Bangalore District Court
M/S.Millennia Realtors Pvt. Ltd vs M/S.Aricent Technologies on 13 April, 2016
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, BANGALORE.
Title sheet for
Judgment in suits
(R.P.91)
Present: Sri. B.Venkatesha, B.Sc., LL.B.,
(Name of the presiding judge)
Original suit No.26660/2010
(CCCH-29)
Plaintiff:- M/s.Millennia Realtors Pvt. Ltd.,
A company registered under the
Companies Act, 1956, having its
registered office at The Millenia,
Tower B, Level 12-14, 1 & 2
Murphy road, Ulsoor, Bengaluru-
560 008. Rep. by its Director and
authorized signatory
Mr.Raj A.Menda.
(By Pleader M/s Dua Associates )
V/s
Defendant:- M/s.Aricent Technologies
(Holdings) Ltd., (Transferee
Company on amalgamation with
Flextronics Software Systems
Ltd.) A Company registered under
the Companies Act, 1956, having
its registered office at No.5, Jain
Mandir Marg (Annexe),
Connaught Place, New Delhi 110
001.
Also having office at No.18/1,
RMZ Ecozen, Outer Ring Road,
Panathur Post,
Bengaluru 560 087.
(By Pleader M/s King & Patridge)
2 O.S.No.26660/2010
Date of Institution of the suit 30-09-2010
Nature of the (Suit or pro-note, suit for Eviction/
declaration and possession, suit for Damages
injunction, etc.)
Date of the commencement of recording of 22.11.2011
the Evidence
Date on which the Judgment was 13-04-2016
pronounced
Year/s Month/s Days
Total duration 05 06 13
XXVIII ADDL.CITY CIVIL JUDGE
BANGALORE
3 O.S.No.26660/2010
JUDGMENT
This is a suit filed by the plaintiff Company against the defendant Company for eviction of the defendant from 27% of the schedule B property i.e. 3045 sq.ft on the ground floor of Block B, 13705 sq.ft on the first floor of Block B, 12960 sq.ft on the 2nd floor of Block B and 640 sq.ft of service area in the basement of Block B as shown in yellow colour on the plans annexed as Annexure A to F to the plaint and more fully described in the plaint C schedule (hereinafterwards referred to as suit C schedule property) and for a direction to the defendants to pay a sum of Rs.57,63,700/- towards damages/mesne profits in respect of unlawful occupation of the suit C schedule property from 2.4.2010 and also to direct the defendants to pay the damages or mesne profits at the rate of Rs.30/- per sq.ft per month for built up area of 29,710 sq.ft and at the rate of Rs.10/- per sq.ft for service area of 640 sq.ft of the suit C schedule property from the date of filing this suit till the date of handing over vacant possession of the suit C schedule property with interest at 24% p.a. from the date of suit till the date of payment and for costs, etc.
2. The plaintiff's case in brief is that the plaintiff and the defendant are the Companies registered under the 4 O.S.No.26660/2010 Companies Act, 1956. The defendant company is said to be the transferee company pursuant to amalgamation with M/s.Flextronics Software Systems Ltd. Previously it was known as Hughes Software Systems Ltd. The plaintiff had entered into a Development agreement on 3.5.2003 with one M/s.Rani Rasamani Constructions (formerly known as RR Real Estates and Constructions) (hereinafterwards referred to as R.R.Constructions) in respect of the lands bearing Sy.Nos.18/1, 18/2, 18/5A, 18/5B, 20/1A, 20/1B, 20/2B and 20/3 of Kadubeesanahalli village, Bengaluru East taluk. As per the terms of the said development agreement, the plaintiff and R.R. Constructions would share the land and the development in the ratio of 73:27. The said development of the project is known as RMZ Ecozen. M/s.R.R.Constructions had already acquired title to an extent of 4 acres 33 guntas in Sy.Nos.18/1, 18/2, 18/5A and 18/5B of Kadubeesanahalli village. The said M/s.R.R. Constructions had promised to the plaintiff that it would acquire title and obtain all necessary permissions in respect of balance acres covered under the agreement dt.3.5.2003. It was proposed to construct 3 blocks of building with a total saleable area of 1,12,405 sq.ft which was to include other infrastructure such as driveways for entry and exit of vehicles, parking lots, 5 O.S.No.26660/2010 sidewalks, landscaping etc and that it would be developed as the first phase. It was further pleaded that Hughes was keen in starting software operations in Bengaluru and was in need of premises in that regard. After discussions with the plaintiff and M/s.R.R.Constructions, the Hughes expressed its desire to take on lease premises with certain specifications as per the agreement dt.19.5.2003 that was executed in respect of the property shown as plaint A schedule i.e the land comprising of Sy.No.18/1, 18/2, 18/5A, 128/5B, 20/1A, 20/1B, 20/2B and 20/3 of Kadubeesanahalli village in all measuring 6 acres 20 guntas. As per terms of the said agreement dt.19.5.2003, the development relating to first phase consisting of 3 blocks of building is to be carried out in the area of 2 acres within the suit A schedule property. The plaintiff agreed to develop and the plaintiff and M/s.R.R.Constructions agreed to deliver to Hughes a total area of 1,03,100 sq.ft in the building. The said property is shown as plaint B schedule property. As per letter dt.22.5.2003 Hughes agreed to take on lease the remaining area of 9305 sq.ft which includes ground floor of Block B. The suit B schedule property in all measuring 1,12,405 sq.ft which includes ratio of 73 : 27 of the plaintiff and M/s.R.R.Constructions. As per the terms of the said development agreement, the Phase-1 6 O.S.No.26660/2010 development area was handed over to the possession of the defendant on 15.11.2003 and that therefore Hughes became the tenant of M/s.R.R.Constructions with respect to suit C schedule property and the tenancy of the defendant with the plaintiff with respect to the remaining portion of suit B schedule property started with effect from 15.11.2003. Suit C schedule property is originally fell to the share of M/s.R.R.Constructions. The plaintiff has instituted a suit in OS.16735/2005 for ejectment and recovery of arrears of rent in respect of the property that fell to the share of the plaintiff and that the said suit is pending for adjudication. The defendant has filed O.S.25312/2007 seeking specific performance of contract under the agreement dt.19.5.2003 and that the said suit is also pending for adjudication. It is further pleaded that in respect of suit C schedule property, the defendant was required to pay rent at the rate of Rs.18/- per sq.ft on the leased area of the building and Rs.6/- on the service area in the basement floor to the said M/s.R.R.Constructions. Since no lease deed was executed and registered in terms of the agreement dt.19.5.2003, tenancy of the defendant in respect of the suit schedule property is a tenancy from month to month. The said tenancy was terminable by way of issuing notice as per Sec.106 of the Transfer of 7 O.S.No.26660/2010 Property Act, 1882. As per notice dated 27.1.2007, the plaintiff is informed that the said M/s.R.R.Constructions had issued a notice to the defendant that the defendant has lost all rights under the said agreement dated 19.5.2003 in respect of suit C schedule property and requested the defendant to quit and deliver vacant possession of the suit schedule C property. The said notice has been duly served to the defendant. In spite of it, the defendant failed to quit and deliver vacant possession of the suit schedule property to M/s.R.R.Constructions. In the meanwhile, M/s.Flextronics claimed to enter into a scheme of arrangement by way of amalgamation whereby, M/s.Flextronics eventually came to be known as Aricent Technologies (Holdings) Ltd and that therefore the said M/s.Aricent Technologies (Holdings) Ltd is arrayed as the defendant to this suit. It is further pleaded that the plaintiff has purchased the suit C schedule property from M/s.R.R.Constrructions vide registered sale deed dated 2.4.2010. Therefore, the plaintiff has stepped into the shoes of the original lessor and thus he became entitled to eject the defendant from the suit C schedule property. On 20.7.2010, the plaintiff has issued another notice to the defendant by terminating its tenancy in respect of suit C schedule property and requested the defendant to quit and deliver the 8 O.S.No.26660/2010 vacant possession of the suit schedule property to the plaintiff after expiry of 15 days from the date of receipt of the said notice. The said notice was served to the defendant on 21.7.2010. In spite of that, the defendant failed to quit and deliver vacant possession of the suit schedule C property to the plaintiff. The defendant had sent a reply notice dt.5.8.2010 raising several frivolous contentions and also the registered sale deed executed by M/s.R.R.Constructions in favour of the plaintiff is not a genuine transaction. Therefore, M/s.R.R.Constructions continues as a lessor and that the plaintiff has no authority to terminate the tenancy. Right from 19.5.2003 suit C schedule property was a distinct and separately demarcated property though it was formed a portion of the suit B schedule property. The remaining portion of the suit B schedule property is also belonging to the plaintiff and tenancy in respect of the said portion was terminable by way of issuing a notice as per Sec.106 of T.P.Act. Therefore, there is no question of splitting of the tenancy at this stage. The defendant failed to deliver vacant possession of suit C schedule property in terms of the notice dt.20.7.2010. The defendant is in unlawful occupation of the suit C schedule property from February 2007. Therefore, the defendant is liable to pay the plaintiff damages for illegal use and occupation from 2.4.2010 till 9 O.S.No.26660/2010 handing over vacant possession of the suit C schedule property to the plaintiff. The defendant is bound to compensate the plaintiff by paying damages for use and occupation at the rate of Rs.30/- per sq.ft per month for the premises and Rs.10/- in respect of service areas in the basement of the suit C schedule property. Therefore, the defendant is liable to pay to the plaintiff a sum of Rs.57,63,746.35/- towards illegal use and occupation from 2.4.2010. The defendant is also liable to compensate the plaintiff towards the illegal use and occupation of suit C schedule property at the aforesaid rate till handing over the possession of suit C schedule property to the plaintiff. Cause of action for the present suit arose on 15.11.2003, 27.1.2007, 2.4.2010, 20.7.2010 and 5.8.2010 when the defendant is denying the title of the plaintiff and continued with the illegal occupation of the suit C schedule property despite the plaintiff's notice dt.20.7.2010. Therefore, the plaintiff has constrained to institute this suit.
3. On service of suit summons, the defendant company had put its appearance through its counsel and has submitted its written statement contending that this suit is not maintainable and that it is liable to be dismissed with costs. The defendant was not a party to the agreement dt.3.5.2003 and that therefore 10 O.S.No.26660/2010 the plaintiff has to prove the contents of the said document. The defendant has admitted that it was in need of a large development Centre in Bengaluru and that therefore the defendant not only expressed its desire to take on lease the property with certain specifications suitable for its requirements, but also made it clear to the plaintiff and land owner M/s.R.R.Constructions to have a right to purchase the property with absolute rights of ownership eventually besides development of the property agreeing to its specifications. On that basis, the agreement dated 19.5.2003 was entered into and executed between the plaintiff, M/s.R.R.Constructions and the defendant in respect of the suit A schedule property that measures 6 acres 30 guntas. The defendant had admitted that as per the said agreement, the plaintiff and M/s.R.R.Constructions agreed to develop buildings in an area of 2 acres out of plaint A schedule property. The defendant also admitted that the plaintiff and M/s.R.R.Constructions have jointly agreed to deliver total area of 1,03, 100 sq.ft of built up area to the defendant. Subsequently, the defendant also had admitted that additional extent of 9305 sq.ft agreed to be taken on lease by the defendant and that the total area is 1,12,405 sq.ft that is shown as plaint B schedule property. It is not correct that separate areas demarcated that 11 O.S.No.26660/2010 belonging to plaintiff and M/s.R.R.Constructions over the subject matter of the lease in favour of the defendant. The entire area of 1,12,405 sq.ft belonging to the plaintiff and M/s.R.R.Constructions jointly in the ratio of 73 : 27% and that the plaint B schedule property was the subject matter of the lease agreement dt.19.5.2003 that is executed in favour of the defendant. The defendant has specifically admitted that lease in favour of the defendant was to commence only after completion of Phase-I development and after obtaining of occupancy certificate and after possession of Phase-I development was handed over to the defendant by the plaintiff and M/s.R.R.Constructions and that the said event shall be happening on or before 30.10.2003. The said lease agreed between the parties was initially for a period of 5 years from 30.10.2003 with an option in favour of the defendant to renew the same for further period of 5 years on expiry of initial period of 5 years. It is not correct that the obligation to pay rent commences from the date of handing over possession of suit B schedule property to the defendant. The defendant has further submitted that the obligation on the part of the defendant to pay rent was to commence only on happening of 3 events. They are 1. Completion of phase- I development, 2. Obtaining of occupancy 12 O.S.No.26660/2010 certificate and 3. Delivery of demised property to the defendant. The agreement dt.19.5.2003 was an agreement for development of land and subsequent lease with purchase option to the defendant. Plaintiff was the owner of 73% of the total saleable area of 1,12,405 sq.ft out of suit B schedule property and that M/s.R.R.Constructions would own remaining 27% therein. It is not correct that the suit C schedule property is M/s.R.R.Construction's share as contended. The plaintiff and M/s.R.R.Construction handed over possession of their respective shares in the suit B schedule property to Hughes on 15.11.2003 and that as on 15.11.2003 Hughes became a tenant of M/s.R.R.Constructions with respect to suit C schedule property and that the defendant is the tenant of the plaintiff with regard to remaining C schedule property are all not correct. The entire portion is a single property. Share of the plaintiff and Rani Rasamani is not identifiable. Therefore, the question of dividing builders and owners share never arises. Even after completion of the building and commencement of tenancy, there is no bifurcation and that this fact is undisputed. It is not correct that the defendant is liable to pay rent at the rate of 18% per sq.feet on the leased area of the building and Rs.6/- for the service area in the basement floor to the M/s.R.R.Constructions. The 13 O.S.No.26660/2010 defendant is not a party to any contract with M/s.R.R.Constructions or with the plaintiff where these portions can be identified. There is no such bifurcation of either built up area or rent payable to each party under the said agreement. It is further pleaded that since no lease deed was executed and registered in terms of the agreement dt.19.5.2003 tenancy with regard to suit C schedule property has commenced and to be continued from month to month and that the said tenancy was thus terminable by notice in terms of Sec.106 of T.P.Act is not correct. No quit notice was issued, but a reply to a recent letter exercising its purchase option. Therefore, the question of M/s.Flextronics failing to quit and hand over to M/s RRCL never arises as the lease in favour of M/s.Aricent Technologies is for a period of 10 years and Aricent being entitled to buy the leased property and is fully entitled to remain as lawful lessor and intending purchaser in part performance of contract of sale. As the lease in favour of Aricent has come into existence and the same is admitted by the plaintiff, hence there is no justification whatsoever to put an end to the lease and deprive Aricent of its right to purchase the property in its favour. It is not correct that the plaintiff has purchased the suit C schedule property from M/s RRCL and that therefore the plaintiff is not the owner of the 14 O.S.No.26660/2010 entire B schedule property. It is not correct that the plaintiff has stepped into the shoes of M/s R.R.Constructions Ltd and that it is entitled to eject the defendant from the suit schedule property. As per the said agreement, no split up right exists from the beginning. It is not correct that the defendant is in unlawful possession and enjoyment of the suit schedule property from February 2007. It is not correct that the defendant is liable to pay damages to the plaintiff for its illegal use and occupation of the premises from 2.4.2010 till handing over vacant possession of the suit schedule property to the plaintiff. The defendant is not liable to pay to the plaintiff any sum much less damages towards the occupation of the said property since it is in lawful occupation of suit C schedule property as an intending purchaser. Therefore, the entire claim of the plaintiff both for eviction of the defendant from the suit C schedule property and the monetary claim as prayed in the plaint is not tenable. The defendant has a right to purchase the property and it has already filed a suit for specific performance of the property and that the said suit is pending before this Court. The plaintiff as well as M/s.R.R.Constructions has hurriedly conspired during the pendency of the defendant's suit for specific performance only with an intention to defeat the defendant's case for specific 15 O.S.No.26660/2010 performance. Therefore, the defendant has sought for dismissal of this suit with its costs.
4. Based on the aforesaid pleadings, this Court has framed the following issues:-
1. Whether the plaintiff proves that the defendant was tenant under him in respect of C schedule property whose tenancy was validly terminated?
2. Whether the defendant is liable to deliver the vacant possession?
3. Whether the defendant is liable to pay damages of Rs.57,63,700/- and Rs.30/-
per sq.ft per month as damages, Rs.10/-
per sq.ft for service area of C schedule property with interest at 24%?
4. What order or decree?
5. The Managing Director of the plaintiff Company Mr. Raj Menda examined himself as P.W.1 by way of filing affidavit evidence. 15 documents were exhibited and marked as Ex.P-1 to P-15 and closed his evidence to substantiate his claim. One Manoj Kumar Vaish the authorised signatory by the defendant Company is examined as D.W.1 and 23 documents were marked on behalf of defendant as Ex.D-1 to D-23 and closed evidence to substantiate its defence.
6. Heard the arguments of the learned counsels appeared for the plaintiffs as well as the defendants. 16 O.S.No.26660/2010 The learned counsel for the plaintiff has relied on the following citations in favour of his arguments for the plaintiff.
(i) AIR 1968 SC 1028 (Kollipara Sriramulu (D) by LRs Vs Aswathnarayana (D) by LRs and others). (ii) 2003(66) DRJ 191 (Sohan Singh and others Vs. State Bank of Patiala). (iii) (1998) 2 SCC 226 (Bismillah Begum V/s Rahmatullah Khan) (iv) AIR 1962 SC 1182 K.Simrathmull's case. ILR 2012 Kar 2388 Kempahanumiah V/s M/s Allied Motors Service Station & others, 2000(6) SCC 394 Antonty V/s K.C.Ittoop & Sons and others, ILR 2013 Kar 3255 M/s Kothary Intergroup Ltd V/s M/s Vinayaka Enterprises, 2010(4) SCC 753 Karam Kapani & others V/s Lalchand public Charitable Trust & another, 2006(1) SCC 228 C.Albert Moris V/s K.Chandrashekaran & others, 2006(4) SCC 205 Swaroop singh V/s J.Jagadeeshsingh & others, 2012(8) SCC 516 Ahmedsab (Dead) by LRs & others V/s Syed Ismail & AR 1963 SC 1405 as well as 2004 (2) SCC 712 FCI V/s Babulal Agarlal.
7. In a case reported in AIR 1968 SC 1028 Kollipara Sriramulu's case, at para 3, the Hon'ble Apex Court has held that "It is well settled that a mere reference to a future formal contract will not prevent a binding bargain between the parties. The fact that the parties refer to the preparation of an agreement 17 O.S.No.26660/2010 by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract." If the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case, there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case, there is a binding contract and the reference to the more formal document may be ignored. In a case reported in 2003(66) DRJ 191 Sohan Singh's case for ejectment and decree for damages, the Hon'ble Delhi High Court at para 14 has held that "unregistered lease deed executed for 5 years with option to the lessee to renew when no demand for renewal from lessee and no case for specific performance was filed, then the lessee is to be treated as month to month at sufferance whose lease can be terminated by serving a valid notice under Sec.106 of T.P.Act. The Hon'ble Delhi High Court has further held at para 14 that "The matter can be looked at from another stand point 18 O.S.No.26660/2010 also. Since the defendant has neither served a notice or demand seeking execution of an instrument of renewal and due registration thereof, and has also not filed any case for specific performance, therefore defendant is presumed to be happy with resultant status of a tenant at sufferance or a month to month tenant. In a suit filed for specific performance of contract dt.19.2.1948, in a case reported in AIR 1962 SC 1182 K.Simrathmull's case, the Hon'ble Apex Court at para 5 has accepted the majority decision of the Federal Court rendered in Shanmugam Pillai Vs. Annalakshmi (AIR 1950 FC 38) wherein it was held that "where under an agreement an option to a vendor is reserved for repurchasing the property sold by him, the option is in the nature of a concession or privilege and may be exercised on strict fulfillment of the conditions of which it is made exercisable. The Hon'ble Federal Court has further held that "If the original vendor fails to act punctually according to the terms of the contract, the right to repurchase will be lost and cannot be specifically enforced. In a suit filed for specific performance of the agreement. In another case reported in 1998(2) SCC 226 Bismillah Begum's case filed for specific performance of contract dt.8.2.1955, the Apex Court has held that "time is always the essence of contract for reconveyance of the property. 19 O.S.No.26660/2010 Repayment having not been made by the plaintiff within the stipulated time, option of reconveyance in her favour must be deemed to have lapsed." It was further held that "An option for the renewal of a lease, or for the purchase or repurchase of the property, must in all cases be exercised strictly within the time limited for the purpose, otherwise it will lapse..." In a suit for eviction of tenant, the three Judges Bench of the Hon'ble Apex Court in a case reported in 2000(6) SCC 394 Anthony Vs. K.C.Ittoop & Sons and others at paras 8 & 11 has held that "the lease deed relied on by the plaintiff was intended to be operative for a period of five years. It was an unregistered instrument. Hence, it could not create a lease on account of the inhibiting provisions of Sec.107 of the T.P.Act 1882 and Secs 17(1) & 49 of the registration Act, 1908. Therefore, so far as the instrument of lease is concerned there is no scope for holding that the appellant is a lessee by virtue of the said instrument. The Court is disabled from using the instrument as evidence..." At para 16 the Hon'ble Apex Court has further held that "Non-registration of the document caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nevertheless the presumption that a lease not 20 O.S.No.26660/2010 exceeding one year stood created by conduct of parties remains unrebutted" At para 15 the Hon 'ble Apex Court has held that "When it is admitted that legal possession of the building has been transferred to the appellant, there is no scope for countenancing even a case of licence.." In a suit for recovery of possession and mesne profits, in a case reported in 2012(11) SCC 405 (Manu/SC/0757/2012) Payal Vision Ltd. Vs. Radhika Chowdhary, the Hon'ble Apex Court has held the ratio decidendi that "Tenancy shall be terminated upon service of notice if such notice has not been complied with provisions of law. The Hon'ble Apex Court has further held that in such type of suits "All that is required to be established by the plaintiff-landlord is the existence of jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Sec.106 of the T.P.Act." In a suit for ejectment, a case reported in ILR 2013 Kar.3255 (Manu/KA/0703/2013) M/s.Kothai Inter group Ltd. Vs. M/s Vinayaka Enterprises, the Hon'ble High Court of Karnataka has held that "When a person is inducted into the premises in consideration of the price to be paid or promised, that is monthly rent creates a jural relationship of lessor and lessee. Termination of such relationship is permissible only as envisaged under 21 O.S.No.26660/2010 Sec.106 of T.P.Act. A person having been inducted as a tenant would continue to be tenant and as envisaged under Sec.116 of T.P.Act, is estopped from contending other wise..." In a suit for possession based on tenancy basis, reported in AIR 2010 SC 2077 (Manu/SC/0240/2010) Karam Kapani and others Vs. Lalchand Public Charitable Trust, at para 20(c) the Hon'ble Apex Court has held that "It is pertinent to note that u/s.116 of T.P.Act, a tenant is estopped from denying the title of the lessor to the tenanted premises during the continuance of lease..". In a case reported in 2006(1) SCC 228 C.Albert Morris Vs. K.Chandrasekaran and others, the Hon'ble Apex Court has held that "once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice, the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting. The receipt of rent may only create a presumption and cannot by its own force amount to a waiver." In a case reported in 2006(4) SCC 205 Swaroop Singh Gupta V/s S.Jagadish and others, the Hon'ble Apex Court has held that "Mere fact that rent has been tendered and accepted after service of such notice of termination of lease and before initiation of eviction suit, cannot be determinative. There has to be other 22 O.S.No.26660/2010 evidence to prove or establish that the landlord intended such waive"
8. The learned counsel for the defendant has relied the following citations in favour of his arguments for the defendant.
1994(2) SCC 497 State of Maharastra V/s Athor India Ltd. AIR 1968 SC 496 Tolarave Relumal and another V/s The State of Bombay. 1996(6) SCC 373 S.K.Sattar, SK. K.Mohammed Chowdhuri V/s Gundappa Ambadas Bukate. 2004(2) SCC 712 FCI & others V/s Babulal Agarwal. AIR 2003 SC 578 B.L.Sreedhar and others Vs. K.M.Munireddy. AIR 1968 SC 438, Ms.S.Sanyal V/s Gian Chand. (1977) 4 SCC 324 M/s.Technicians Studio Private Ltd V/s Smt.Lila Ghosh and another. (1973) 1 SCC 273 M/s.Hindustan Steel Limited V/s Smt.Kalyani Banerjee and others 1987(2) SCC 555 Ramswarup Gupta (dead by LRs Vs. Bishun Narain inter college and others) and AIR 2015 Karnataka 128 M/s. Auto World, Bengaluru V/s Smt.K.V.Sathyavathi.
9. The Hon'ble Apex Court in a case reported in 1994(2) SCC 497 State of Maharastra case has held that "lease does not include 'agreement to lease' executable at a future date without immediately bringing into effect lessor-lessee relationship and actual demise. Therefore, 'agreement to lease' 23 O.S.No.26660/2010 not subject to stamp duty..." The Hon'ble Apex Court (Five Judges Bench) in a case reported in AIR 1954 SC 496 Tolarave Relumal and other Vs. The State of Bombay at para 6 has held that "an instrument is usually construed as a lease if it contains words of present demise. It is construed as an executing agreement, notwithstanding that it contains words at present demise. Where certain things have to be done by the lessor before the lease is granted, such as the completion or repair or improvement of the premises or by the lessee, such as obtaining sureties it amounted to an agreement to grant a lease in future..." In a case reported in 1987(2) SCC 555 Ramswarup Gupta (dead) by LRs V/s Bishun Narain inter college and others, the Hon'ble Apex Court has held that "pleadings need not contain the exact statutory language or expression in order to attract the statutory provisions. If plea relates to terms and conditions of an oral agreement, absence of written deed of the agreement not fatal to the plea as the terms can be gathered from the circumstances and conduct of the parties. The Hon'ble Apex Court has held that the parties by agreement can make licence irrevocable even if it is not covered by Clause (a) and (b), of Sec.60 of Easements Act, 1882. In a case reported in 1996(6) SCC 373 S.K.Sattar, SK. K.Mohammed Chowdhuri Vs. 24 O.S.No.26660/2010 Gundappa Ambadas Bukate, the Hon'ble Apex Court at para 37 has held that "a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he be sued for his part of the rent. The tenancy can not be split up either in estate or in rent or in any other obligation by unilateral act of one of the co-owners. If, however, all the co- owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that proper, they become separate individual ow2ners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor.." In a case reported in 2004(2) SCC 712 FCI & others Vs. Babulal Agarwal at para 7 it was held that "Even a monthly lease may last for more than a year and for any longer period. In the absence of lease deed or registered lease deed, the nature of the lease would be only be that a monthly lease.."
The Hon'ble Apex Court at paras 8 and 10 has further held that "agreement for securing another agreement or deed in future for the creation of the rights (lease in this case) in immovable property is not a document which compulsorily requires registration. It is an executory agreement by which no right in the property created prasenti. At para 7 the Apex Court has 25 O.S.No.26660/2010 further held that "According to which the parties had to execute a registered lease deed but the same was never done. We find that the High Court has rightly dealt with the question while holding that the plaintiff had not filed the suit for enforcement of agreement of lease. It was suit filed for damages for the breach of contract. It was not a suit for specific performance of the contract. A promise was definitely held out by the defendant to the appellant for occupying the premises for a period of three years at a given rate of rent. The premises were in fact constructed in accordance with the instructions and specifications of the defendant. Therefore, the Hon'ble Apex Court has held that "non execution of the contract in terms of Article 299 of the COI does not militate against the applicability of the doctrine of promissory estoppel against the Government. The proposition of liability of a party on backing out of a promise held out, after making the other party alter his position. In a case reported in AIR 2003 SC 578 B.L.Sreedhar and others Vs. K.M.Munireddy the Hon'ble Apex Court has held that "Though estoppel is described as a rule of evidence, it may have the effect of creating substantive rights as against the person estopped and that therefore it is capable of enforced or defended as against the person precluded from denying it..." The 3 Judges Bench of the 26 O.S.No.26660/2010 Hon'ble Apex Court in a case reported in AIR 1968 SC 438, Ms.S.Sanyal Vs. Gian Chand at para 3 and 6 has held that "The contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts - One of letting for residential purposes and the other for non-residential purposes, and to grant relief to the landlord under Sec.13(1)(e) of Delhi and Ajmer Rent Control Act limited to the portion of the demised property which is being used for residential purposes. The Hon'ble Apex Court in (1973) 1 SCC 273 M/s.Hindustan Steel Limited Vs. Smt.Kalyani Banerjee and others case has held that possession of lessee's land by A - lessee failing to conclusively prove original lessor's proprietory rights - whether A's possession can be disturbed in the circumstances. The Hon'ble High Court of Karnataka in a case reported in AIR 2015 Karnataka 128 (M/s.Auto World, Bengaluru Vs. Smt.K.V.Sathyavathi) has held that if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is in the absence of an agreement to the contrary, renewed from year to year, or from 27 O.S.No.26660/2010 month to month, according to the purpose for which the property is leased, as specified in Sec.106. The Hon'ble High Court has further held that earlier notice issued for termination of tenancy stood waived if the second notice of the tenancy is issued. In this case our Hon'ble High Court has relied on the judgment of the Federal Court in a case reported in AIR 1949 FC 124.
10. As per Sec.105 of T.P.Act, " a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms". The transferor is called the lessor, the transferee is called the lessee. The price is called the premium and the money, share, service or other thing to be so rendered is called the rent. Synopsis:- 9 of the said Section of the Transfer of Property Act, 1882 published by Choudhary publication during the year 1999 discloses that '' under the general law, if a lessee governed by the Transfer of Property Act, more often called a tenant, continues in possession of the lease-hold, after the tenancy is terminated, he may be called a 'tenant holding over', if the lessor or his legal 28 O.S.No.26660/2010 representative accepts rent from him or otherwise assents to his continuing in possession and he becomes a month to month tenant. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of Sec.116 of T.P.Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidence by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. On termination of lease, if the tenant's continuance is not by the assent of the lessor, he is merely a tenant at sufferance. The tenancy at sufferance is not a right at all. Continuance of possession of a tenant at sufferance though wrongful, such 29 O.S.No.26660/2010 possession by itself does not become adverse to the lessor. As per Sec.106 of T.P.Act, in the absence of a contract or local law or usage to contrary, a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month's notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by 15 days notice expiring with the end of month of the tenancy. Sec.107 of T.P.Act provides that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. All other lease of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Sec.109 of T.P.Act provides that if the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee in the absence of a contract to the contrary, shall possess all the rights, an if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part, transferred so long as he is the owner of it, but the lessor shall not by reason only of such transfer ceases to be 30 O.S.No.26660/2010 subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him provided that the transferee is not entitled to arrears to rent due before the transfer, and that, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased. Sec.111 of T.P.Act provides that a lease of immovable property determines (a) by efflux of the time limited thereby, (b) where such time is limited conditionally on the happening of some event - by the happening of such event, (c) where the interest of the lessor in the property terminates on or his power to dispose of the same extends only to, the happening of any event - by the happening of such event, (d) in case the interest of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right, (9e) by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual 31 O.S.No.26660/2010 agreement between them, (f) by implied surrender, (g) by forfeiture (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. Sec.112 of T.P.Act provides that a forfeiture under Sec.111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting provided that the lessor is aware that the forfeiture has been incurred, provided further, that where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver. Sec.113 of T.P.Act provides that a notice given under Sec.111, Clause (h) is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Synopsis to Sec.4 of 113 provides that on this question the majority view is that acceptance of rent during the pendency of suit for ejectment does not amount to waiver of eviction notice. If the ejectment suit is actively prosecuted mere acceptance of rent does not amount to waiver.
32 O.S.No.26660/2010
11. Perused the facts and circumstances of this case. Perused the plaint, WS, evidence placed before the Court. Perused the arguments urged by both the sides before this Court.
12. My answer to the aforesaid issues is as follows:-
Issue No.1 : As in the affirmative Issue No.2 : As in the affirmative Issue No. 3 : As partly in the affirmative Issue No.4 : As per final order for the following :-
REASONS
13. Issues No.1 & 2 :- These issues are inter linked with each other. Therefore, these issues are taken up together for joint discussion to avoid repetition of facts. It is the case of the plaintiff that defendant was tenant under him in respect of the suit C schedule property and that it has validly terminated the said tenancy and that therefore the defendant is entitled to a deliver vacant possession of the suit C schedule property to him. In the oral evidence of PW-1 and DW-1 that recorded during the course of their respective chief-examination, they have specifically reiterated their pleadings once again before this Court.
33 O.S.No.26660/2010
14. Ex P-1, the extract of the minutes of the board of directors of the plaintiff company dtd.03.12.2004, discloses that the plaintiff company has decided to initiate appropriate legal proceedings against the deft. Company for eviction and recovery of rent and future damages in respect of the suit C.Schedule property. The said document further discloses that 1. Mr.Arjun Menda M.D, 2. Raj Menda, Director & 3. Manoj Menda, the director the plaintiff company are the authorized persons to sign and to do all acts which are required in relation to the legal proceedings initiated or to be initiated from time to time. Ex.P-2, the copy of development agreement dt.3.5.2003 discloses that the plaintiff and Rani Rasamani constructions Pvt Ltd have entered into an agreement agreeing to jointly develop the suit A schedule property of this suit. The said document further discloses that the plaintiff and the Rani Rasamani constructions Pvt Ltd have agreed to share the saleable area in the buildings and the benefit of the development in the suit A and B schedule properties in the ratio of 73:27. Ex.P-4 the copy of sale deed dt.13.5.2004 discloses that the M/s Rani Rasamani Constructions Pvt Ltd. has sold 65644 sq. ft of undivided share, right, title and interest in a portion of the suit A schedule property to the plaintiff. Ex.P-5, copy of the letter dt.22.5.2003 addressed by the 34 O.S.No.26660/2010 defendant to the plaintiff discloses that the defendant company had expressed its intention to take 9,305 sq.ft of land also out of 1,12,405 sq.ft on rent and that therefore the defendant has requested the plaintiff company to its acceptance of the said proposal. Ex.P-6, letter dt.27.10.2003 issued by M/s.R.R.Constructions Ltd. to the Commissioner, BDA, Bengaluru discloses that it has requested the commissioner, BDA, Bengaluru for issuance of occupancy certificate in respect of the lands bearing Sy.No.18/1, 18/2, 18/5 of Kadubeesanahalli village, Bengaluru East taluk. The said document further discloses that construction of basement floor, ground floor + two upper floors has been completed as per the sanction plan in the aforesaid lands and that therefore M/s.R.R.Constructions Ltd. had requested the Commissioner, Bengaluru for issuance of the occupancy certificate at the earliest. Ex.P-7, copy of consent letter to take possession dt.23.3.2010 discloses that the BDA, Bengaluru was pleased to issue the said certificate in favour of M/s.R.R.Constructions Pvt. Ltd. to take the occupancy certificate in respect of the aforesaid lands of Kadubeesanahalli village. Ex.P-8, copy of the sale deed dt.2.4.2010 discloses that the plaintiff has purchased the suit C schedule property of this suit from the said M/s.R.R.Constructions Pvt.Ltd. Ex.P-9, notice 35 O.S.No.26660/2010 cum reply dt.27.1.2007 issued by M/s.R.R.Constructions Pvt. Ltd. to the defendant company's CEO Mr.Mohapatra. The said document discloses that M/s.R.R.Constructions has requested the defendant to deliver vacant possession of the suit C schedule property to it for non-compliance of terms of Ex P-3 agreement with a request for payment of rent dues, etc. The said document further discloses that the said M/s.R.R.Constructions Pvt. Ltd. has returned 6 cheques to the defendant. Ex.P-10, copy of r notice dated 20.7.2010 issued by the plaintiff's advocate to the defendant discloses that it has intimated purchase of suit C schedule property from the said M/s.R.R.Constructions Pvt Ltd on 2.4.2010 and that therefore it has terminated tenancy of the defendant in respect of suit C schedule property on expiry of 15 days from the date of receipt of the notice marked as Ex.P-10. The said document further discloses that the plaintiff has requested the defendant to quit and deliver vacant possession of the suit C schedule property with payment of arrears of rent or damages, etc. in respect of suit C schedule property. Ex.P-11, 4 postal receipts discloses that the plaintiff has sent the said notice to the defendant through registered post. Ex.P-12 four postal acknowledgements disclose that the notice issued as per Ex.P-10 has been duly served on the defendant on 21.7.2010. Ex.P-13, 36 O.S.No.26660/2010 reply notice dated 5.8.2010 issued to the counsel for the plaintiff by the defendant's counsel in response to the notice issued as per Ex P-10 discloses that the defendant has refused to quit and deliver vacant possession of the suit schedule property on the ground it has right to exercise its purchase option under the suit agreement. Ex.P-14 the CC of the lease deed dtd.31-03-2006 discloses that the plaintiff, Primal projects Pvt ltd and Accenture services Pvt ltd are all have entered in to the said document in respect of a portion of land measuring 27 Acres 15 guntas of Bellandur Village, Bengaluru East Tq. Ex P-15 copy of the letter dated 19-08-2011 of India bulls addressed to the plaintiff discloses that it had all title records of the suit schedule properties including Ex P-2 and 3 agreements.
15. Ex.D-1, CC true copy of the resolution passed by the Board of Directors of the defendant company at its meeting held on 8.5.2003 at plot No.34/1, Electronic city, Gurgaon discloses that the defendants have resolved that Mr.Manoj Kumar Vaish, s/o Hridyha Prakash Vaish is the authorized person to participate in this suit and other two suits pending before this Court to sign, execute, depose, submit and file all petitions, submissions, evidence, statements, affidavits, etc. before this Court. Ex.D-2, copy of the letter dated 13.9.2002 of the 37 O.S.No.26660/2010 defendant that is addressed to the plaintiff of this suit discloses that the defendant has issued the Letter of intent to the plaintiff to obtain all approval, clearance, no objection certificate for use of the land for IT industry, for measuring the land by metes and bounds in the presence of the defendant and its satisfaction, for satisfying the defendant that no dues or charges are pending with respect to the land, or for completion such as satisfaction of the defendant as to title and approvals of all concerned authorities with respect to the land, etc. Ex.D-2, Copy of e-mail letter issued by Ram Chandnani to Ashish Mehrotra discloses that if the land is not registered after the 1st 250,000 sq.ft of built up area, RMZ are willing to reduce the rentals by 50%. The payment of security deposit is as follows : 50% on land being cleared. 10% when structure is complete 40$ on position of building, time-lines, commence construction by 15th Feb, OC to be obtained by 30th June. HSS could have the facility in May for fitouts and move in by July 15th. Service areas: HSS need to confirm on Monday on the rentals and if would like to change from basement to ground floor. Performance guarantee: If the building was not ready in the agreed time frames what penalty would be levied on RMZ. HSS to discuss and revert. No rent for terrace on the cafeteria. Ex.D-3, is the letter addressed by the 38 O.S.No.26660/2010 counsel S.Basavaraj to one Manoj discloses that the said S.Basavaraju would like to move on with the signing of the lease agreement. The said letter discloses that the plans are ready for sanction by the BDA, if amendment is not proposed. The said letter discloses that the purchase option for the defendant will be after a period of 2 years and within the first term of lease of 4 years. Ex.D-4, copy of another e-mail that is addressed to Tejasvi.N. Ex.D-5 to 22 are the letters addressed between plaintiff and the defendant in respect of fixing fitouts to the bare shell building that is obtained by the defendant on 15.11.2003. Ex.D-23 is the copy of the order sheet dt.3.11.2009 passed in W.P.9040/2005 (LA-KIADB) c/w. WP Nos.9041/2005 to 9043/2005 (LA-KIADB). The said document discloses that the Hon'ble High Court of Karnataka was allowed the said writ petitions and that the final notification dated 7.9.2004 has been set aside. The petitioners/land owners shall appear before the Land Acquisition Officer on 23.11.2009 at 3 pm and file their objections if any. The said document further discloses that the LAO shall provide a fair and reasonable opportunity to the petitioners to have their say in the matter and consider the objections to be filed by them in accordance with law. The said 39 O.S.No.26660/2010 writ petitions are filed challenging the acquisition proceedings in respect of the afore stated lands of Kadubeesnahalli village.
16. Ex P-3 is the main document. As per Clause 1.1 of Ex.P-3, the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd are agreed that the phase-1 development will be constructed on or before 30.10.2003 strictly in accordance with the sanctioned plans and in compliance with all laws, statutes, ordinances, administrative orders or Governmental rules, regulations and requirements of any duly constituted public authority having jurisdiction. Clause 2 of the said agreement provides that the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd are agreed to deliver vacant and physical possession of the Phase- 1 development to the defendant on or before 30.10.2003 and that the lease for Phase-1 development shall commence from 30.10.2003. As per Clause 2.1 of Ex.P-3 initial lease of the suit B schedule property is for a term of 5 years from 30.10.2003 with a sole and exclusive option to the defendant to renew the same for a further term of 5 years immediately following the initial 5 year term on the same terms and conditions stated in the said document. The said Clause further discloses that if delay in delivery of completed Phase-1 development on or before 30.10.2003, the commencement date shall commence on such 40 O.S.No.26660/2010 other date as the defendant may at its option, accept the vacant and physical possession of the completed Phase-1 development and accordingly the ensuing 5 year lease term shall be computed for such new date without prejudice to any of its other rights. The said Clause further discloses that during the entire term of the said lease, the defendant shall have the exclusive use and enjoyment of the remaining land in suit schedule property duly landscaped as per defendant's requirements. Clause 2.3 provides that the defendant shall deposit at the time of execution of the lease deed with the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd an interest free security deposit equivalent to fifteen months rent, refundable at the expiry of the lease or on it's sooner determination. Clause 2.4 of Ex.P-3 provides that there shall be a lock-in period of first 4 years of the lease term, during which time plaintiff shall not terminate the said lease. The said lock in term for 4 years shall not apply in the event defendant elects to exercise its option to purchase as per the terms of the said contract. The defendant may at its option terminate the lease at any time after the lock-in time by giving 3 months notice in writing. Clause 3.1 (b) of Ex.P-3 agreement provides that the defendant and M/s Rani Rasamani Constructions Pvt Ltd are agreed and undertaken to obtain 41 O.S.No.26660/2010 conversion of 1 acre 27 guntas in land No.20/3 from agriculture to non-agricultural purposes and permission for conversion from residential to industrial software purpose before commencement of the lease. Clause 3.1(b) provides that change of land use from residential to industrial software purpose shall be made within a period of 1 ½ years from the date of commencement of lease. Clause 4 of Ex.P-3 agreement provides that the defendant shall deposit with the 1st defendant a sum of Rs.30, 00,000/- at the time of signing on Ex.P-3 document. Clause 4.2 of the said agreement provides that the said Rs.30,00,000/- shall be applied towards part of the security deposit payable by the defendant as provided under Clause 2.3. Clause 4.3 of Ex.P-3 provides that the defendant shall pay the balance amount of the security deposit at the time of commencement of the lease. Clause 5 of the said agreement provides that if the lease of the suit B schedule property does not commence on 30.10.2003 on account of failure of the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd to complete phase- 1 development or to obtain the occupancy certificate, the plaintiff may at its sole and exclusive option to terminate the agreement by way of issuing notice in writing and on 42 O.S.No.26660/2010 such termination, the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd shall refund to the defendant all monies received under the Ex.P-3 agreement together with interest at the rate of 24% p.a. As per Clause 5. 2 to 4 if the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd fail to obtain conversion in respect of 1 acre 27 guntas of land comprising Sy.No.20/3 and vesting of the title, change of land use within time stipulated in Clause 3.1(a) & (b) before commencement of the lease, payment of the rent, the security deposit amount and the price payable in respect of 1 acre 27 guntas of land in Sy. N0. 20/3 that is payable by the defendant shall stand reduced by 50% until the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd shall obtain the conversion of the land in Sy.No.20/3. Clause 12 of Ex.P-3 provides that upon completion of Phase-1 development, the plaintiff, M/s Rani Rasamani Constructions Pvt Ltd and the defendant are agreed to execute and register at the cost of the defendant, a Deed of lease in favour of the defendant in the form Annexure- 6 and on the terms and conditions set out therein and that the lease deed format shall not be altered or modified except by mutual consent. Clause 15 of Ex.P-3 43 O.S.No.26660/2010 provides that without prejudice to the lease arrangements as mentioned above and in consideration of the defendant agreeing to take Phase-1 development on lease, the defendant shall also have the option and right to purchase the suit A schedule property with the buildings and improvements free and clear of all lien, charges and encumbrances at the price agreed therein. This sole and exclusive option to purchase shall remain valid and exercisable from the 2nd anniversary of the lease up to and inclusive of the 6th anniversary day. Clause 15.1 of the said agreement provides that the purchase option may be exercised by the defendant by giving written notice to the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd of its intention to exercise its option and specify in the said notice the date and time when the sale price collected will be tendered to them. In that event, the defendant decides to exercise the purchase option, the price payable for free and clear title to suit A schedule property and Phase-1 development shall be collected (a) or the land at the rate of 270/- per sq.ft with increase at 12% for the building excluding service area including plinth area at the rate of 1.627.50 per sq.ft and for the service area situated in the basement of A block at the rate of Rs.545.50 per sq.ft. Clause 15.2 provides that if the 44 O.S.No.26660/2010 purchase option is exercised after any further construction of the buildings on the remaining land in the A schedule property, the rates for the building is Rs.1100/- per sq.ft and Rs.220/- for phase I development and Rs.37.50 sq.ft. for additional development and the same be divided through mutual consent between the plaintiff , M/s Rani Rasamani Constructions Pvt Ltd and the defendant and if they failed to mutually agreed, then the increase payable for development shall be determined by the Indian Project management expert C.B.Richard Ellis South Asia private limited. Clause 15.3 provides that sale price calculated as option shall be reduced by the security deposit due to plaintiff and M/s Rani Rasamani Constructions Pvt Ltd under the lease deed and the sum total holding cost received by plaintiff and M/s Rani Rasamani Constructions Pvt Ltd as per Clause 15.4 of the Agreement. Clause 15.4 of the suit agreement provides that "in consideration of the purchase option to the defendant, the defendant shall pay each month to the M/s Rani Rasamani Constructions Pvt Ltd holding cost of Rs.2,16,000/- until defendant exercises the purchase option or until the expiry of 6 years whichever is earlier unless before the expiry of 6 years, the defendant shall have decided not to exercise the purchase option in which event the obligation to pay the holding cost shall cease 45 O.S.No.26660/2010 from such date as the defendant shall communicate in writing to the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd its decision not to exercise the purchase option". In the event the defendant exercising the purchase option, the holding cost paid by the plaintiffs to plaintiff and M/s Rani Rasamani Constructions Pvt Ltd until the exercise of the purchase option shall be set off towards a part of the sale price. In the event of defendant not exercising purchase option, the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd shall after expiry of the above 6 years period, the Phase-I development and remaining land in such manner as they may deem it fit and the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd shall be entitled to retain the entire amount received by them towards holding cost till then and shall be under no obligation to refund any portion of the same to the defendant. Clause 15.5 provides that the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd shall execute one or more Deed or Deeds of sale conveying the schedule A property with Phase I development and all other developments and improvements to the defendant or any of its nominee or nominees and admit execution of the Deed or Deeds of sale before the registration authorities. Upon the execution and registration of the Deed of sale, the lease of Phase I 46 O.S.No.26660/2010 development shall determine absolutely and Hughes obligation to pay the rent shall cease. As per Clause 15.6 the defendant shall have all the rights to enforce specific performance of the purchase option in a Court of law of appropriate jurisdiction and if the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd fail or neglect to perform their obligations under the plaintiff's purchase option. Clause 17 of Ex.P-3 provides that subject to the survival clause 18 below, unless terminated earlier by the defendant, this Agreement shall remain in force from the date of its execution until (i) construction of Phase I development is completed, (ii) possession of Phase I is handed over to plaintiff as per the terms of this Agreement, (iii) the commencement of the lease and the execution and registration of the lease deed and (iv) If defendant issues a written notice of termination, until return to defendant of the funds pursuant to clause 5. Clause 18 of the said agreement provides that Clauses 5, 4, 15, 15.1, 15.2, 15.3, 15.4, 15.5, 15.6, 15.7, 16, 16.1, 21 and 22 shall survive the execution of the lease deed by the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd in favour of defendant until the expiry of original term of the lease and the first one year of the renewed term or the exercise by defendant of its purchase option and consequent execution and registration of the Deed of sale in favour of defendant 47 O.S.No.26660/2010 whichever is earlier. Clause 19 provides notwithstanding the foregoing, all representations, warranties and indemnifications made by the defendants in Ex.P-3 shall survive the termination of the suit Agreement.
17. About his readiness and willingness about the terms of Ex P-3, the D.W.1, during the course of his cross-examination, has deposed as under :-
"£ÁªÀÅ zÁªÉ ¸ÀévÀÄÛ ¸Áé¢üãÀ ¥ÀqÉAiÀÄĪÀ ¥ÀǪÀðzÀ°è ªÁ¢UÉ £ÉÆAzÁ¬ÄvÀ °Ã¸ï rÃqï §gÉzÀÄ PÉÆqÀÄ JAzÀÄ MvÁ۬ĹzÉÝêÉ. £ÁªÀÅ ¸Áé¢üãÀ ¥ÀqÉAiÀÄĪÀ ¥ÀǪÀðzÀ°è £ÉÆAzÁ¬ÄvÀ rÃqï ªÀiÁqÀĪÀÅzÀÄ condition precedent DVvÀÄÛ. ¤¦.3 gÀ°èAiÀÄ PÁèeï £ÀA§gÀÄ 5 ªÀÄvÀÄÛ 5.01gÀ°è PÁtô¹zÀ £ÀªÀÄä ºÀPÀÄÌUÀ¼À£ÀÄß £ÁªÀÅ dÁjUÉƼÀ¹®è .."
The Dw-1 has deposed as under :
"¢£ÁAPÀB A.15-11-2003 gÀAzÀÄ zÁªÉ ¸ÀéwÛ£À
¸Áé¢Ã£ÀªÀ£ÀÄß £ÁªÀÅ ¥ÀqÉ¢zÉÝÃªÉ JAzÀgÉ ¤d. CzÉÃ
¢£ÁAPÀ¢AzÀ £ÁªÀÅ zÁªÉ ¸ÀéwÛUÉ ¨ÁrUÉ PÉÆqÀ®Ä M¦àzÉݪÀÅ. £ÁªÀÅ ¸Áé¢Ã£À ¥ÀqÉAiÀÄĪÀ ¥ÀÅiÀÁªÀðzÀ°è £ÉÆÃAzÁ¬ÄvÀ rÃqï ªÀiÁqÀĪÀÅzÀÄ PÀArõÀ£ï ¦æ¹qÉAmï DVvÀÄÛ..."
48 O.S.No.26660/2010The Dw-1 has further deposed as under :
"¢B 15-11-2003 gÀ ¥ÀǪÀðzÀ°è £ÁªÉãÀÆ ªÁ¢ ªÀÄvÀÄÛ DgïDgïE gÀªÀjUÉ °Ã¸ï rÃqïUÉ ¸À» ªÀiÁrPÉÆr JAzÀÄ PÉüÀ°®è. DPÀÄÌ¥É¤ì ¸Ànð¦PÉÃmï ºÁdgÀÄ ¥Àr¸ÀzÉ EzÀÄÝzÀjAzÀ £ÁªÀÅ °Ã¸ï rÃqï §gÉzÀÄPÉÆqÀĪÀÅ¢®è JAzÀÄ ªÁ¢UÁUÀ° CxÀªÁ DgïDgïE EªÀjUÁUÀ°Ã ¢£ÁAPÀB 15-11-2003 gÀ ¥ÀǪÀðzÀ°è £ÁªÉãÀÆ °TvÀªÁV DUÀ°Ã, FªÉÄÃ¯ï ¸ÀAzÉñÀzÀ ªÀÄÆ®PÀªÁUÀ°Ã w½¹®è. ªÁ¢ K£ÀÄ £ÀªÀÄUÉ zÁªÉ ¸ÀéwÛ£À ¸Áé¢Ã£ÀªÀ£ÀÄß ¢£ÁAPÀB 15-11-2003 gÀAzÀÄ vÉUÉzÀÄPÉƽî JAzÀÄ PÀA¥É¯ï ªÀiÁr®è..."
The DW-1 has further deposed as under :
"We took the possession of the suit schedule property as a bear shall on 15-11-2013. I also agree that it should be given as bear shall. I agree that we are supposed to fit out the premises to make it usable.
As per Ex P-3 we had an option to take out all the fit outs with us if lease is terminated. Cafeteria constructed by us is a temporary structure. In the 49 O.S.No.26660/2010 month of Sept 2004 we sought for modification of the some of the terms of the draft lease deed..."
The D.W.1 has further deposed as under:-
"I was aware of the fact that holding costs should be paid before exercising purchase option.
After filing O.S.16735/2005, we have taken necessary action to get the lease deed executed. We did not file any suit against the defendants to get the lease deed executed. It is true that a part of schedule A property shown in this plaint was acquired by KIADB".
18. About performance of his obligation under Ex P-3, the P.W.1 has deposed as under :-
"µÉqÀÆå¯ï © LlA £ÀA§gï 1 ¸ÀévÀÄÛ 1 JPÀgÉ 27 UÀÄAmÉUÉ gÁtô gÀ¸ÀªÀÄtô EªÀgÀÄ EA¢£ÀªÀgÉUÀÄ ªÀiÁ°ÃPÀvÀé ºÉÆA¢®è JAzÀgÉ ¤d. F ªÀgÉUÀÆ © ¥ÉëqÀÄå¯ï£À LlA £ÀA§gï 1 ªÀÄvÀÄÛ 2 ¸ÀévÀÄÛUÀ¼À£ÀÄß gÁtô g¸Àª À ÀÄtô EªÀgÀÄ PÀæAiÀĪÀiÁr PÉÆAr®è JAzÀgÉ ¤d. F ªÀgÉUÀÆ ¥ÀæwªÁ¢AiÀÄ ¥Àgª À ÁV £ÁªÀÅ £ÉÆAzÁ¬ÄvÀ °Ã¸ï CVæªÉÄAmï §gÉzÀÄ PÉÆlÖ®è JAzÀgÉ ¤d. gÁtô gÀ¸ÀªÀĤ EªÀgÀÄ 1 JPÀgÉ 27 UÀÄAmÉ d«ÄãÀÄ RjâªÀiÁrPÉÆAqÀÄ ¨ÀsÆ ¥ÀjªÀvÀð£É ªÀiÁrzÀ £ÀAvÀgÀ °Ã¸ï CªÀ¢ ¥ÁægÀA¨Às DUÀ®Ä PÀgÁgÀÄ EvÀÄÛ JAzÀgÉ 50 O.S.No.26660/2010 ¤d. PÁèeï £ÀA.17.3 ¥ÀæPÁgÀ ¸ÀzÀj PÀgÁgÀÄ ¥ÀvÀæ ¥ÀæPÁgÀ PÀlÖqÀªÀ£ÀÄß ¸ÀA¥ÀÇtð PÀnÖ ¸Áé¢üãÀ PÉÆlÄÖ °Ã¸ï rÃqï £ÉÆAzÀtô ªÀiÁqÀĪÀªgÀ ÉUÀÆ ¤¦.3 G¨ÀsAiÀiÁ¥ÀgÀ ªÀÄzÀsåzÀ°è eÁjAiÀÄ°è EgÀvÀPÀÌzÀÄÝ JAzÀÄ PÁtô¹zÉ JAzÀgÉ ¤d. PÁèeï £ÀA. 18gÀ ¥ÀæPÁgÀ CzÀgÀ°è PÁtô¹zÀ G½zÀ PÁèeïUÀ¼ÀÄ °Ã¸ï rÃzï £ÉÆAzÀtôAiÀiÁzÀ £ÀAvÀgÀ CxÀªÀ ¤¦.3 gÀgÁÝzgÀ ÀÄ ¸ÀºÀ CªÀÅ ¸ÀvÀvÀ eÁjAiÀÄ°ègÀÄvÀÛzÉ JAzÀÄ PÁtô¹zÉ JAzÀgÉ ¤d. DzÉ® PÁèeï £À°è ¥ÀæwªÁ¢ purchase option £ÀÄß eÁjUÉƽ¼ÀĪÀªgÀ ÉUÀÆ ªÀÄvÀÄÛ PÀæAiÀÄ¥ÀvÀæ £ÉÆAzÀtô ªÀiÁr¹PÉƼÀÄîªÀªgÀ ÉUÀÆ AiÀiÁªÀÅzÀÄ ªÉÆzÀ¯ÉÆ C°èAiÀĪÀgÉUÉ ¤¦.3 eÁjAiÀÄ°ègÀÄvÀÛzÉ JAzÀgÉ ¤d. PÁèeï £ÀA.15 gÀ°è ¥ÀæwªÁ¢ °Ã¸ï rÃqï£ÀÄß £ÉÆAzÁ¬Ä¹zÀ £ÀAvÀgÀªÉà purchase option exercise ªÀiÁqÀ¨ÉÃPÉAzÀÄ PÁtô¹®è..."
The P.W.1 has specifically further deposed as under:-
"In Clause 15.4 there is no specific word pre condition is used for payment of holding costs before exercising purchase option. He also has deposed that there is no specific clause in Ex.P-3 that non payment of holding costs would frustrate the contract and it would constitute breach of contract." 51 O.S.No.26660/2010
19. From the aforesaid evidence and contents of Ex.P-3 or Clause 12 of suit agreement, it is clear that the plaintiff, M/s Rani Rasamani Constructions Pvt Ltd and the defendant are agreed to execute and register lease deed at the cost of the defendant in favour of the defendant upon completion of Phase-I development in the form attached as Annexure VI. As per Clause 15 of suit agreement, it is clear that the defendant has sole and exclusive option to purchase the suit A schedule property with the buildings and improvements free and clear of all liens charges and encumbrances at the price agreed and that the said option to purchase shall remain valid and exercisable on and from the 2nd anniversary of lease upto and inclusive of the 6th anniversary day thereof. It is clear that as per Clause-15 first part, exercising of purchase option is without prejudice to the lease arrangement as stated in Clause 2.1 and 2.2 of the suit agreement. As per Clause 15.4, in consideration of the purchase option, the defendant shall pay each month to the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd a holding cost of Rs.2,16,000-00 per month until the defendant exercises the purchase option or until the expiry of six years whichever is earlier unless before expiry of six years. If the defendant shall have decided not to exercise the purchase option, in which the obligation to pay the 52 O.S.No.26660/2010 holding cost shall cease from such date as the defendant shall communicate it in writing to the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd its decision not to exercise the purchase option. Clauses 5.4, 15, 15.1 to 15.7 shall survive the execution of the lease deed by the plaintiff and M/s Rani Rasamani Constructions Pvt Ltd in favour of the defendant until the expiry of original term of the lease and the first one year of the renewed term on the defendant exercises its purchase option and consequent execution and registration of the deed of sale in favour of the defendant whichever is earlier.
20. Admittedly the plaintiff and the M/s Rani Rasamani Constructions Pvt Ltd have not signed on the lease deed duly signed on behalf of them that sent to them for their signatures. But, the evidence of the DW-1 that recorded during the course of his cross-examination disclose that the plaintiff has not requested the defendants to sign on the lease deed prior to 15-11-2003 since they have not obtained the occupancy certificate. Page 18 of cross-examination of the DW-1discloses that in the month of September 2004, the defendant has sought for modification of some the terms of the draft lease deed. Therefore, it is clear that the suit agreement shall remain in force from the date of its execution i.e. From 21.5.2003 till the commencement of the 53 O.S.No.26660/2010 lease and execution and registration of the sale deed or if the defendant issues a written notification of termination or until return to defendant of the funds pursuant to Clause 5.
21. Admittedly no lease deed is executed till this date. Therefore, it is clear that lease of 5 yrs is not yet commenced as per terms of suit agreement. The exercise of defendant's option to purchase the suit A schedule property is subject to taking the suit B schedule property on lease for the periods as mentioned in the suit agreement subject to strict compliance of Clause 15.4 of the suit agreement and payment of admitted rent amount to the plaintiff and RRCL every month. As stated supra, it is admitted by the P.W.1 during his cross-examination that payment of holding cost is not a condition precedent to exercise defendant's option to purchase suit A schedule property. But, Clause 15.4 mandates that the defendant shall pay holding cost of Rs.2,16, 000/- per month until the defendant exercises its option to purchase the suit A schedule property or until expiry of six years which ever is earlier or unless before the expiry of six years till the day when the defendant shall communicate in writing its decision not to exercise its purchase option. This fact is not disputed by the defendant. Admittedly, the defendant has paid only Rs.30, 00,000/- to the plaintiff and RRCL on 19.5.2003 54 O.S.No.26660/2010 towards part payment of security deposit. The said amount is not paid towards part sale consideration amount or towards holding cost. It is not a disputed fact that the plaintiff has filed this suit during the year 2005 for eviction of the defendant from the suit B schedule property alleging that the he has not been paid/paying admitted rent amount every month to the plaintiff. Admittedly, the defendant has not paid rent dues amount and balance security deposit amount to the plaintiff from 15.11.2003 till 2.11.2006, 2.1.2007, 15.1.2007 and 19.10.2006. The cheques sent to the plaintiff on the aforesaid dates have been returned to the defendant. The defendant has not deposited the sale consideration amount of Rs.23, 25,29,598/- in spite of its obtaining permission of this Court to deposit the same before this Court. Admittedly, the plaintiff has not paid the holding cost amount of Rs.2, 16, 000/- every month from 15.11.2003 till 2.11.2006, 2.1.2007, 15.1.2007 and 19.10.2006 i.e., before exercise of its purchase option. It may be true that the plaintiff has invested more than 25 crores of rupees to have suitable infrastructure for its convenience to run a software company. Admittedly, the plaintiff agreed to take bare-shell building only on lease. Therefore, expenditure of 25 crores of rupees and 55 O.S.No.26660/2010 construction canteen cannot be accepted that the plaintiff has done something in part performance of the suit agreement.
22. Possession of the suit schedule property was not delivered to the plaintiff towards part performance of its exercise of purchase option. It is admitted that it should be given first on registered lease basis. Evidence of DW-1 recorded during his cross-examination discloses that the plaintiff and RRCL have not forced the defendant to obtain possession of the suit B schedule property on 15-11-2003. Oral evidence of P.W.1 that payment of holding cost before exercising defendant's purchase option is not a condition precedent can be excluded in view of Sec.92 of the Indian Evidence Act, 1872 since admittedly Clause 15.4 of suit agreement provides that the plaintiff shall pay holding cost of Rs.2, 16,000/- per month to the defendants in addition to payment of agreed rent per month till he exercises his purchase option. Payment of the same every month to the defendants is mandatory because the word 'shall' is existed therein. In addition to that, the defendant shall also have to obtain the suit B schedule property on lease for a period of 5 years from 15-11- 2003.
23. In view of the fact that the plaintiff has failed to pay holding cost and admitted rent every month to the defendants 56 O.S.No.26660/2010 from 15.11.2003 till 10.1.2005 the date of termination or till 15- 01-2007 the date of plaintiffs decision to exercise its purchase option as well as defendant's failure to take the suit B schedule property on lease for a period of 5 years from 30-10-2003 or 15- 11-2003, I am of the view that it is clear that the defendant is not ready and willing to perform his part of contract from 15.11.2003 till 15.1.2007. It appears that the defendant has decided to exercise its purchase option after lapse of nearly two years from the date when the plaintiff has instituted the suit for eviction during the year 2005. It is clear that the defendant may not exercise its option to purchase the suit A schedule property or he may not wanted to pay admitted rent and holding cost every month to the plaintiff and RRCL if the plaintiff was not instituted a suit for eviction during the year 2005. It may be that there was some delay in obtaining occupancy certificate etc. by the plaintiff and RRCL. But, the same shall not defeat the defendant's obligation to pay holding cost and admitted rent every month from 15-11-2003 since he occupied the suit B schedule property even without obtaining the registered lease deed or without any demand from the plaintiff and RRCL to obtain possession of the suit B schedule property on 15-11-2003. Why the defendant has taken possession of the suit B schedule 57 O.S.No.26660/2010 property on 15-11-2003 from the plaintiff and RRCL without obtaining the registered lease deed from them is not properly explained either in the written statement or in the evidence of DW-1. If the plaintiff and RRCL failed to execute and register lease deed, why the plaintiff has not taken any action as per law against them to have the lease deed executed and registered in its favour or to terminate the suit agreement marked as per Ex P-3 as per law before taking possession of the suit B schedule property is also not properly explained either in the pleadings or in the evidence of DW.1. Therefore, it appears that the defendant was happy to continue in the said property as tenant from month to month.
24. As per the decisions of the Hon'ble Apex Court in the reported cases in K.Simratulla's case, Pichimuthu's case, Bismillah Begum's case and as per recitals of page 49 of Pollock & Mulla on the Indian Contract & Specific Relief Acts, 14th edition 2012, the exercise of purchase option is subject to fulfillment of certain conditions by the purchaser, the agreement would be in effect be an option to purchase, as the right to purchase would only accrue upon voluntary performance of the conditions specified by the owner. The conditions entitling the option holder to exercise the option must be strictly fulfilled. Therefore, it cannot be 58 O.S.No.26660/2010 accepted that the defendant is/was always or ever ready and willing to perform his part of the obligations under the suit agreement. Though it is not specifically mentioned that the suit agreement would be frustrated, if holding cost is not paid, but in view of plaintiff's failure to fulfill the conditions specified therein i.e. payment of holding cost, rent, balance security deposits, etc. the suit agreement becomes frustrated or lapsed.
25. Afore stated evidence of the DW-1 placed before the Court itself discloses that the defendant was not serious in getting the registered lease deed. Admittedly till filing of this suit, the defendant has not taken any legal steps against the plaintiff and RRCL to obtain the registered lease deed in its favour. It may be that the terms of Ex P-3 shall survive until execution of the registered lease or sale deed. But, as stated supra as per section 107 of the T.P.Act 1882, for creation of a lease of immovable property for a period exceeding one year, execution and registration of an instrument is must. As per the said section, it is further clear that all other lease of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
59 O.S.No.26660/2010
26. Originally the entire Suit B schedule was given to the defendant on lease by the plaintiff and RRCL on 15-11-2003. Admittedly, the suit C schedule property is the 27% share of RRCL under the Ex P-2 agreement. As per Ex P-8 sale deed the said RRCL had sold the suit C schedule property to the plaintiff on 02-04-2010. Admittedly the defendant has accepted that originally the plaintiff and the said RRCL are the lessors of the suit B schedule property. Suit C schedule property is a portion of the suit B schedule property. Therefore, it is clear that the defendant is a tenant of month to month under the plaintiff in respect of the suit C schedule property from 02-04-2010 in view of Section 109 of T.P.Act. Therefore, it is clear that said tenancy of the defendant in the suit schedule property can be terminable on issuance of notice by the plaintiff in view of section 106 of T.P.Act. It is not in dispute that the plaintiff has issued notice on 20-07-2010 as per Ex P-10 terminating the said tenancy of the defendant with lapse of 15 days from the date of receipt of the said notice. The said notice duly served to the defendant. The defendant has not complied the terms of the said notice within 15 days or thereafter. Therefore, it is clear that the said tenancy of the defendant is a validly terminated in view of section 106 of T.P.Act. The said 27% share is clearly demarcated and that it 60 O.S.No.26660/2010 was shown in the yellow colour in the sketches annexed to the suit agreement Ex P-3. The said yellow coloured portion is the suit C schedule property and that it is the share of RRCL. Portion marked in blue colour is the 73% of plaintiff's share. Therefore, contention of the defendant that tenacny shall not be split up cannot be accepted. The defendant as a lessee from month to month under the plaintiff is estopped from denying the plaintiff's title over the suit C schedule property. The defendant has not proved that the plaintiff has an intention to continue his month to month tenancy. The plaintiff has seriously contesting the suit. Therefore, mere acceptance of rent dues during pendency of the suit is not amounts to a waiver of notice dated 20-07-2010. The defendant has contended that as per terms of the suit agreement, the plaintiff has no option to terminate the said tenancy at any cost. But, the T.P. Act has not provides to impose such restriction on the lessor in respect of lease of immovable property other than agricultural purpose. Therefore, the said contention of the defendant cannot be sustained. Therefore, the plaintiff is entitled to recover possession of the suit C schedule property from the defendant. Therefore, no grounds to accept the evidence of DW-1and the arguments urged in this regard that the tenancy is contractual for a period of five years and that the 61 O.S.No.26660/2010 said tenancy has not been validly terminated. No grounds to reject the evidence of PW-1 and the arguments urged in this regard on behalf of the plaintiff. Therefore, I answered the Issues No.1 and 2 as in the affirmative.
27. Issue No.3 :- It is the case of the plaintiff that the defendant is liable to pay damages/mense profits of Rs 57, 63, 700/- for unlawful use and occupation of the suit C schedule property from 02-04-2010 till 30-09-2010 the date of filing this suit. It is also the case of the plaintiff that he is entitled claim damages/mense profits at the rate of Rs 30/ per sq.ft per month for built up area and Rs 10/- per month per square feet for service area with interest at 24% for unlawful use and occupation of the suit C schedule property from 01-10-2010 till the date of handing over possession of the suit C schedule property. The plaintiff in the plaint at para 21 has claimed Rs.53,85,987/- towards damages/mense profits for use and occupation of the suit C schedule property from 02-04-2010 till the date of suit at the rate of Rs 30/- per sq.ft in respect of built of area of 29710 sq. ft of built up area and R s 10/- per sq.ft in respect of 640 sq.ft of service area. He also has claimed Rs 3, 77,746.35/- towards interest at 24% p.a from 02-04-2010. I have carefully gone through the suit C schedule property. Suit C 62 O.S.No.26660/2010 schedule property contains 640 sq.ft of service area. The suit C schedule property consists of 29710 sq.ft built up area in the constructed building on the ground, first and second floor of the blocks known as A, B & C.
28. As stated supra, the defendant has failed to prove that he is ready and willing to perform his part of contract. Therefore, it is clear that the defendant's right to exercise purchase option has been lost. The defendant also has failed to obtain the suit B schedule property that includes the suit C schedule property on 5 years lease as proposed in the suit agreement marked at Ex.P-3. As stated supra, the said tenancy of the defendant has been terminated by way of giving 15 days notice on 20.07.2010. The said notice has been duly served on the defendant. Therefore, it is clear that month to month tenancy of the defendant in respect of suit C schedule property is ended.
29. It is not in dispute that as per Clause 2.2 of the suit agreement, the plaintiff and the defendant are agreed that the rent per sq.feet for building is Rs.18/- per month and that rent per sq.feet for service area is Rs.6/- per month. Suit agreement didn't provides for payment of rent per sq.feet for building at Rs.30/- per month and that rent per sq.feet for service area is 63 O.S.No.26660/2010 Rs.10/- per month. Admittedly the defendant has not paid the said rent till filing of this suit. He has only paid Rs.30, 00, 000/- as interest free security deposit amount. Therefore, I am of the view that the defendant is liable to pay the admitted rent to the plaintiff per month in respect of use and occupation of the suit C schedule property from 02-04-2010 as damages/mense profits. The defendant has contended that the plaintiff has not obtained occupancy certificate and that he had not executed the lease deed in his favour. Therefore, he has contended that he is entitled to pay only 50% of the admitted rent to the plaintiff in view of non fulfillment of Clauses 3 a and b of the suit agreement. As stated supra, the defendant had obtained possession of the suit schedule property voluntarily without the force or compulsion from the plaintiff or RRCL. It is also clear that the defendant has agreed to take bare shell building only on lease. The defendant was at liberty to terminate the suit agreement if the plaintiff and RRCL have not complied Clauses 3 a and b of the suit agreement. In spite of that, the defendant has not done so, but he obtained possession of the suit schedule property voluntarily on 15.11.2003. Therefore, I am of the view that the defendant is not entitled to claim that he is liable to pay 64 O.S.No.26660/2010 only 50% of the rent out of admitted rent of Rs.18/- per sq.ft for the building area.
30. The rent per month in respect of the built up area of 29710 sq.ft out of suit C schedule property at the admitted rate at Rs.18/- per sq.ft amounts to Rs.05, 34,780/- per month. The rent per month in respect of the service area of 640 sq.ft out of suit C schedule property at the admitted rate at Rs.6/- per sq.ft amounts to Rs.3480/- per month. Total rent per month is Rs 5,38,260/-. In respect of the entire suit C schedule property, total rent amount for 05 months 28 days i.e., for the period from 02- 04-2010 to 30-09-2010 is Rs 31,93,676. Thus, the defendant is liable to pay total sum of Rs 31,93, 676/- to the plaintiff towards damages/mense profits for the period from 02-4-2010 till 30-09- 2010.
31. After termination of the said tenancy of month to month, the defendant has been in continuous possession and enjoyment of the suit schedule property. He has been getting crores of income from his Software business. Therefore, I am of the view that the defendant is liable to pay future damages/mense profits at the rate of Rs 5,38,260/- per month from 1.10.2010 till he is evicted from the suit C schedule property. I have carefully gone through the suit agreement 65 O.S.No.26660/2010 marked at Ex.P-3. Nowhere in the said document it is provided that the defendant shall pay interest at the rate of 24% p.a. to the plaintiff in respect of the arrears of rent. No agreement entered into between the parties to the suit that the defendant is liable to pay interest on the interest free security deposit amount. Therefore, I am of the view that the plaintiff is not entitled to claim interest at the rate of 24% p.a. on the admitted arrears of damages/mense profits. But, it is pertinent to note that the plaintiff has invested nearly Rs.100 crores of rupees to construct the suit B schedule property that includes suit C schedule property. Admittedly the defendant has not paid rent amount regularly to the plaintiff. Therefore, the plaintiff has sustained some loss. Hence, in the interest of equity and justice, I am of the view that the plaintiff is entitled to claim interest on the mense profits due amount at the rate of 6% from 02-05-2010 till payment. Therefore, I am of the view that no grounds to accept the arguments or the evidence of D.W.1 urged in this regard on behalf of the defendant. No grounds to discard or disbelieve the evidence of P.W.1 or arguments of the learned counsel for the plaintiff in this regard. Therefore, I answered Issue No.3 as partly in the affirmative.
66 O.S.No.26660/2010
32. Issue No.4 :- In view of my findings on Issues 1 to 3 as above, this Court proceeds to pass the following :-
ORDER The suit of the plaintiff is hereby partly decreed with costs. The defendant shall quit and deliver vacant possession of suit C schedule property( Portion marked as yellow colour in the document marked as Ex P-3) to the plaintiff within 3 months from this date.
It is hereby further ordered that the defendant shall pay Rs.31,93,676/- to the plaintiff with interest at the rate of 6% p.a. being the arrears of damages/mense profits from 02-04-2010 till 30-09-2010.
It is hereby further ordered that the defendant shall pay Rs 5,38,260 per month as damages/mense profits in respect of use and occupation of the suit schedule property from 1.10.2010 till he is evicted from the suit C schedule property with interest at 6% p.a. The plaintiff shall pay Court- fee in respect of the damages due amount from 1-10-2010 till last payment before executing the decree in view of section 42(3) of the Karnataka Court-fees and Suits Valuation Act 1958.67 O.S.No.26660/2010
It is hereby further ordered that the defendant shall deduct the amount that paid towards the arrears of rent and interest free security deposit if any.
It is hereby further ordered that if the defendant fails to quit and deliver vacant possession of the suit C schedule property to the plaintiff within three months from this date, the plaintiff is at liberty to take possession of the same through the process of this Court at the cost of the defendant.
Draw up decree accordingly.
(Dictated to the Judgment-Writer directly through computer, computerized transcript thereof corrected, signed and then pronounced by me in the open court on this the Wednesday the 13th day of April, 2016) [ B.VENKATESHA ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
SCHEDULE Schedule A : All that piece and parcel of land comprising of Sy.Nos.18/1, 18/2, 18/5A, 18/5B portion of Sy.No.20/2B and Sy.No.20/3, Kadabeesanahalli vilalge, Varthur hobli, Bengaluru East taluk together admeasuring 6 acres 20 guntas and bounded as follows : East by Marthahalli - Sarjapur ring road, West by partly by Nala and partly by Su.No.20/2B,, North by partly by Road and partly by Sy.No.20/2A and 20/2B, South by Sy.No.17 of Kadabeesanahalli village and Nala.
Schedule B :- All that piece and parcel of land measuring 2 acres and buildings constructed thereon known as Phase - 68 O.S.No.26660/2010
Development being a portion of schedule A property and comprising of three blocks of buildings viz. Block A, Block B and Block C, having basement, ground, first and second floors together admeasuring 1,12,405 sq.feet in the project known as 'RMZ Ecozen' constructed on the schedule A property above referred to.
Schedule C :- 27% of the schedule B property having 30,350 sq.ft. of built up area in the building known as 'RMZ Ecozen' comprising of i. 3045 sq.ft. on the ground floor of Block B, ii. 13,705 sq.ft. on the first floor of Block B and iii. 12,960 sq.ft. on the second floor of Block B, iv. 640 sq.ft. of service area in the basement of Block B and marked in yellow colour on the plans annexed as Annexure A to F to the plaint.
ANNEXURE
1. List of witnesses examined for the plaintiffs :-
P.W.1 : Raj Menda. 2. List of documents marked :- Ex.P 1 : Copy of the resolution. Ex.P 2,3 CC of development agreements. Ex.P 4 CC of sale deed. Ex.P 5 CC of sale deed dt.3.5.2004. Ex.P 6 CC of letter & enclosures. Ex.P 7 CC of acquisition letter. Ex.P 8 Sale deed. Ex.P 9 CC of legal notice dt.27.1.2007. Ex.P 10 CC of legal notice. Ex.P 11 Postal receipts. Ex.P 12 Postal acknowledgements. Ex.P 13 CC of reply notice. Ex.P 14 CC of lease deed. Ex.P 15 CC of letter of bank.
3. List of witnesses examined for the defendants :-
D.W.1 : Manoj Kumar Vaish. 4. List of documents marked :- 69 O.S.No.26660/2010 Ex.D 1 : CC of Board resolution. Ex.D 2 CC of letter of indent. Ex.D 3 to CC of Email communications. 16 Ex.D 17,18 CC of quotations. Ex.D 19,20 CC of invoice copy. Ex.D 21 CC of details of campus facility infrastructure. Ex.D 22 Offer letter dt.12.12.2002. Ex.D 23 CC of order copy. [ B.VENKATESHA ], XXVIII ACC & S.J. 70 O.S.No.26660/2010 13.4.2016 P - M/s.DA D - M/s.K & P
Case called. Pltff. Pre/abs. Deft. Pre/abs. Their counsels Pre/abs.
Judgment pronounced in open court as under
The suit of the plaintiff is hereby partly decreed with costs. The defendant shall quit and deliver vacant possession of suit C schedule property( Portion marked as yellow colour in the document marked as Ex P-3) to the plaintiff within 3 months from this date.
It is hereby further ordered that the defendant shall pay Rs.31,93,676/- to the plaintiff with interest at the rate of 6% p.a. being the arrears of damages/mense profits from 02-04- 2010 till 30-09-2010.
It is hereby further ordered that the defendant shall pay Rs 5,38,260 per month as damages/mense profits in respect of use and occupation of the suit C schedule property from 1.10.2010 till he is evicted from the suit C schedule property with interest at 6% p.a. The plaintiff shall pay Court- fee in respect of the damages/mense profits due amount from 1-10-2010 till last payment before executing the decree in view of section 42(3) of the Karnataka Court-fees and Suits Valuation Act 1958. 71 O.S.No.26660/2010
It is hereby further ordered that the defendant shall deduct the amount that paid towards the arrears of rent and interest free security deposit if any.
It is hereby further ordered that if the defendant fails to quit and deliver vacant possession of the suit C schedule property to the plaintiff within three months from this date, the plaintiff is at liberty to take possession of the same through the process of this Court at the cost of the defendant.
Draw up decree accordingly.
(Separate judgment is kept in the file.) (B.Venkatesha), XXVIII ACC & SJ.
72 O.S.No.26660/2010