Bangalore District Court
Mr.M.M.Kodandaram vs Union Bank Of India on 29 June, 2017
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 29th Day of June, 2017.
Present: Ms.VELA. D.K., B.A., LL.B.(Hons.)
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No. 8 5 8 5 / 2011
Plaintiff Mr.M.M.Kodandaram,
Hindu, aged about 61 years,
s/o.late Magaji Mhavarsa,
No.983/129, 2nd Main Road,
IV Block, Rajajinagar,
Bengaluru-560010.
by Sri.N.Jaiprakash Rao, Advocate.
Vs.
Defendants 1. Union Bank of India,
Head Office, No.239,
Backbay Reclamation,
Nariman Point,
Mumbai-400021.
2. The Senior Manager,
Union Bank of India,
B.V.K.Iyengar Road Branch,
No.10, "Sri Complex", 1st Floor
and 2nd Floor,
Hanumantharaya Temple Street,
B.V.K.Iyengar Road,
Bengaluru-560053.
D1-Exparte.
D2-by Sri.S.R.Narayanappa, Advocate.
2 O.S.No.8585/2011
Date of institution of suit 05-12-2011
Nature of the suit Ejectment and
Mesne Profits
Date of commencement of 04-01-2016
recording of evidence
Date on which Judgment 29-06-2017
was pronounced
Total duration Days Months Years
24 06 05
JUDGMENT
This is a suit for Ejectment and Mesne profits.
2. The case of the plaintiff is that, he is the absolute owner of the schedule property, consisting of ground floor to 3rd floor. The 1st defendant was said to be inducted as a lessee, vide Lease Deed dated 2-8-1991 in respect of the 1st floor and the 2nd floor and that is the suit schedule property. On the expiry of the initial lease period, it was said to have been extended for a further period of 10 years with effect from 2-8-2001, that was registered vide Document No.4084/2003-04. The period of lease was said to have been reserved as on 1-8-2001. The Bank is said to be a Statutory Tenant. At the first instance, when the lease expired on 1-8-2001, the plaintiff was said to have been made to run from pillar to post to know if the defendant-Bank was interested to renew the lease. Inspite of persistent requests and reminders to the local branch, the Bank is said to have taken more than two years to execute the renewed Lease Deed dated 28-11-2003, which is 3 O.S.No.8585/2011 said to have expired on 1-8-2011. In view of the earlier experience of the plaintiff and as a matter of courtesy, the plaintiff said to have addressed a letter dated 30-4-2011 seeking opinion of the defendant- Bank, if they were interested to renew the lease or not. Belatedly, the 2nd defendant is said to have replied on 23-7-2011 acknowledging the letter and the 1st defendant is said to have similarly acknowledged on 13-7-2011 and the Regional Office of the defendant-Bank is said to have acknowledged on 8-8-2011. There was said to be no positive response from the defendant-Bank, whereby, the plaintiff is said to have issued a letter dated 9-9-2011 and inspite of the acknowledgment of the said letter, the defendant-Bank is said to have neither replied nor complied with the terms of the letter. Therefore, the defendant-Bank is said to be not interested to continue the renewal of the lease. When there was no response from the defendant- Bank, therefore, was said to have been constrained to issue the legal notice dated 17-10-2011, calling upon the defendants to quit, vacate and handover the vacant possession of the schedule premises and that was duly received and acknowledged by the defendants.
The schedule property is said to be non- residential premises, measuring more than 14 square meters and the plaintiff is said to not intended to continue the defendant-Bank as a 4 O.S.No.8585/2011 tenant. Therefore, the tenancy is said to have been duly terminated. The 1st defendant is said to have failed and neglected to comply the statutory requirement to vacate and deliver the vacant possession of the schedule property on the termination of the tenancy. But, the 1st defendant is said to have continued in occupation of the schedule property and therefore, the plaintiff is said to be entitled to claim mesne profits for the use and occupation of the schedule property for the period after the termination of the tenancy. The schedule property is said to be situated at B.V.K.Iyengar Main Road and to be a high commercial potential area and the 1st defendant-Bank is thereby, liable for the mesne profits at the rate of Rs.90,000/- per month from the date of termination of the tenancy, till the date of delivery of possession of the suit property. Inspite of legal termination of the tenancy, the 1st defendant is said to have failed to deliver the possession of the schedule property. Hence, the plaintiff has filed the above suit.
3. In the written statement, the reply to the letter of the plaintiff, defendant to be the lessee of the plaintiff, are all admitted facts.
The specific contention is that, the defendant to have already informed the plaintiff of his attempt to look out for bigger accommodation for their Bank and therefore, had requested for some more time to 5 O.S.No.8585/2011 give the necessary response to the letters addressed by the plaintiff. The defendant is said to have already secured an alternate accommodation and that the Bank is said to be required to vacate the premises of about six months after securing necessary permission from the Head Office, the 2nd defendant is said to inform the exact date of vacating the premises. Further, has denied all the rest of the averments of the plaint.
In the additional written statement, the defendants have contended that, they are said to be Statutory contentions and thereby, question of paying damages at the rate of Rs.90,000/- per month in the place of Rs.26,000/- per month in the form of rent, is said to not arise. The possession of the schedule property is said to have been already handedover to the plaintiff, for which there was a Memo filed dated 10-4-2013, stating that, possession was handedover on 25-3-2013. In that Memo, it was stated that, necessary Delivery Note and other relevant papers to have been exchanged between the parties, that were filed as Annexures with the memo. The plaintiff had claimed to continued the suit property for the determination of the mesne profits, as the defendants had not complied the statutory requirement for vacating the schedule premises in terms of the agreement. Prior to handing over possession on 25-3-2013, the 6 O.S.No.8585/2011 parties are said to have met in the schedule property and the plaintiff is said to have initiated for some minor repairs n the schedule premises, for which, the Bank is said to have agreed to reimburse entire expenditure for that minor requirement and also those minor requirements were said to have been carried out by the plaintiff and the entire amount was spent by the plaintiff, which was reimbursed by the defendant. Those relevant documents are contended to be produced at the time of the evidence. The plaintiff is said to have issued notice of termination and the failure of the defendants to comply with the statutory requirements, the plaintiffs are said to have sought for damages of Rs.90,000/- per month from the date of suit, till the delivery of the schedule property. Even on the Memo filed by the plaintiff on 10-4-2013, the plaintiff is said to have contended that the first relief of the Ejectment not arise and that, the defendant, after the possession was handedover to the plaintiff, the question of unauthorized occupation and penal interest at the rate of R s.90,000/- in the place of Rs.26,000/- per month, is said to not arise.
Denying all the other averments of the plaint, therefore, have sought for the dismissal of the suit.
7 O.S.No.8585/20114. My Predecessor-in-Office has framed the following Issues:
1. Whether the plaintiff proves that, the lease of suit property in favour of defendants is terminated as per law?
2. Whether the plaintiff is entitled to mesne profits of Rs.90,000/- per month, from the date of termination of lease, till delivery of vacant possession of suit property by defendants to plaintiff?
3. Whether the defendants prove that, the suit in respect of Ejectment of defendants from suit property has become infructuous, on the ground that, defendants delivered possession of suit property to plaintiff?
4. What Decree or Order?
5. To prove the case, the plaintiff has got examined himself as P.W.1 and got marked Exs.P1 to P14.
The Branch Managers of the defendant-Bank is examined as D.W.1 and D.W.2 and there is no documentary evidence adduced by the defendants.
6. Heard arguments of Learned Counsels for both the parties.
8 O.S.No.8585/20117. The findings on the above Issues are as under:
Issue No.1 - Does not arise, Issue No.2 - as per Final Order, Issue No.3 - Does not arise, Issue No.4 - as per Final Order below, for the following:
Reasons
8. Issue Nos. 1 and 3 : The defendant to be the lessee of the plaintiff, the monthly rent to be Rs.26,000/-, are admitted facts. Moreover, as per the records, on 10-4-2013 Memo has been filed for the plaintiff stating that, the defendants to have delivered the possession of the suit schedule property on 25-3-2013. The Delivery Note and the relevant papers are said to have been exchanged between the parties. The plaintiff is said to continue the suit for the determination of the mesne profits for use and occupation, as the defendants had not complied with the statutory requirement of vacating the schedule premises on termination of the tenancy. Therefore, it means that, the scope of the above suit is for mesne profits, in view of the possession being delivered by the defendants to the plaintiff on 25-3- 2013, the Issues No.1 and 2 cannot arise and accordingly, they are answered.
9 O.S.No.8585/20119. Issue No. 2 : In view of the admitted fact about the possession being handedover by the defendants to the plaintiff on 25-3-2013, therefore, the only dispute which is to be adjudicated between the parties is about the mesne profits.
At the outset, the property described in the Schedule to the plaint has been as follows:
" All that piece and parcel of the commercial office unit situated in the First Floor and Second Floor bearing Corporation No.10, "Sri Complex", Hanumantharaya Temple Street, BVK Iyengar Road, Bengaluru- 560053, totally measuring 1790.40 Square Feet of built up area, together with water, electricity and sanitation and bounded as follows:
East by : Government Road West by : Lane North by: Gujarathi Chinnusa's House & Dhaktappa (now Kundanmal's house) South by : Government Road."
Therefore, the registered Lease Deed-Ex.P1, Rental Agreement-Ex.P2, Counter Foils of the Challan Book-Ex.P3, Pass Book-Ex.P4, the Notice issued pertaining to the termination of the tenacy- Ex.P5 dated 17-10-2011, the corresponding requests by the plaintiff to the defendant to accept about the renewal of the lease-Ex.P6 dated 30-4-2011, 13-7-2011- Ex.P7, reply given by the Bank-Exs.P8 to P10, another similar letter issued on 9-9-2011 as per 10 O.S.No.8585/2011 Ex.P11, copy of the legal notice - Ex.P12, postal acknowledgments- Exs.P13 and P14, are thereby formal documents.
10. P.W.1, in the oral evidence has stated that, the defendant to be his tenant from 2-8-1991 to 25-3-2013 and the last rate of rent paid from 1-8-2001 to 1-8-2011 t be Rs.26,856/- per month. Further, he had stated to have collected the rent at the rate of Rs.26,856/- per month at the rate of Rs.15/- per Square Feet from the 2nd defendant. the contention of minor repairs by the 2nd defendant, the details of which are not supported by any documents before the Court.
11. The evidence of D.W.1, the then Bank- Manager, was discarded, vide Order dated 2-11-2016 and the Affidavit for Chief-examination of the present Bank Manager was filed as D.W.2. This Manager has admitted that the lease period to have expired on 1-8-2011. He has also admitted about the receipt of the letters and the endorsement of the Bank, which have all been marked as Exs.P6 to P12. His admitted fact is that the location of the property is in B.V.K. Iyengar Road, which is prime location at Bengaluru.
11 O.S.No.8585/201112. The learned counsel for the plaintiff has filed Written Arguments and also a Memo, stating that there is a numerical and typographical error and has sought for granting mesne profits at the rate of Rs.90,000/- per month from the date of suit till 25-3-2013, which is the date on which the has handedover possession of the property to the plaintiff.
The possession evidenced from P.W.1 was handedover on 25-3-2013. The rate of the rent is Rs.26856/- per month from 1-8-2001 to 1-8-2011. The Bank has been the tenant from 2-8-1991 and renewed upto 28-11-2003 with effect from the earlier expiry date 1-8-2001. The defendant is said to have shifted to the new premises in June 2012. The suggestion put forth to P.W.1 has been "I do not know that the rent for the premises given to the Bank was fetching Rs.50/- per square feet after the termination of the tenancy." Whether the rate of the rent that would fetch after the termination of the tenancy could be the basis for mesne profits? Of-course, P.W.1 himself has admitted that one Ramlal to be his tenant in the other portion of the same building from 2005. The concerned rental agreement of that Ramlal is marked as Ex.P2 and it is dated 1-4-2011 and the rate of the rent of the schedule premises is Rs.9,000/- per month.
12 O.S.No.8585/201113. Ex.P5 is the letter dated 17-10-2011 and the lease was renewed that had expired on 1-8-2011. Much before the expiry of the lease deed dated 1-8-2011, the plaintiff has issued letter dated 30-4-2011-Ex.P6, Ex.P7 dated 13-7-2011 calling upon the defendant to communicate if interested to continue as the tenant. On 23-7-2011 and 8-8-2011 as per Exs.P8 and P10, the defendant has only issued the letters to the plaintiff stating to communicate if any decision taken regarding that matter. Therefore, from 13-7-2011 the plaintiff has been corresponding with the defendant to respond if at all the defendant was interested to continue as a tenant. Inspite of that, again on 9-9-2011 as per Ex.P11, the plaintiff was constrained to issue similar letter to Exs.P8 to P10. Ex.P5 and P12 are the same documents. Ex.P5 is the original and Ex.P12 is its copy. It is an admitted fact of D.W.1 that there is no reply given to Ex.P12.
14. Inspite of issuing so many letters as there was no response from the defendant, therefore, the plaintiff was constrained to issue the legal notice as per Ex.P5 and it shows that there has been legal termination of the tenancy. This notice is dated 17-10-2011 and the above suit is filed on 5-12-2011. The concerned postal acknowledgments are Ex.P13 and P14. All these documents are undisputed by the defendant.
13 O.S.No.8585/2011Therefore, from the above nature of documents, it means that the plaintiff being the landlord, was continuously corresponding with the defendant about continuation of the tenancy or not. There is no communication at all about that aspect from the defendant. But the defendant in the written statement has contended about the plaintiff to have been informed about alternative accommodation being attempting to be searched by the defendant. One more aspect is that it is only during the course of the arguments, the learned counsel for the defendant has contended that the defendant being statutory tenant, therefore, is not liable to pay the mesne profits as sought for by the plaintiff. About alternative accommodation, there are no documents produced by the defendant in terms of the written statement. Further, in regard to the statutory tenant defense, this has not been contended in the written statement.
At this juncture, it is necessary to refer the citation reported in AIR 2007 Kar. Page 46 {M.C.Mohammed vs. Smt.Gowramma & Ors.}, wherein Para 31 reads as under:
"31. However, in this case, the question is as to whether the appellant is only required to pay the rent agreed by ay of mesne profits till he delivers possession or he is 14 O.S.No.8585/2011 required to pay the damages for the period after the repeal of the Karnataka Rent Control Act? The Karnataka Rent Control Act is repealed by virtue of the Karnataka Rent Act, which came into force on 31-12- 2001. No doubt till 31-12-2001, the appellant continued to be a statutory tenant and in law was liable to pay only rent. Accordingly, we hold that the appellant is liable to pay the damages at the agreed rent till 31-12-2001. But for the remaining period, since the Rent Act is not applicable to the non-residential premises, having plinth area of more than 14 square meters, the appellant will not continue as a statutory tenant and said benefit is not available under the Rent Act. As such, for the remaining period from 1-1-2002 onwards, the appellant is not protected as a statutory tenant and is liable to pay the damages or mesne profits."
In the citation ILR 2004 Kar. Page 2864 {M/s.Khandelwal Brothers Co. Ltd., vs. G.S.Nisar Ahmed}, Para 9 reads as under:
"9. There is a drastic change in the legal definition of a statutory tenant in the Karnataka Rent Act 1999. The relevant provisions are extracted here under:15 O.S.No.8585/2011
Section 3(n) "Tenant" means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes-
(i) a sub-tenant;
(ii) any person continuing in
possession after the termination of his tenancy, but does not include any person to whom a licence as defined in Section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted.
The provisions of sub-Section (1) of Section 2 declare that the provisions of Chapter I to III and Chapters V to VIII of the Act shall apply to the areas mentioned in the First Schedule. Therefore Chapters I to III applies to the premises which are situate in Bangalore. Sub-Section (3) declares that nothing contained in the Act shall apply to the premises to which the Rent Act 1999 is not made applicable. The suit premises is a commercial premises and the area of the premises is more than 14 sq mts. Therefore, the Rent Act of 1999 would not be applicable to the premises in question. So much so the definition "tenant" under the Rent Act also would not be applicable to the premises in question. The position was different under the Rent Control Act of 1961. The provisions of Rent Act, 1999 are made applicable to the 16 O.S.No.8585/2011 pending cases and with effect from the date of Rent Act of 1999 coming into force, the Rent Control Act of 1961 is repealed. In that view of the matter, the legal fiction of a statutory tenant cannot be invoked in respect of a tenant not covered by Rent Act 1999 and such tenants would be governed only by the provisions of Section 106 and 111 of the Transfer of Property Act."
15. As noted above, the description of the suit schedule property goes to show it is measuring 1790.40 square feet built up area. There has been legal termination of the tenancy by the tenant as per Ex.P5 inspite of issuing repeated letters from 30-4-2011. It is the defendant who has not replied to any of those letters inspite of existence of lease deed-Ex.P2. In view of the citations stated supra, the benefit of the statutory tenant cannot be availed by the defendant.
Section 2 (12) of the C.P.C defines mesne profit as under:
"(12) "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due 17 O.S.No.8585/2011 to improvements made by the person in wrongful possession;"
It cannot obviously include the improvements made in the property by the person who is in its wrongful possession.
In this regard, the commentary on Order XX Rule 12 C.P.C. has been as under:
"Mesne profits- The expression 'mesne profits' is defined in S.2(2), as meaning those profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
Therefore, the claim of the plaintiff at the rate of Rs.90,000/- per month as mesne profits, cannot be awarded.
16. The defendant bank has continued the possession of suit premises in spite of termination of tenancy-Ex.P5. At the same time, it is the defendants who have incurred expenditure for minor repairs. The suit premises was taken for rent for commercial purpose. The situation of the suit property is in the prime location area which is 18 O.S.No.8585/2011 admitted by D.W.1. So, when all these factors are taken into consideration and the same is read with the scope of mesne profits, in the given facts and circumstances of the case, it is appropriate to award mesne profits at the rate of Rs.35,000/- per month from the date of the suit till the date of possession 25-3-2013. This is in view of the rate of rent that was paid in 2011 as Rs.26,856/-. So, for the next two years, the rate of rent would have been increased in case the defendant had continued its tenancy. The rate of rent is to be considered for granting the mesne profits. In the given facts and circumstances of the case, therefore, this Issue is accordingly answered.
17. Issue No.4 : In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed with costs as follows:
The plaintiff is entitled for the mesne profits at the rate of Rs.35,000/- per month from the date of the suit - 05.12.2011 till the date of delivery of possession
- 25.03.2013.19 O.S.No.8585/2011
The Memo dated 10.04.2013 filed by the counsel for the plaintiff shall form part and parcel of the Decree.
Draw Decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 29th day of June, 2017.) (VELA.D.K.) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.20 O.S.No.8585/2011
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 M.M.Kodandaram List of witnesses examined for defendants:
D.W.1 S.A.Bhole D.W.2 G.S.Shan
List of documents exhibited for the plaintiff:
Ex.P1 Registered Lease Deed dated 28-11-2003 between the plaintiff and the defendants Ex.P2 Rental Agreement dated 1-4-2011 Ex.P3 Counter Foils of the challan book Exs.P3(1) Counter Foils of challan book of to P3(15) transactions between plaintiff and another tenant Ex.P4 Plaintiff's Pass Book Exs.P5 to Letters dated 17-10-2011, 30-4-2011 and 13-7-2011 issued by plaintiff to P7 Defendants Exs.P8 to P10- Replies by Defendant to plaintiff Ex.P11 Letter dated 9-9-2011 issued by plaintiff to Defendant Ex.P12 Legal notice dated 17-10-2011 issued by plaintiff's Advocate to the Defendant.
Ex.P13 & P14 - two RPAD cards 21 O.S.No.8585/2011 List of documents marked for defendants:
Nil (VELA.D.K.) XXII Addl. City Civil & Sessions Judge, Bengaluru.22 O.S.No.8585/2011
29-6-2017 P. N J R D1 - Exparte D2 -S R N Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
Order Suit of the plaintiff is hereby decreed with costs as follows:
The plaintiff is entitled for the mesne profits at the rate of Rs.35,000/- per month from the date of the suit - 05.12.2011 till the date of delivery of possession - 25.03.2013.
The Memo dated 10.04.2013 filed by the counsel for the plaintiff shall form part and parcel of the Decree.
Draw Decree accordingly.
XXII A.C.C. & S.J., Bengaluru.