry
of extended period, appellant continued to pay the agreed rent to the
respondent which was being duly accepted by respondent without any
objection or demur.
6. That however without any rhymes and reasons, respondent
illegally sought to terminate the legal tenancy of appellant vide her
alleged legal notice dated 20.2.1990. Thereafter respondent filed one
false and illegal civil suit before this Hon’ble Court being Suit No.
414/1991 tilted as Kanta Manocha Vs. Hindustan Paper Corporation

for recovery of possession of suit property, which was dismissed by this
Hon’ble Court vide its order dated 13.7.1998.
7. That after the dismissal of its said suit, respondent sought to
terminate the tenancy of appellant vide her alleged legal notice dated
1.3.1999. Since the said legal notice was false, frivolous and illegal,
appellant duly replied to the said legal notice of respondent vide its
reply dated 28.8.1999.
8. That thereafter respondent filed a civil suit before the District
Judge, Tis Hazari Court on 15.11.1999, lastly numbered as Suit No.
179/2001, for recovery and possession against the appellant.
Respondent also prayed for holding an inquiry under Order 20 Rule 12
of CPC and awarding damages/charges for use and occupation of said
property by appellant after the expiry of the notice period i.e 18.4.1999
till the handing over of possession. Copy of the plaint is annexed
herewith as “ANNEXURE-A”.
Appellant filed its written statement in the said suit and therein
categorically denied all allegations made by respondent in its said suit
and inter alia raised pleas of waiver, estoppel, resjudicata and
limitation. In its written statement and subsequent affidavit, appellant
brought to the notice of the Ld. Trial Judge, Tis Hazari that in view of
the acceptance and encashment of cheque given for rent by respondent,
respondent waived her alleged legal notice and alleged legal notice dated
1.3.1999 was no more in existence and consequently said suit based on
such illegal notice was not maintainable as barred by principle of
waiver. Copies of the written statement of appellant and affidavit dated
15.11.2000 of appellant are annexed herewith as “ANNEXURE-B &
ANNEXURE-C” respectively. Respondent also filed her replication and
certified copy of which is annexed herewith as “ANNEXURE- D”.

9. That in the meantime respondent filed application under Order
12 Rule 6 CPC for judgement on admission. Appellant also filed its reply
to the said application of respondent. Copies of application of
respondent under Order 12 Rule 6 CPC and written objection thereto of
appellant are filed herewith as “ANNEXURE-E & ANNEXURE-F”
respectively.
10. That after hearing both the parties on the application of
respondent under Order 12 Rule 6 CPC, the Ld. Trial Judge vide
judgement dated 10.9.2001 allowed the said application of respondent
and passed a decree for possession in favour of the respondent and
ordered for separate enquiry under Order 20 Rule 12 of CPC with
respect to the claim of respondent regarding damages/mesne profits.
Certified copy of judgement & Decree both dated 10.9.2001 is filed
herewith as “ANNEXURE-G (Colly)”.
11. That on the issue of damages/mesne profit, both the parties led
their evidence before the Ld. Trial Judge. It is relevant to mention that
respondent did not appear in person in the witness box to substantiate
and corroborate her case, rather her special power of attorney Mr.
Gautam Budhiraja, who was not duly authorised by respondent to give
evidence, deposed before the Ld. Trial Judge by filing his own evidence
by way of affidavit. On behalf of appellant, Mr. J.M.D.Goel, Executive
(Commercial) of appellant company, who used to take care of the said
premises also filed his evidence by way of affidavit
12. That both the parties cross-examined the witnesses of each other.
Copy of evidence by way of affidavit of Mr. J.M.d.Goel, witness of the
appellant is being filed herewith as “ANNEXURE-H” and certified copy
of his deposition in cross examination is being filed as “ANNEXURE-I”.
Certified copies of evidence by way of affidavit of power of attorney
of the respondent and certified copy of his deposition in cross

examination are being filed as “ANNEXURE-J” & “ANNEXURE K”
respectively.
It is relevant to mention that during the course of cross –
examination of witness of respondent, counsel for the appellant
objected to the production of one alleged MOU dated 19.7.2002 sought
to be produced and exhibited as EX. PW 1/9 by witness of respondent
alongwith his evidence by way of affidavit in support of the case of the
respondent. Certified copy of said MOU and certified copy of special
power of attorney dated 31.08.1999 of respondent in favour of Mr.
Gautam Budhiraja are being annexed herewith as “ANNEXURE-L” &
“ANNEXURE-M” respectively.
13. That parties argued their respective case at length before the Ld.
Trial Judge.
14. That the Ld. Trial Judge passed judgment on 20.9.2003 and
decreed damages/mesne profits @ Rs. 50,000/- per month in favour of
the respondent and against the appellant from the date 18.4.1999 till
the date of recovery of possession i.e 31.3.2002. Certified copy of the
said Judgment dated 20.9.2003 (hereinafter referred to as “impugned
judgment”) is annexed herewith as “ANNEXURE-N” without any factual
and legal basis.
Feeling aggrieved by the impugned judgement dated 20.9.2003,
appellant is filing the present appeal on following amongst other
grounds:-
G R O U N D S
i. BECAUSE there is an error apparent on the face of the record of the case,
therefore, impugned judgment is liable to be set aside.

ii. BECAUSE impugned judgment is based on erroneous interpretation of facts
and laws applicable in the case.
iii. BECAUSE impugned judgment is based on conjecture and surmises.
iv. BECAUSE Ld. Trial Judge failed to appreciate that rate of rent of a premises
depends upon the physical condition and its age etc irrespective of the locality as
physical condition age etc of the property prevails over the locality of the
property.
v. BECAUSE Ld. Trial Judge did not appreciate that abovesaid Mr. J.M.D.Goel,
witness of the appellant proved in his examination in chief and also in his cross
examination that said property was very old and in a damaged condition even at
the time of execution of the lease deed in 1982.
vi. BECAUSE Ld. Trial Judge failed to appreciate that despite of positive case of
the appellant that said property was very old and in a damaged condition even at
the time of execution of the lease deed in 1982 and condition of the property
obviously deteriorated thereafter, respondent did not even did not put any
suggestion to that effect meaning thereby said positive case of the appellant
remained un-rebutted.
vii. BECAUSE Ld. Trial Judge did not even gave any finding to the positive
unrebutted case of the appellant that said property very was old and in a
damaged condition even at the time of execution of the lease deed in 1982 and
condition of the property obviously deteriorated thereafter.
viii. BECAUSE Ld. Trial Judge by not giving any finding fell in error that rate of
rent of any very old and damaged property, like the said property in question
cannot be equal to a new property.
ix. BECAUSE the Ld. Trial Judge erred in not applying the settled law that mesne
profits are to be calculated on the basis of the advantage the person in unlawful
occupation gets by the use of the property and same cannot be calculated on the
basis of the maximum rent that the landlord could have fetched if the premises
were freshly let out.
x. BECAUSE the Ld. Trial ought to have considered the settled law
in view of the definition of “mesne profits” in Section 2 (12) of Civil
Procedure Code which requires that onus of proving mesne
profits received by opposite party is always on a party to a
litigation against the person in the possession of the said property
and therefore person claiming mesne profits must prove with
certainty the “profit” (which a person in possession has in fact
receive or might have received with due diligence) and which
respondent admittedly failed to prove.
xi. BECAUSE Ld. Trial Judge awarded mesne profits at the rate of Rs.50,000/- per
month without any valid evidence before him.
xii. BECAUSE the Ld. Trial Judge fell in error in not considering that in the
absence of respondent proving with definite evidence recognized by law as to
appellant received advantages by the use of the said property in the range of
Rs.50,000/- per month during the period between 18.4.1999 to 31.3.2002, no
mesne profits could have been awarded by the Ld more than the amount being
given to the respondent by the appellant .
xiii. BECAUSE Ld. Trial Judge passed the impugned judgment without satisfying
the requirements of law relating to awarding of mesne profits.
xiv. BECAUSE the Ld. Trial Judge ought not to have awarded mesne
profits to the respondent at the rate of Rs. 50,000/- per month as
claim of the respondent was not proved by any witness much less
witness in the eyes of law since the only witness of respondent
was not authorised by the respondent to give evidence and on
this issue which was categorically raised by the appellant during
cross examination of the said witness of the respondent no
finding has been given by the Ld. Judge.

xv. BECAUSE the Ld. Trial Judge erred in not relying upon the un-
rebutted testimony of witnesses of appellant regarding the fact
that rate of rent during the relevant period could not have been
more than last rent paid by appellant i.e Rs. 9,350/- per month
and therefore damages/mesne profits during the relevant period
could not have been awarded at more than last rent paid to the
respondent at the rate of Rs. 9,350/- per month.
xvi. BECAUSE the Ld. Trial Judge also erred in not relying upon the
un-rebutted testimony of witnesses of appellant regarding the fact
that rent in Delhi has gone down substantially for similarly
situated properties during the relevant period which was also
proved by the fact that no questions or suggestions were put on
behalf of respondent during the cross examination of witness of
appellant i.e Shri J. M. D. Goel with respect to their categorical
statement that rate of rent in Delhi has gone down substantially
for similarly situated properties during the relevant period.
xvii. BECAUSE the Ld. Trial Judge while awarding mesne profits at the excessive and
exorbitant rate of Rs. 50,000/-, erroneously took note of and relied upon the so
called alleged MOU filed by respondent, though as per the established principles
of law said so called MOU was inadmissible in evidence and not liable to be
looked into for any inference whatsoever also because of the following reasons:-
a. As said MOU was created/manufactured barely 32 days prior to the
filing of the evidence by way of affidavit of the witness of the
respondent.
b. As bare perusal of same, makes it clear that same could at best, though it
was not, as same was a sham document, be termed as an agreement to
enter into another agreement to execute a lease deed and said MOU did
not confer any right and interest in the proposed lessee with respect to
the said property.

c. Said MOU was not a registered document.
d. Said MOU was a sham and manufactured document is clear from bare
perusal of deposition of witness of the appellant that no lease deed was
executed between the parties to the said MOU even up to the date of
cross examination of the witness of the respondent, whereas as per the
alleged MOU, lease deed was to be executed within 15 days from the
“execution” of the said “MOU”.
e. Since there was no duly executed lease deed in existence much less any
valid and legal lease deed, no reliance was liable to be placed by the Ld.
Trial Judge on such inadmissible document.
f. As said so called lease deed was a sham document and manufactured by
respondent with ulterior motive to mislead the Ld. Trial Judge and to
obtain mesne profits at exorbitant rate and on the said issue despite of
specific question by on behalf of the appellant to the witness of the
respondent, no finding has been given by the Ld. Trial Judge.
g. Said MOU was a sham document is also apparent from the fact that
witness of appellant, Mr. Gautam Budhiraja, in his deposition stated that
he did not see any document much less the resolution of M/s The
Associates India Financial Services Ltd. authorising one Shri Rajiv Sethi
to sign the so called MOU. It would be relevant to mention that
proposed lessee was even not examined as witness by the respondent.
e. As the Ld. Trial Judge was also not convinced with the said MOU being
a valid document as is apparent from the perusal of para 21 of the
impugned judgment.
xviii. BECAUSE the Ld. Trial Judge erroneously concluded that rate of rent as
allegedly shown by the alleged MOU was not rebutted by the appellant rather
bare perusal of the cross-examination of the witness of respondent shows that
appellant not only rebutted the alleged rate of rent but also duly objected to the
mode of production of alleged MOU and also brought before the Ld. Trial Judge
the fact that alleged MOU was sham a document and was procured by the
respondent for ulterior motives and which contention of appellant was also
proved by the fact that respondent did not produce before the Ld. Trial Judge
any authorized representative of alleged Associates India Financial Services Pvt.
Ltd. to evidence even the execution, if any, of alleged MOU.
xix. BECAUSE the Ld. Trial Judge erroneously awarded the mesne profits at the
single rate of Rs.50,000/- per month for whole period of 18.4.1999 to 31.3.2002
without taking in to consideration the downward trend in market and on this
positive case of the appellant there is no specific rebuttal.
xx. BECAUSE the Ld. Trial Judge while awarding the mesne profits, fell in error in
not considering the last rent admittedly paid by appellant of Rs.9350/- per month
to respondent under the said lease agreement and therefore the mesne profits
could not be more than Rs. 9350/- per month.
xxi. Because Ld. Trial Judge fell in error in not appreciating that though plot area
where said property is built is approximately 500 sq yrds but there are only 7
rooms in the said property and by no stretch of the imagination rent for said
property be Rs. 50,000/- per month.
xxii. BECAUSE in view of the facts and circumstances stated hereinabove, the Ld.
Trial Judge ought to have held that respondent failed to prove the claim of
mesne profit and the claim of respondent for mesne profits at the rate of Rs.
50,000/- per month was excessive, arbitrary, unreasonable and not liable to be
awarded.
xxiii. BECAUSE Ld. Trial Judge failed in error in awarding mesne profit @ Rs.
50,000/- even after categorically holding that respondent failed to prove that
respondent has taken on rent any premises as its transit house @ Rs. 35,000/-
xxiv. BECAUSE the Ld. Trial Judge committed grave error of law in awarding mesne
profits to the respondent at the excessive and exorbitant rate of Rs. 50,000/- per
month.
xxv. BECAUSE Ld. Trail Judge ought to have held that respondent
was not entitled for any mesne profit as appellant was a tenant
holding over.
xxvi. BECAUSE in view of abovestated legal and factual positions,
there exist sufficient grounds for this Hon’ble Court to set aside
the impugned judgment dated 20.09.2003.
15. That the present appeal is within the statutory limitation period.
16. That this Hon’ble Court is having jurisdiction to try the present
appeal.
17. That appellant has paid the requisite Court Fees on the present
appeal, however if is same is found to be deficient then appellant
undertakes to pay the same.
PRAYER
That in view of the above stated fact and circumstances it is
respectfully prayed that this Hon’ble Court may kindly be pleased to:-
1) Accept the present appeal and set aside the impugned judgment
dated 20.09.2003 whereby mesne profit has been awarded to the
respondent @ Rs. 50,000 per month for the said property.

Such other and further orders be passed as this Hon’ble Court
may deem fit and proper in the facts and circumstances of the case.
New Delhi Appellant
Date: 10.11.2003
Through
Ratan Kumar Singh,

Vandana Singh,
Nikhilesh Krishnan,
Advocates,
E-342 B, G. K. -1.
New Delhi 110048.
R.F.A No._________/2003
In the matter of :-
Versus
AFFIDAVIT
Of Sh._____________________, S/o ____________________Aged

approximately 51 years, R/o _________________________________________
I, the above named deponent do hereby solemnly affirm and declare as under:-
1. That I am _______________in the appellant company and

conversant with the facts of this case on the basis of the records
maintained by the appellant company in its regular course of business
hence competent to depose.
2. That accompanying appeal under Section 96 read with Order 41 of Civil

Procedure Code, 1908 has been prepared by our counsel under our instructions and
same contains averments which are true and correct to my knowledge on the basis of
the records maintained by the appellant company in its regular course of business and
also on the basis of personal knowledge.
Deponent
Verification:- Verified at New Delhi on this 10 th day of November, 2003 that the
contents of the abovesaid affidavit are true and correct to my knowledge on the basis of
also on the basis of my personal knowledge and nothing material has been concealed
therefrom.
Deponent
I.A. No. __________/2003

In
R. F. A No. ___________/2003
In the matter of :-
Versus
APPLICATION UNDER ORDER 41 RULE 5 READ WITH SECTION 151

CIVIL PROCEDURE CODE, 1908 FOR STAY OF THE EXECUTION
PROCEEDINGS BEING EXECUTION No. 25 OF 2001
MOST RESPECTFULLY SHOWETH:-
1. That the appellant, a Public Sector Enterprise, is this day filing the
accompanying appeal against the judgment dated 20.09.2003 passed by Ld. Trial Judge
(hereinafter referred to as the impugned judgment), contents of which may be read as
part and parcel of the present application as same is not reproduced herein for the sake
of brevity and to avoid repetition.
2. That appellant has challenged the impugned judgment inter alia on the following
grounds:-
a) That Ld. Trial Judge erroneously passed the impugned judgment ignoring facts
and laws applicable.
b). That Ld. Trial Judge failed to appreciate that rate of rent of a premises depends
upon the physical condition and its age etc irrespective of the locality as physical
condition age etc of the property prevails over the locality of the property.
c) That Ld. Trial Judge did not appreciate that abovesaid Mr. J.M.D.Goel, witness
of the appellant proved in his examination in chief and also in his cross examination
that said property was very old and in a damaged condition even at the time of
execution of the lease deed in 1982.
d) That Ld. Trial Judge failed to appreciate that despite of positive case of the
appellant that said property was very old and in a damaged condition even at the time of
execution of the lease deed in 1982 and condition of the property obviously deteriorated
thereafter, respondent did not even did not put any suggestion to that effect meaning
thereby said positive case of the appellant remained un-rebutted.
e) That Ld. Trial Judge did not even gave any finding to the positive unrebutted
case of the appellant that said property very was old and in a damaged condition even at
the time of execution of the lease deed in 1982 and condition of the property obviously
deteriorated thereafter.
f). That Ld. Trial Judge by not giving any finding fell in error that rate of rent of
any very old and damaged property, like the said property in question cannot be equal to
a new property.
g) That the Ld. Trial erroneously allowed the claims of respondent for mesne
profits at the excessive and exorbitant rate of Rs. 50,000/- per month without
respondent proving her entitlement for the same.
h) That the Ld. Trial Judge erroneously ignored the requirements of law while
awarding the mesne profits at the excessive and exorbitant rate of Rs. 50,000/- per
month.
i) That Ld. The Ld. Trial Judge also fell in error in not considering that in the
absence of respondent proving with definite evidence recognized by law as to appellant
received advantages by the use of the said property in the range of Rs.50,000/- per
month during the period between 18.4.1999 to 31.3.2002, no mesne profits could have
been awarded by the Ld. Trial Judge to the respondent much less mesne profits at the
excessive and exorbitant rate of Rs. 50,000/- per month. j) That the Ld. Trial Judge
ought to have awarded mesne profits if at all Ld. Trial Judge was to award the mesne
profits at a rate not more than the last agreed rent of Rs. 9350/- per month paid by the
appellant to the respondent and not the excessive and exorbitant rate of Rs. 50,000/- per
month.
k) That the Ld. Trial Judge failed to appreciate the settled law that mesne profits
can be awarded by the Courts only on the basis of the evidence before it and there was
no evidence admissible under law, produced by respondent before the Ld. Trial Judge to
substantiate her claim for mesne profits at the rate of Rs. 50,000/- per month.
l) That the Ld. Trial Judge ought not to have awarded mesne profits
to the respondent at the rate of Rs. 50,000/- per month as claim of the
respondent was not proved by any witness much less witness in the
eyes of law since the only witness of respondent was not authorised by
the respondent to give evidence.
m) That the Ld. Trial erred in ignoring the settled law in view of the
definition of “mesne profits” in Section 2 (12) of Civil Procedure Code
which requires that onus of proving mesne profits received by other
party is always on a party to a litigation against the person in the
possession of the said property and therefore person claiming mesne
profits must prove with certainty the “profit” (which a person in
possession has in fact receive or might have received with due diligence)
and which respondent admittedly failed to prove.
n) BECAUSE the Ld. Trial Judge while awarding mesne profits at the excessive
and exorbitant rate of Rs. 50,000/-, erroneously took note and relied upon the so called
alleged MOU filed by respondent, though as per the established principles of law said
so called MOU was inadmissible and not liable to be looked into for any inference
whatsoever because of the following reasons:-
a. As bare perusal of same, makes it clear that same is merely a MOU to
enter into a lease deed and without accompanied by duly executed registered
lease deed, so called MOU was inadmissible in evidence and not liable to be
relied upon by Ld. Trial Judge.

b. As bare perusal of deposition of witness of appellant makes it clear that the
lease as allegedly intended was never executed and therefore reliance placed by
Ld. Trial Judge on the so called MOU for awarding damages/mesne profits at
the excessive and exorbitant rate of Rs. 50,000/- was per se bad.
c. As since there was no duly executed lease deed in existence much less any
valid and legal lease deed, no reliance was liable to be placed by the Ld. Trial
Judge on such inadmissible document.
d. As said so called lease deed was a sham document and manufactured by
respondent with ulterior motive to mislead the Ld. Trial Judge and to obtain
mesne profits at exorbitant rate, which is apparent from the fact that witness of
appellant Mr. Gautam Budhiraja in his deposition stated that he did not see any
document much less the resolution of M/s The Associates India Financial
Services Ltd. authorising one Shri Rajiv Sethi to sign the so called MOU.
e. As the Ld. Trial Judge was also not convinced with the said MOU being a
valid document as is apparent from the perusal of para 21 of the impugned
judgment.
o) That in view of the facts and circumstances stated hereinabove, the Ld. Trial
Judge ought to have held that the claim of respondent for mesne profits at the rate of Rs.
50,000/- per month was excessive, arbitrary, unreasonable and not liable to be awarded.
p) That the Ld. Trial Judge wrongly awarded the mesne profits to the respondent.
3. That in view of preceding para nos. 2 (a) to (p), it is clear that the
impugned judgment dated 20.09.2003 is based on erroneous facts and
law.
4. That in view of the abovestated facts and circumstances, it is
apparent that appellant is having very good prima facie case and there
are sufficient reasons/grounds to believe that impugned judgment
dated 20.09.2003 passed by the Ld. Trial Judge, Delhi is liable to be set
aside by this Hon’ble Court.
5. That the balance of the convenience also lies in favour of the
appellant and against respondent.
6. That it is stated that present appeal is being filed within the
limitation period however respondent revived the already filed Execution
Proceedings, which was filed for obtaining possession of the said
property and under the said execution possession was handed over to
the respondent on 31.3.2002 by the appellant, being Execution
Proceeding No.25/2001 and initiated the execution proceeding for
execution of impugned judgment dated 20.09.2003 and has obtained
an order whereby the Ld. Trial Court has passed an order for
attachment of the properties of the appellant. One of the properties
attached is the registered office of the appellant in Delhi, address of
which is given in the memo of parties alongwith the accompanying
appeal. It is stated that attachment order passed with respect to the
said immoveable property of the appellant, value which is in crores, has
no nexus with the decreetal amount, which is merely approximately Rs.
17.75 lakhs.
7. That it stated that appellant is a public sector enterprise and
there is no likelihood of appellant even attempting to evade the
impugned judgment/ decree.
8. That it is important to mention that said attachment order has
been passed even within the statutory limitation period for filing the
accompanying appeal that also without any notice to the appellant.

9. That it is stated that serious injury and irreparable loss would be
caused to the appellant and accompanying appeal will become
infructutous, if the said Execution Proceeding No.25/2001 is not stayed
by this Hon’ble Court.
PRAYER
In view of abovestated facts and circumstances and in interest of
justice it is respectfully prayed that this Hon’ble Court may kindly be
pleased to:-
(a) Stay the execution proceedings no. 25/2001 till the final
adjudication of the accompanying appeal and direct for stay of the
attachment orders already passed.
Such other and further orders be passed as this Hon'ble Court
may deem fit and proper in the facts and circumstances of the present
case.
New Delhi Appellant
Date: 10.11.2003 Through
Ratan Kumar Singh,

Vandana Singh,
Nikhilesh Krishnan,
Advocates,
E-342 B, G. K. -1.
New Delhi 110048.
I.A. No._________/2003
In
R.F.A No._________/2003
In the matter of :-
Versus
AFFIDAVIT
Of Sh._____________________, S/o ____________________Aged


2. That accompanying application under Order 41 Rule 5 read with

Section 151 of Civil Procedure Code, 1908 for stay of the execution
proceedings being execution No. 25 OF 2001 has been prepared by our
counsel under our instructions and same contains averments which are
true and correct to my knowledge on the basis of the records
and also on the basis of personal knowledge.
Deponent
therefrom.
Deponent
I.A. No. ________/2003

In
R. F. A No. ___________/2003
In the matter of :-
Versus
APPLICATION UNDER SECTION 151 CIVIL PROCEDURE CODE,

1908 FOR EXEMPTION FROM FILING CERTIFIED COPIES OF
ANNEXURE NOS. A, B, C, F & H
MOST RESPECTFULLY SHOWETH:-
1. That the appellant is this day filing the accompanying appeal against the
impugned judgment dated 20.09.2003 passed by Ld. Trial Judge, contents of which may
be read as part and parcel of the present application as same is not reproduced herein for
the sake of brevity and to avoid repetition.
2. That alongwith the accompanying appeal appellant has filed true copies of the
Annexure Nos. A, B, C, F & H.
3. That the appellant seeks indulgence of this Hon'ble Court to accept the same in
view of the urgent nature of the matter.
4. That the appellant has applied for obtaining the certified copies of the abovesaid
annexures and the appellant undertakes to submit the same as and when the same are
made available to the appellant.
5. That in view of the abovestated facts and circumstances, it is respectfully prayed
that this Hon’ble Court may kindly be pleased to exempt the appellant from filing
certified copies of the Annexure Nos. A, B, C, F & H and the true copies of the same
may be accepted and taken on record.

Such other and further orders be also passed as this Hon’ble
Court deems fit and proper in the present facts and circumstances of
the case.
New Delhi Appellant
Ratan Kumar Singh,

Vandana Singh,
Nikhilesh Krishnan,
Advocates,
E-342 B, G. K. -1.
New Delhi 110048.
I.A. No._________/2003
In
R.F.A No._________/2003
In the matter of :-
Versus
AFFIDAVIT
Of Sh._____________________, S/o ____________________Aged


2. That accompanying application under Section 151 of CPC has

been prepared by our counsel under our instructions and same
contains averments which are true and correct to my knowledge on the
basis of the records maintained by the appellant company in its regular
course of business and also on the basis of personal knowledge.
Deponent
therefrom.
Deponent
R. F. A No. ___________/2003
In the matter of :-
Versus
APPLICTION ON BEHALF OF THE APPELLANT UNDER SECTION 149 OF

CIVIL PROCEDURE CODE, 1908
Respectfully Showeth:-
1. That the appellant is filing this day filing the accompanying appeal against the
impugned judgment dated 20.9.2003 passed by Ld. Trial Judge, Delhi.
2. That in the impugned judgment, the Ld. Trial Judge has awarded mesne profits
to the respondent at the rate of Rs. 50,000/- for the period between 18.4.1999 to
31.3.2002, which comes to approximately Rs. 17,75,000/-. The Ld. Trial Judge has also
directed for adjustment to be given to appellant for the amount already paid by appellant
to the respondent pursuant to directions earlier given by Ld. Trial Judge. The amount
already paid by the appellant to the respondent is Rs. 4,39,850/-.
3. That in view of the above, after adjusting the said amount already paid by the
appellant to the respondent, the awarded amount to the respondent comes to Rs.
13,35,150/- and on which appellant is paying Court Fees of Rs. 15,750/-.
4. That appellant has already deposited the requisite amount in the form of Demand
Draft in the Treasury, Delhi for obtaining the court fees stamp paper, however till the
time of filing of the accompanying appeal, appellant has not been given the court fees
stamp paper.
5. That appellant is hereby filing photo copy of the challan filed with the treasury,
Delhi as “ANNEXURE A”.

6. That appellant hereby undertakes to file the court fees stamp paper before this
Hon’ble Court as and when it is given to it by the treasury, Delhi.
In view of the abovestated facts and circumstances, it is respectfully prayed that
the appellant may be given some more time to file the court fees stamp before this
Hon’ble Court.
Such other and further orders may be passed as this Hon’ble Court deems fit and
proper in the present facts and circumstances of the case.
New Delhi Appellant
Ratan Kumar Singh,

Vandana Singh,
Nikhilesh Krishnan,
Advocates,
E-342 B, G. K. -1.
New Delhi 110048.
I.A. No._________/2003
In
R.F.A No._________/2003
In the matter of :-
Versus
AFFIDAVIT
Of Sh._____________________, S/o ____________________Aged


2. That accompanying application under Section 149 of Civil

Procedure Code, 1908 has been prepared by our counsel under our
instructions and same contains averments which are true and correct
to my knowledge on the basis of the records maintained by the
appellant company in its regular course of business and also on the
basis of personal knowledge.
Deponent
therefrom.
Deponent
RFA No. 842/2003

Through Mr. Valmiki Mehta, Sr. Advocate,
with Mr. Ratan Kumar & Mr. N. Krishnan,
Advocates.
Versus
Kanta Manocha ……..Respondent

Through
CORAM:
HON’BLE MR. JUSTICE DALVEER BHANDARI
HON’BLE MR. JUSTICE H.R. MALHOTRA
O R D E R
12.11.2003
C.M. 2041/2003
Allowed subject to all just exceptions.
R.F.A. NO. 842/2003
Notice to the respondent to show cause as to why this appeal be not admitted,
returnable on 9th December, 2003.
Trial court record be summoned through a special messenger before the next
date of hearing.
C.M. 2040/2003
Notice, returnable on 9th December, 2003.

On appellant’s depositing the entire decreetal amount with interest with the
registrar general of this Court, there shall be stay of the attachment order & decree
passed by the trial court.
Dasti.
Sd/-
DALVEER BHANDARI, J.
Sd/-
H.R. MALHOTRA, J.
RFA No. 842/2003

Through Mr. Valmiki Mehta, Sr. Advocate,
with Mr. Ratan Kumar & Mr. N. Krishnan,
Advocates.
Versus
Kanta Manocha ……..Respondent

Through Mr. P.K. Jain, Ms. Archana Jain, Advocates.
CORAM:
HON’BLE MR. JUSTICE DALVEER BHANDARI
HON’BLE MR. JUSTICE H.R. MALHOTRA
O R D E R
09.12.2003
RFA 842/03
Admitted. Paper books be filed within two months.
CM 2040/2003
In pursuance of the directions of this court, the applicant has deposited the amount of
Rs. 12,67,415/- with the Registrar General of this court. The respondent would be at
liberty to withdraw that amount on furnishing security to the satisfaction of the
Registrar General and for that purpose the matter be placed before the Registrar General
on 15th December,2003.
December 9. 2003
Sd.
DALVEER BHANDRI,J.
Sd.
H.R. MALHOTRA,J.
15.12.2003
RFA 842/2003
Security Bond not furnished by the respondent. Time is sought for by
Ld. Counsel for the respondent.
To come up on 11th February 2004 at 2.30 P.M.
December 15, 2003

V.B.Gupta.
Registrar General
11.02.2004
RFA 842/2003
Security Bond has still not been furnished by the respondent.
To come up on 12th April 2004 at 2.30 P.M.
V.B.Gupta.
Registrar General
February 11, 2004.

HPC Vs (1) - Kanta Manocha Appeal

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HPC Vs (1) - Kanta Manocha Appeal

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R.F.

Present: Mr. Nikhilesh Krishnan for the appellant.

To come up on 11th February, 2004 at 2.30 P.M.

December 15, 2003

Present: Mr. Nikhilesh Krishnan for the appellant.

R.F.A NO. 842/03

Hindustan Paper Corporation …….Appellant

Smt. Kanta Manocha ……..Respondent

Sl. No. Particulars Court Fees Pages

1. Urgent Application Rs.3.00 A

New Delhi Appellant

Ratan Kumar Singh,

Hindustan Paper Corporation …….Appellant

Smt. Kanta Manocha ……..Respondent

The accompanying appeal under Section 96 read with Order 41 of CPC

be listed urgently on 12.11.2003 as urgent reliefs are prayed for.

Ratan Kumar Singh,

IN THE MATTER OF:-

Hindustan Paper Corporation

Smt. Kanta Manocha

New Delhi Appellant

Ratan Kumar Singh,

Hindustan Paper Corporation …….Appellant

Smt. Kanta Manocha

APPEAL UNDER SECTION 96 READ WITH ORDER 41 OF CIVIL

sales depots in various part of countries including Delhi.

2. That respondent is the owner/landlady of the property bearing no. E-525,

deed) for an initial period of 3 years on a monthly rent of Rs. 6,500/- .

It is important to mention that at the time of execution of the said

and damaged condition. Factum of said property being in damaged

condition was duly brought to the notice of respondent at the time of

execution of the lease deed.

4. That after the expiry of the initial period of three years as

envisaged by said lease deed, both the parties with consent

up to 17.1.1987 subject to increase of rent by 10%, i.e Rs. 7,150/- p.m.

It is relevant to note that as per the said lease agreement,

by appellant to the respondent was Rs. 9350/- (Rs. 7,150 + Rs.

5. That after the expiry of extended period of two years on

17.1.1987, respondent informed the appellant that appellant could

continue to remain in the possession of the said property as the lawful

of extended period, appellant continued to pay the agreed rent to the

respondent which was being duly accepted by respondent without any

6. That however without any rhymes and reasons, respondent

illegally sought to terminate the legal tenancy of appellant vide her

alleged legal notice dated 20.2.1990. Thereafter respondent filed one

414/1991 tilted as Kanta Manocha Vs. Hindustan Paper Corporation

Hon’ble Court vide its order dated 13.7.1998.

7. That after the dismissal of its said suit, respondent sought to

reply dated 28.8.1999.

8. That thereafter respondent filed a civil suit before the District

Judge, Tis Hazari Court on 15.11.1999, lastly numbered as Suit No.

179/2001, for recovery and possession against the appellant.

Respondent also prayed for holding an inquiry under Order 20 Rule 12

of CPC and awarding damages/charges for use and occupation of said

till the handing over of possession. Copy of the plaint is annexed

categorically denied all allegations made by respondent in its said suit

and inter alia raised pleas of waiver, estoppel, resjudicata and

limitation. In its written statement and subsequent affidavit, appellant

the acceptance and encashment of cheque given for rent by respondent,

1.3.1999 was no more in existence and consequently said suit based on

such illegal notice was not maintainable as barred by principle of

waiver. Copies of the written statement of appellant and affidavit dated

15.11.2000 of appellant are annexed herewith as “ANNEXURE-B &