Bangalore District Court
M/S. Quikr India (P)Ltd vs Dr. S. Shyamala Reddy on 2 March, 2020
1
Com.OS.No.8741/2015
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,BANGALORE CITY.(CCH.83)
Dated, this the 2nd day of March, 2020.
PRESENT : Sri.Jagadeeswara.M., B.Com, LL.B.,
LXXXII Addl.City Civil & Sessions Judge, Bangalore.
Com.O.S.NO.8741/2015
PLAINTIFF M/s. Quikr India (P)Ltd.,
Gate No.5, behind Manyata Teck Park,
Rachenahalli, K.R.Puram Hobli,
Bengalure -560 045,
represented by its Company Secretary
Mrs. Mayanka Srivastava, aged about
31 years.
(By Shree Mukhi Associates - Advocates)
VS
DEFENDANTs Dr. S. Shyamala Reddy, W/o late
Sqn.Ldr.Dr.S.G.Reddy, aged about 69
years, Respondent/a No.17/6-1,
Cambridge Cross Road, Ulsoor,
Bangalore-560 008.
(By Srinivas & Badri Counsels-Advocates)
Date of institution of the suit : 15.10.2015
Nature of the suit (suit on Suit for recovery of money
pronote, suit for declaration
and possession suit for injunction,etc) :
Date of the commencement 25.3.2017
of recording of the evidence
Date on which the Judgment 2.3.2020
was pronounced
Total duration Year/s Month/s Day/s
04 04 16
2
Com.OS.No.8741/2015
(JAGADEESHWARA.M.)
LXXXII Addl.City Civil & Sessions Judge,
Bangalore.
JUDGMENT
Plaintiff has filed this suit for recovery of Rs.3,00,00,000/- and for refund of a sum of Rs.25,82,548/- being the Security Deposit amount with interest at the rate of 18% per annum from 15.2.2014 till payment.
2. The brief facts of the plaintiff's case are as under:
It is contended in the plaint that plaintiff company is a leading Real Estate Agency. Plaintiff required office space and as such, had approached the defendant who represented that she was the absolute owner of the suit schedule 'A' premises. The defendant had leased a portion of the schedule- A premises measuring about 4400 sq.ft. In the first floor, 4400sq.ft., in the second floor and 2200sq.ft., of light roof covered terrace-cafeteria in the 3 rd floor along with the right to use 1000sq.ft. Of Parking area in the basement of schedule-A premises under registered Lease Deed dated 9.7.2012. The term of the Lease was for a period of 5 years with lock-in period of one year from the date of commencement of lease. Plaintiff gave interest free security deposit of Rs.40 Lakhs and rent fixed at Rs.5,32,000/- per month with escalation of 5% every year, on failure to pay the monthly rent for two consecutive months, the lease would get terminated and with 60 days notice by either of the parties in case of default in the obligations of the 3 Com.OS.No.8741/2015 lease deed.
2(a). It is further contended in the plaint that as per Clause(3) of the Lease Deed, as the Schedule-B premises required repairs and rectifications, the defendant was required to complete the same to the satisfaction of the plaintiff and handover the possession of the same on 1.8.2012. As per Clause-5.1 of the Lease deed, the plaintiff and its employees, invitees shall have access to and use of the common areas and the leased premises for carrying on the activities of the plaintiff company. As per Clause-6.4 of the Lease Deed, the plaintiff had to pay all the deposits for the 100 KVA power to the competent authorities. Contrary to the terms of the Lease Deed, the defendant did not handover the vacant peaceful possession of the premises to the plaintiff on 1.8.2012. As the schedule-A premises was a new commercial building, some of the civil works were incomplete and did not have desired quantum of electricity connection. The defendant finally handed over possession of the schedule-B premises on 1.11.2012, wherein it was seen that some of the civil works were still incomplete as on 1.11.2012 and the desired quantum of electricity supply was also unavailable. The plaintiff was informed by the authorities that the defendant had not paid the arrears of electricity bill of a sum of Rs.1,05,983/-. Defendant filed an appeal before the Appellate Authority under Sec.127 of the Electricity Act, 2003 by paying half of the billed amount being a sum of Rs.52,992/-, wherein it was ordered by the Appellate Tribunal that the defendant has to pay Rs.1,05,983/-. As the 4 Com.OS.No.8741/2015 defendant was not able to muster the said amount, the plaintiff had paid the balance sum of Rs.52,992/- to BESCOM. The registered Lease deed dated 9.7.2012 executed between the defendant and the plaintiff at Clause-3.2.2 entitles the plaintiff of a sum of Rs.50,000/- for every day of delay in handing over of the possession of the demised premises. Calculating the date of delivery of the vacant possession of the schedule premises by the defendant as 1.11.2012, the defendant is liable to pay the plaintiff a sum of Rs.3,00,00,000/- for the delay in handing over the possession.
2(b). It is further contended in the plaint that the plaintiff and defendant subsequently executed a registered Lease & License Agreement dated 6.4.2013, taking on lease the refurbished space on the 3 rd floor measuring 2200 plus 550 sq.ft., totally measuring 2750 sq.ft., described as Schedule-C premises, for a period of 4 years. Plaintiff paid refundable security deposit of Rs.12,37,500/- and ageed to pay rent of Rs.1,23,750/- with 5% escalation every year. Subsequently, plaintiff faced many problems in schedule B & C premises namely, water seepage in both first and 2nd floor, falling of false ceiling in the first and 2 nd floor due to excess water seepage, non-providing of vehicle parking of 1000sq.ft., in the basement of the building and severe noise pollution. Plaintiff issued notice of Termination dated 24.11.2014 invoking Clause-7.2 of the Lease Deed dated 9.7.2012 and Clause-15 of the Lease and License Agreement Deed dated 6.4.2013. The defendant issued reply notice dated 3.12.2014 refuting the claims of plaintiff as false, baseless and flimsy grounds. Defendant also 5 Com.OS.No.8741/2015 issued notice dated 6.1.2015 seeking payment of rents for the months of November and December 2014 for which plaintiff replied stating that she could deduct the rental charges for the month of November and December 2014 and refund the sum of Rs.37,70,748/- being Security Deposit amount paid by the plaintiff to the defendant, at the time of taking the premises on Lease. Plaintiff further issued letter dated 9.2.2015 to the defendant seeking refund of a sum of Rs.25,82,548/- being the Security Deposit amount after deducting the rentals until 15.2.2015 and called upon the defendant to take back possession of the schedule-B & C premises on 15.2.2015.
2(c). It is further contended in the plaint that plaintiff got issued rejoinder dated 9.3.2015 calling upon the defendant to refund the Security Deposit less deductions of the rentals upto 15.2.2015, for which defendant by letter dated 7.4.2015, represented to waive all her alleged claims pertaining to arrears of rents and interest accrued thereon and also future claims if any, in the event the plaintiff agreed to participate in the mediation proceedings to be held at Bangalore International Mediation, Arbitration & Conciliation), Nandidurg Road, Bangalore. Plaintiff agreed and participated in the mediation proceedings, but the mediation 'FAILED"
to resolve any of the disputes between the plaintiff and defendant. During the intervening period, after the acceptance of the plaintiff to attend mediation, plaintiff and defendant mutually agreed to carry out inspection of the premises to ascertain the damages and cost involved to repair and 6 Com.OS.No.8741/2015 restore the premises. Two reports by the Consultant and one appointed by defendant came to be issued on 18.6.2015 and other by the plaintiff came to be issued on 11.7.2015. Defendant is making efforts to illegally postpone the refund of sum of Rs.25,82548/- being the security deposit amount, less deductions and taken over the vacant possession of the schedule B & C properties. Therefore, the defendant is liable to pay a sum of Rs.3 Crores for the delay caused in handing over possession of the suit schedule premises and Rs.25.82,548/- being Security Deposit less deductions (rentals for the period from 24.11.2014 to 15.2.2015) with interest at 18% per annum. Accordingly plaintiff has requested to decree the suit.
3. The defendant filed written statement contending that the suit schedule A & B properties were taken on lease by the plaintiff vide registered Lease Deed dated 9.7.2012 and subsequently schedule-C property was taken on lease vide Lease & Licence Agreement dated 6.4.2013. Possession of suit schedule property A &B was handed over to the plaintiff even before the lease period would officially commence and the plaintiff started using the suit summons properties promising that they will pay additional four months rent. Plaintiff was conducting business operations in the suit schedule properties even prior to 1.8.2012 which was supposed to be the date of handing over possession of the suit schedule properties as per the Lease deed dated 9.7.2012. Plaintiff in order to evade payment of rents and knowing that the defendant is a senior citizen, 7 Com.OS.No.8741/2015 illegally terminated the Lease Deed dated 9.7.2012 and Lease and License Agreement dated 6.4.2013 vie notice for termination dated 24.11.2014 by making false and baseless allegations against the defendant. Defendant replied to the legal notice issued by the plaintiff vide reply notice dated 3.12.2014 denying the allegations of plaintiff and requesting to pay the rentals in respect of the suit schedule properties.
3(a). It is further contended that the defendant in her legal notice dated 20.1.2012, stated that due to negligent acts of the plaintiff by not maintaining the overhead tank and also not allowing the defendant to carryout minor repair works, the defendant has incurred huge expenses to repair the building. The defendant was unable to rectify the problem at the earliest due to the non co-operative attitude of the plaintiff and therefore, defendant called upon the plaintiff to make payment of Rs.43,78,348/- along with interest at 18% per annum. Plaintiff had illegally and unlawfully withheld the key and deprived the possession of the said premises being delivered to this defendant and only on filing the suit and on 17.10.2015, plaintiff deposited the key before this court, on account of which the defendant has incurred huge loss and plaintiff is liable to pay the damages to the defendant.
3(b). It is further contended in the written statement that even assuming that the defendant is liable to pay the alleged claim of the plaintiff for the alleged delay in handing over the possession of the schedule premises from 1.8.2012 to 1.11.2012, when calculated, it amounts 8 Com.OS.No.8741/2015 to only Rs.4650,000/- . However, plaintiff has allegedly claimed an amount of Rs.3 Crores with malafide intention to enrich itself. Accordingly, defendants have requested to dismiss the suit.
4. On the above pleadings of the parties, the following issues are framed :
ISSUES
1. Whether the plaintiff proves that defendant has not handed over the suit 'A' schedule property on 1.8.2012 a per the Lease Agreement and he has handed over the possession of the same on 01.01.2012 ?
2. Whether the plaintiff proves that he is entitled for Rs.50,000/- per day for delay in handing over the suit 'A' schedule property as per Clause-3.2.2 of Lease Deed and he is entitled to Rs.3 Crores towards the delay in handing over the possession of suit 'a' schedule property by the plaintiff ?
3. Whether the plaintiff proves that he is entitled for refund of Security Deposit of Rs.25,82,548/- after deducting the rent from 24.11.2014 to 15.02.2015 ?
4. Whether the plaintiff is entitled for interest @ 18% per annum on Rs.25,82,548/- from 15.2.2015 till repayment of the entire amount ?
5. Whether the plaintiff is entitled for suit claim as prayed for ?
6. What Order/Decree ?9
Com.OS.No.8741/2015
5. In proof of suit claim, the Company Secretary of the plaintiff company got examined himself as PW.1 and got marked documents as Exs.P.1 to P.22. There is no oral and documentary evidence placed by the defendant.
6. I have heard the arguments of the learned counsel for plaintiff. Since defendant and her learned advocate remained absent, defendant's argument was taken 'heard'.
7. My findings on the above issues are as follows: -
FINDINGS Issue Nos. 1 and 2 : Negative Issue Nos. 3 and 4 : Affirmative Issue No.5 : Partly in the affirmative Issue No.6 : As per final order for the following:
REAS O NS
8. ISSUE NOs. 1 TO 5: These issues are interrelated to each other and require common consideration of facts. Hence, I have taken these issues together for discussion.
9. It is submission of learned advocate for plaintiff that claim of the plaintiff for recovery of Rs.3 Crores from the defendant is based on Clause-3.2.2 of registered Lease Deed dated 9.7.2012 at Ex.P.3 since it was agreed by the Lessor/defendant to handover leased premises to the Lessee/plaintiff on 1.8.2012. But, Lessor failed to deliver possession of 10 Com.OS.No.8741/2015 the premises on that day. Lessor delivered possession of the leased premises to the Lessee on 1.11.2012, which is evidenced in Ex.P.6. As per Clause-3.2.2 of the Lease Deed at Ex.P.3, Lessor is liable to pay Rs.50,000/- per day for every day's delay in handing over the leased premises to the Lessee. There is no oral and documentary evidence placed by the defendant to disprove the claim of the plaintiff in this regard. Accordingly learned advocate for plaintiff has requested to answer Issues Nos.1 & 2 in the affirmative.
10. Further it is also submission of learned advocate for plaintiff that it is undisputed fact that Lessee/plaintiff terminated the Lease Deed relating to Schedule A & B property and also Lease & License Agreement relating to the Schedule-C property by issuing termination notice dated 24.11.2014 at Ex.P.9. Accordingly, Lessee/plaintiff vacated the premises on 15.2.2015 as stated in the notice dated 9.2.2014 at Ex.P.14 and demanded the defendant to refund balance Security Deposit of Rs.25,82,548/- after making adjustment towards rents upto February 2015 from the total refundable Security Deposit. Defendant has not disputed this amount of Rs.25,82,548/- payable to the plaintiff. Accordingly learned advocate for plaintiff has requested to answer Issue Nos.3 to 5 in the affirmative.
11. Since defendant and her learned advocate were absent, argument of defendant's side was taken 'heard'.
12. After having heard learned advocate for plaintiff, I have 11 Com.OS.No.8741/2015 carefully gone through the pleadings of both parties and also oral and documentary evidence placed by the plaintiff. It is undisputed fact that defendant is owner of the building described in plaint A to C Schedule. Defendant had entered into registered Lease Deed dated 9.7.2012 at Ex.P.3 with the plaintiff with certain terms and conditions. Defendant received Rs.40 Lakhs from the plaintiff as interest free refundable Security Deposit as per Clause-4.4 of registered Lease Deed at Ex.P.3. Clause-3.2, Clause- 3.2.1 and Clause-3.2.2 of said Lease Deed are as under:
"3.2 In the even of there being a delay in the handing over of the Demised Premises duly completed as per Annexure A, beyond August 1, 2012, the Lessee shall have the option of 3.2.1 terminating the Lease and obtai the refund of the entire security deposit paid forthwith along with interest @ 2% per month 3.2.2 accepting possession at a later date subject to a sum of Rs.20,000/- per day for every day's delay in handing over the schedule Property being to the Lessee".
As per these Clauses of the Lease Deed, in case of delay in handing over the leased premises beyond 1.8.2012, the Lessor was provided with two options i.e., (1) To terminate lease and to get the entire security deposit amount back with interest at 2% per month or; (2) accept the possession at a later date subject to a sum of Rs.50,000/- per day for every day's delay in handing over the schedule property being given to the Lessee. After considering the nature of these Clauses in the Lease Deed and also after going through the other records produced by the plaintiff, plaintiff is not entitled to claim Rs.3 Crores from the defendant based on Clause-3.2.2 of 12 Com.OS.No.8741/2015 Ex.P.3 for several reasons. Among them, first reason is that it is contention of plaintiff and it is evidence of PW.1 that defendant/Lessor handed over leased premises to the plaintiff/Lessee on 1.11.2012 and not on 1.8.2012. Even this say of the plaintiff is believed as truth, then the delay in delivering the leased premises is 31 days in August 2012, 30 days in September 2012 and 31 days in October 2012 ie in all 92 days and Rs.50,000/- per day x 92 days = 46 Lakhs only and not Rs.3 Crores as claimed by the plaintiff. Second reason is that except letter at Ex.P.6 said to have been given by the plaintiff to the defendant, there is no other reliable materials placed by the plaintiff to show that defendant did not handover the leased Premises to the plaintiff on 1.8.2012. Third reason is that as per Clause-3.2 of Lease Deed at Ex.P.3, in case of delay in handing over the leased premises by the Lessor to the Lessee, the two options given to the Lessee are : 1) Terminate the lease and get the Security Deposit back with interest at 2% per month; or 2) accept the possession at a later date subject to sum of Rs.50,000/- per day per every day's delay is being given to the Lessee. This means, if the Lessee opts second option, then Lessee had to accept the possession at a later stage along with a sum of Rs.50,000/- per day for every day's delay in handing over the property being given. It is pertinent to note that, records produced by the plaintiff are Exs.P.1 to P.22. These records disclose prior to filing of the suit, plaintiff never made claim to the defendant as per Clause-3.2.2 of Lease Deed at Ex.P.3. It never issued notice to the defendant making allegations 13 Com.OS.No.8741/2015 that there was delay in handing over the leased premises and thereby demanding to pay Rs.50,000/- per day as per Clause-3.2.2 of Ex.P.3. Even subsequently, on 6.4.2013 plaintiff and defendant had also entered into Lease & License Agreement as per Ex.P.7 relating to another portion of the building, which is shown as schedule-C. This shows there was no delay in delivering the leased premises by the Lessor to the Lessee. For a while, if it is considered that there was delay in delivering the leased premises by the Lessor to the Lessee, Lessee did not opt Clause-3.2.2 of the Lease Deed at Ex.P.3 till filing of this suit. Fourth reason is that it is undisputed fact that plaintiff issued notice dated 24.11.2014 as per Ex.P.9 to the defendant terminating the Lease and also Lease & License Agreement. In this notice at Ex.P.9, plaintiff demanded the defendant to return the Security Deposit amount of Rs.40 lakhs paid under Lease Deed at Ex.P.3 and also Rs.12,37,500/- paid under Lease & License Agreement at Ex.P.7. There is no demand made by the plaintiff in this notice at Ex.P.9 to pay amount of Rs.50,000/- per day as per Clause-3.2.2 of Ex.P.3. Defendant has issued reply notice at Ex.P.10 stating that rents are due and she is entitled to adjust the refundable Security Deposit towards arrears of rents. Subsequently defendant issued another notice dated 6.1.2015 at Ex.P.11 to the plaintiff claiming rents for the month of November and December 2014. Plaintiff had issued reply dated 8.1.2015 at Ex.P12 to the defendant instructing the defendant to deduct Rs.14,66,752/-, from the total refundable Security Deposit amount, towards rents for the months of November and December 14 Com.OS.No.8741/2015 2014 and then to return remaining Security Deposit of Rs.37,70,748/-. Again plaintiff had issued another notice dated 9.2.2015 to the defendant as per Ex.P.14 stating that it would vacate the premises on 15.2.2015 and requested the defendant to return remaining refundable Security Deposit of Rs.25,82,548/- after making adjustment from the total refundable Security Deposit amount towards rents for the months of November 2014, December 2014, January 2015 till February 2015. Even in this notice also, there is no demand made by the plaintiff to pay Rs.50,000/- per day as per Clause-3.2.2 of Ex.P.3. Thus, from the materials on record, it is clear that till vacating the schedule premises, plaintiff did not demand the defendant to pay Rs.50,000/- per day as per Clause-3.2.2 of Lease Deed at Ex.P.3. Therefore, plaintiff is not entitled to claim amount as per Clause-3.2.2 of Lease Deed at Ex.P.3.
13. It is undisputed fact that plaintiff paid Rs.40 lakhs to the defendant towards interest free refundable Security Deposit as shown in Clause-4.4 of Lease Deed at Ex.P.3. Further plaintiff paid Rs.12,37,500/- to the defendant towards refundable interest free Security Deposit as per Clause-6 of Lease & License Agreement dated 6.4.2013 at Ex.P.7. These amounts shown in both the dates were given through cheques. There is no dispute raised by the defendant relating to these interest free Security Deposit amounts paid by the plaintiff. As could be seen from the notice and reply notice between the parties, after making adjustment towards rents for the months of November, 2014, December 2014, January 2015 & February 15 Com.OS.No.8741/2015 2015, from the total interest free Security Deposit, defendant is liable to return remaining refundable deposit of Rs.25,82,548/- to the plaintiff. There is no oral and documentary evidence of the defendant . By considering the provisions of Interest Act and also Bank rate of interest, plaintiff is entitled for the interest at 12% per annum on this sum of Rs.25,82,548/-. For these reasons, Issue Nos.1 & 2 are answered in the 'Negative', Issue Nos.3 & 4 are answered in the 'Affirmative' and Issue No.5 is answered partly in the 'Affirmative'.
14. ISSUE NO.6 : For the reasons discussed above, I proceed to pass the following :
ORDER Suit of the Plaintiff is partly decreed with proportionate costs.
Plaintiff is entitled to recover Rs.25,82,548/- only from the defendant with future interest at 12% per annum from the date of suit till realization of entire amount.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 2nd day of March , 2020).
(Jagadeeswara.M), LXXXII Addl. City Civil & Sessions Judge, Bangalore.
16
Com.OS.No.8741/2015
AN N EXU RE
LIST OF WITNESSES EXAMINED FOR PLAINTIFF
PW.1 Mayanka Srivastava
LIST OF DOCUMENTS MARKED FOR PLAINTIFF
Exs.P-1 Copy of the incorporation certificate along with
Memorandum of Association and Articles of Association of the plaintiff.
" P-2 True extract of Resolution of Board of Directors of plaintiff.
" P-3 Original Registered lease deed dated 09.07.2012.
" P-4 Online print of bank statement.
" P-5 Copy of e-mail dated 05.12.2012 issued by the plaintiff
to the Defendant.
" P-6 Possession letter dated 01.02.2013 sent by the plaintiff to
the Defendant (with annexures red ink page Nos.83 to
109).
" P-7 Copy of registered lease and license agreement dated 06.04.2013.
" P-8 Letter dated 23.04.2013 sent by the plaintiff to the Defendant relating to occupancy of 3rd floor premises. " P-9 Office copy of notice for termination dated 24.11.2014 sent by the plaintiff to the Defendant.
" P-10 Reply notice dated 03.12.2014 sent by the Defendant to the plaintiff.
" P-11 Letter dated 06.01.2015 sent by the Defendant to the plaintiff.
" P-12 Reply notice dated 08.01.2015 sent by the plaintiff to the Defendant.
" P-13 Copy of postal acknowledgment to show notice dated 08.01.2015 was served to the Defendant.
" P-14 Another notice dated 09.02.2015 sent by the plaintiff to the Defendant. Defendant received this notice by hand and made endorsement on this Ex.P.14.
" P-15 Legal notice dated 11.02.2015 issued by the Defendant to 17 Com.OS.No.8741/2015 the plaintiff.
" P-16 Reply notice dated 09.03.2015 sent by the plaintiff to the Defendant.
" P-17 Reply notice dated 07.04.2015 sent by the Defendant to the plaintiff.
" P-18 Reply notice dated 24.04.2015 sent by the plaintiff to the Defendant.
" P-18(a) Postal receipt relating to Ex.P.18. " P-19 Copy of e-mail dated 18.06.2015 sent by the counsel of Defendant to the counsel of plaintiff.
" P-20 Six original estimates dated 11.07.2015 relating to the damage issued by the valuator appointed by the plaintiff. " P-21 Copy of order of the National Company Law Tribunal, Bengaluru relating to the amalgamation of the plaintiff. " P-22 Certificate U/Sec.65B of Indian Evidence Act.
LIST OF WITNESSES EXAMINED FOR DEFENDANT: NIL LIST OF DOCUMENTS MARKED FOR DEFENDANT : NIL (JAGADEESHWARA.M.) LXXXII Addl.City Civil & Sessions Judge, Bangalore.
18 Com.OS.No.8741/2015 Judgment pronounced in Open Court vide separate orders:
Suit of the Plaintiff is partly decreed with proportionate costs.
Plaintiff is entitled to recover Rs.25,82,548/- only from the defendant with future interest at 12% per annum from the date of suit till realization of entire amount.
Draw decree accordingly.
(JAGADEESWARA.M.) LXXXII Addl.City Civil & Sessions Judge, Bangalore.
After judgment is pronounced learned advocate for defendant filed memo seeking permission to retire from the vakalath of defendant. Further learned advocate for defendant has produced mail print outs and copy of notice and other records to show he has issued notice of retirement and also had sent its information to the defendant through mail. Since already judgment is pronounced today, there is no need to pass order on this memo of retirement. However, this memo of retirement is just taken on record.
(JAGADEESWARA.M.) LXXXII Addl.City Civil & Sessions Judge, Bangalore.