Karnataka High Court
Smt. Prema. K vs Mr. Afzal Ahmed on 28 February, 2024
-1-
NC: 2024:KHC:8238
RFA No. 727 of 2019
IN THE HIGH COURT OF KARNATAKA,
PRINCIPAL BENCH AT BENGALURU
DATED THIS ON TUESDAY, 28TH DAY OF FEBRUARY, 2024
BEFORE
HON'BLE JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO.727 OF 2019
BETWEEN
SMT. PREMA. K.,
W/O. LINGE GOWDA,
AGED ABOUT 57 YEARS,
R/AT: MUNICPAL NO 836/A-45,
SRS ROAD, NEAR RNR BAR
PEENYA BENGALURU- 560080.
...APPELLANT
Digitally signed (BY SRI K.S. CHANDRAHASA, ADVOCATE)
by SAMREEN
AYUB DESHNUR AND
Location: HIGH MR. AFZAL AHMED,
COURT OF
KARNATAKA S/O. ABDUL RAZAAK,
AGED ABOUT 58 YEARS,
PROPRIETOR: HUNSUR WOOD CRAFTS,
NO 106/2, HESARAGHATTA MAIN ROAD,
CHIKKABANAWARA, BENGALURU-560090.
...RESPONDENT
(BY SMT. D. SOUBHAGYA, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96 R/W
ORDER XLI RULE 1 AND 2 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 01.02.2019 PASSED IN OS.NO.4598/2013
ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR
RECOVERY OF MONEY.
-2-
NC: 2024:KHC:8238
RFA No. 727 of 2019
THIS REGULAR FIRST APPEAL COMING ON FOR
ARGUMENTS AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.01.2024, THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This is defendant's appeal against the Judgment and Decree passed in O.S.No.4598/2013 by the Court of XXXV Additional City Civil and Sessions Judge Court, Bengaluru (CCH-36) (for short hereinafter referred to as 'the Trial Court') dated 01.02.2019.
2. Respondent/plaintiff has filed the suit for recovery of security deposit paid to the defendant/ appellant. The said suit was decreed by the Trial Court by the impugned Judgment and Decree and same is challenged on the various grounds mentioned in the memorandum of appeal.
3. To dispose of this appeal, brief facts of the case of both the parties before the Trial Court were as under :
It was the case of plaintiff that he had obtained property belonging to the defendant bearing No.836/A45 -3- NC: 2024:KHC:8238 RFA No. 727 of 2019 situated at SRS Road, Peenya, Bengaluru on lease by entering into a Rental Agreement dated 01.04.2011 for a period of 36 months and monthly rent was Rs.6,030/-; the period of lease was 03 years. Plaintiff had to pay security deposit of Rs.6,50,000/-, which has to be refunded after completion of the lease period termination of the lease without any interest. Accordingly, a written agreement was entered into between the parties on 01.04.2011. As per terms of agreement, the plaintiff has paid the said security deposit of Rs.6,50,000/- to the defendant and occupied the suit property. It is further contended by the plaintiff that the said lease was terminated and plaintiff has vacated and handed over the vacant possession of the leased out property to the defendant on 10.06.2012. The plaintiff has demanded for refund of security deposit amount; the defendant had issued three cheques for refund of security deposit; all three cheques were dishonoured for insufficient of funds, that was intimated to the defendant. However, she did not repay the said amount of security deposit. It was also contended that the defendant had paid -4- NC: 2024:KHC:8238 RFA No. 727 of 2019 Rs.1,00,000/- on 12.07.2012 and she had adjusted Rs.66,000/- towards the arrears of rent for the six months at the rate of Rs.6,030/- per month and in all she was due for an amount of Rs.4,84,000/-. She did not repay the said amount. Hence to recover the said amount, the plaintiff- tenant has filed the suit in O.S.No.4598/2013 and prayed to decree the suit.
4. Defendant has contended that the suit claim is false. However, she has admitted about Lease Agreement, amount of security deposit, rent, period of lease etc., According to her contention, before completion of the lease period, plaintiff had vacated the premises. He has damaged the building, for which, she has to spend more than Rs.1,00,000/- towards repairing. She has repaid part of security deposit by cash as under :
Rs.50,000/- On 03.08.2012
Rs.80,000/- On 02.09.2012
Rs.40,000/- On 19.10.2012
Rs.30,000/- On 06.12.2012
-5-
NC: 2024:KHC:8238
RFA No. 727 of 2019
5. In all she has paid Rs.2,00,000/- to the plaintiff towards part of security deposit. After deducting all these things, she was liable to pay only Rs.1,84,000/- and not Rs.4,84,000/- as claimed by the plaintiff. With these reasons prayed for dismissal of the suit with costs.
6. From the rival contentions of the parties, the Trial court has framed the following :
ISSUES (1) Whether the plaintiff proves that defendant is due of Rs.4,84,000/- as on the date of filing the suit?
(2) Whether the plaintiff is entitle for the decree as prayed for?
(3) What order or decree?
7. Plaintiff to prove his case examined P.W.1 and got marked Ex.P.1 to 11. Defendant has not lead oral or documentary evidence.
8. The learned Trial Judge after hearing both parties and appreciating the evidence on record, answered -6- NC: 2024:KHC:8238 RFA No. 727 of 2019 both issues in favour of the plaintiff and by the impugned Judgment and Decree dated 01.02.2019, decreed the suit.
9. I have heard the arguments of learned advocates for both sides.
10. The learned counsel for the appellant has vehemently contended that plaintiff was not able to prove his case before the Trial Court. From the conduct of plaintiff, the case of defendant is more probable. According to the case of the plaintiff, the defendant had issued cheques to repay the part of security deposit and said cheques were dishonoured, thereafter defendant had paid Rs.2,00,000/- in cash on various dates. Admittedly, plaintiff did not initiate any legal action for dishonour of cheques issued by the defendant. It probabolises the case of defendant about payment in cash. That was not considered by the Trial Court. He further submits that in the cross examination, the plaintiff has admitted that he has received Rs.15,000/- and Rs.80,000/- from the defendant and that was also not adjusted by the learned -7- NC: 2024:KHC:8238 RFA No. 727 of 2019 Trial Judge towards repayment of the security deposit. The amount claimed by the plaintiff is a security deposit. According to the Lease Agreement, defendant has not liable to pay the interest. However, the learned Trial Judge awarded an exorbitant interest of 18% per annum on the said amount. Therefore, he prayed to allow the appeal and dismiss the impugned Judgment and Decree.
11. Learned Advocate for the respondent has submitted that the learned Trial Judge has considered the contentions of both parties properly and there are no reasons to interfere with the findings. While recording the cross-examination of P.W.1, due to typographical mistake, full stop was given to incomplete sentence and on that basis defendant/appellant has contended that it was an admission of payment of Rs.80,000/-; But if we read the said sentence properly, then it clearly shows that it was a typographical mistake. And on that basis, the appellant cannot contend that P.W.1 had admitted of receipt of Rs.80,000/-. The defendant had not led any evidence or -8- NC: 2024:KHC:8238 RFA No. 727 of 2019 entered into the witness box to give an opportunity to the plaintiff to cross-examine her. Therefore, adverse inference has to be drawn. With these reasons, she prays to dismiss the appeal with costs.
12. The following points emerge for my determination.
(1) Whether the trial Judge is justified in holding that the amount due to the plaintiff is Rs.4,84,000/-?
(2) Whether the trial Judge is justified in awarding interest at the rate of 18% per annum from 01.01.2012 till realization of the entire amount.
13. Both points are connected and hence discussed them together.
14. The following facts are not in dispute.
* The plaintiff has obtained property
belonging to the defendant bearing
No.836/A45 situated at SRS Road, Peenya, -9- NC: 2024:KHC:8238 RFA No. 727 of 2019 Bengaluru on term lease by an agreement dated 01.04.2011.
* Interest free security deposit of Rs.6,50,000/- was paid by the plaintiff while obtaining the possession of the property to the defendant and it was agreed to refund same after termination of the lease.
* Before completion of agreed period of three years, plaintiff had vacated the suit premises and handed over same to the defendant on 10.06.2012.
* Defendant had paid Rs.1,00,000/- on 12.07.2012 which is a part of security deposit. Defendant had adjusted Rs.66,000/- in the said security deposit towards arrears of rent. * There was no condition for payment of interest on the security deposit while returning it to the plaintiff.
- 10 -
NC: 2024:KHC:8238 RFA No. 727 of 2019
15. The main defence of the defendant is that she had paid Rs.4,66,000/- to the plaintiff out of security deposit of Rs.6,50,000/- and she was liable to pay Rs.1,84,000/- and contention of plaintiff is that the defendant is liable to pay Rs.4,84,000/- out of the security deposit.
16. Plaintiff-P.W.1 in his evidence, he iterated the plaint averments. In his cross-examination, he has denied the suggestion of the defendant that on 19.10.2012, he received Rs.40,000/-, on 06.12.2012 he received Rs.30,000/- and on 03.08.2012 he received Rs.50,000/- from the defendant. In the cross-examination, a suggestion was made which reads as under :
"It is incorrect to say that after dishonour of the cheque dated 07.08.2012. I have received Rs.80,000/- from the defendant on 02.09.2012."
17. On the basis of said sentence, the learned counsel for defendant has vehemently contended that the
- 11 -
NC: 2024:KHC:8238 RFA No. 727 of 2019 plaintiff has admitted about receipt of Rs.80,000/- on 02.09.2012, which case is made out by the defendant in the written statement. And the contention of the learned counsel for respondent is that due to typographical mistake while recording the evidence, wrongly punctuation mark was given to incomplete part of sentence after the date "07.08.2012". From reading of the said sentence, which clearly shows that it was a typographical mistake and on that basis the defendant cannot contend that it was an admission. Moreover, the defendant has not entered the witness box to substantiate her defences and no documents are placed on record to show that she has had paid Rs.80,000/- on 02.09.2012. Hence said fact is not proved. The submission of learned advocate for respondent is tenable. However, the respondent should have brought the said mistake to the knowledge of learned trial Judge, at least after receiving of the certified copy of deposition of P.W.1. Looking to above referred sentence, it indicates that due to typographical mistake punctuation mark (full stop) was typed at wrong place and before
- 12 -
NC: 2024:KHC:8238 RFA No. 727 of 2019 completion of sentence. If we read said part of sentence, then it has no meaning. If we read whole ignoring punctuation mark, then the said sentence was meaning. It appears that a suggestion was made about payment of Rs.80,000/- on 02.09.2012 after dishonour of cheques and witness has denied the same. Defendant cannot get benefit which is a pure typographical mistake. Defendant has not placed any materials about payment of said amount. It is difficult to accept the contention of learned counsel for the appellant in this regard.
18. It is also submission of the learned counsel for appellant that P.W.1 has admitted the receipt of Rs.15,000/- through cheque and this was not considered by the Trial Court. The said submission is also not tenable. In the written statement, there is no reference about the payment of Rs.15,000/- to the plaintiff. The question was very vague. There are no further questions asked by the defendant that Rs.15,000/- paid to the plaintiff through cheque is a part of security deposit paid by the defendant.
- 13 -
NC: 2024:KHC:8238 RFA No. 727 of 2019 When the said fact is absent, on the basis of a vague answer given by P.W.1, this Court cannot hold that Rs.15,000/- received by the P.W.1 was a part of security deposit. It appears that, this point is not urged before the Trial Court and for the first time, same is raised before this Court. On this count also, it is not tenable.
19. The learned trial Judge assigning the valid and proper reasons held that the defendant is liable to pay a sum of Rs.4,84,000/- to the plaintiff.
20. Admittedly, there is no condition in the Ex.P.1/Rent Agreement for payment of interest on security deposit for delayed payment of the same to the plaintiff. Under such circumstances, without any reason, the learned trial Judge awarded interest at the rate of 18% per annum that is also on much higher side. The suit is for recovery of security deposit. As already stated above, at the time of obtaining the property on lease, the plaintiff had paid the security deposit. Admittedly, he had vacated the premises and handed over the possession to the
- 14 -
NC: 2024:KHC:8238 RFA No. 727 of 2019 defendant on 10.06.2012. After exchange of notice also she did not pay the amount. Therefore, plaintiff has filed the suit which is contested by her and gained time till 2019. Admittedly, the plaintiff is business man and said amount of Rs.6,50,000/- is withheld by the defendant. Under these circumstances, defendant has to pay the interest. It is a commercial transaction, therefore considering the provisions of Section 34 of the CPC, the purpose for which it was given; default of defendant to repay the same and interest charged by the commercial banks, it is felt that imposing of interest at the rate of 10% per annum, is just and proper.
21. Due to the defaults of the defendant, plaintiff could not get the relief for about a decade. Therefore, the plaintiff is entitled for cost of litigation throughout.
22. For the aforesaid discussions, I answer the point No.1 in the affirmative negative and point No.2 partly in the affirmative and pass the following :
- 15 -
NC: 2024:KHC:8238
RFA No. 727 of 2019
ORDER
(i) The appeal is partly allowed.
(ii) The appellant shall bear the costs of
litigation of the respondent-plaintiff
throughout.
(iii) The impugned Judgment and Decree dated 01.02.2019 passed by the XXXV Additional City Civil and Sessions Judge, Bengaluru (CCH-36) in O.S.No.4598/2013 is modified.
(iv) The defendant/appellant shall pay Rs.4,84,000/- to the plaintiff-respondent with interest at the rate of 10% per annum from the date of the suit till its realization.
Sd/-
JUDGE CKK ct-umd