Bangalore District Court
Sri.Ajjappa vs M/S.Reliance Corporate It Park Ltd on 25 November, 2022
IN THE COURT OF LXXXIX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU. (CCH-90)
Present: Sri.S.J.Krishna, B.Sc., LL.B.,
LXXXIX Addl.City Civil &
Sessions Judge, Bengaluru.
Dated: 25th NOVEMBER 2022
Com.O.S.No.287/2021
PLAINTIFF : Sri.Ajjappa,
S/o Late Chikkasiddegowda,
Aged about 59 years,
R/at No.337, 3rd Floor, 9th Main,
4th Cross, Dollors Colony,
J.P.Nagar 4th Phase,
Bengaluru-560 078.
(By M/s.M.L.Gowda & Associates,
Advocates)
-Vs-
DEFENDANT : M/s.Reliance Corporate IT Park Ltd.,
Office at.Relience Corporate Park,
Building No.4, TTC Industrial Area,
Thane-Belapur Road, Ghansoli,
Navi Mumbai-400 701.
Also at,
Local Office At.62/2,
Richmond Road, Bengaluru-560 025.
Represented by its authorised signatory,
Mr.Prashanth.C.
(By Sri.Sanjanthi Sajan Poovayya, Advocate)
/2/
Com.OS.287/2021
Date of Institution of : 12.04.2021
suit
Nature of suit : Money Suit
(suit on pronote, suit for
declaration and
possession suit for
injunction, etc.,)
Date of commencement : 15.09.2021
of recording of evidence
Date of judgment : 25.11.2022
Total duration : Year/s Month/s Day/s
01 07 13
(S.J.KRISHNA)
LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU.
(CCH-90)
JUDGMENT
The plaintiff has filed this suit against the defendant praying the Court to pass judgment and decree :-
a) Directing the defendant to pay a net sum of ₹.
4,80,214/- (Rupees four lakhs eighty thousand two hundred fourteen only) towards arrears of rent and other dues till 18.03.2021 and subsequent months' rent from December 2020 to 18th March 2021, with interest @ 18% per annum till the realization of the said amount. (as per para 8 of this plaint);
b) Consequentially directing the Defendant to pay a sum ₹.3,000/- (Rupees three Thousand) per day from 12.10.2020 /3/ Com.OS.287/2021 i.e from the date of termination of tenancy till the date of delivery of keys of the schedule premises on 18.03.2021 as per key send by the defendant through letter dated 08.02.2021 towards damages;
c) Directing the defendant to registration of cancelation of lease deed dated 21.10.2014 as his cost;
d) Awarding pendent lite interest and future interest till date of realization @ 18% P.A. as detailed in paragraph above;
e) Awarding cost of the suit and such other reliefs as this Hon'ble Court may deems fit and proper under the circumstances of the case, in the interest of justice and equity.
The summary of the case of the plaintiff is as under:
02. The Plaintiff is the absolute owner of property bearing No. Municipal No.3, BBMP PID No.57-265 (old PID No.5-4-1-1B-
1C) Situated At 15th Cross, Sarakki Gate, Kanakapura Main Road, J.P.Nagar 1st Phase, Bangalore-560078, measuring East to West: 15 ft and North to South: 35 ft total admeasuring of 525 sq.ft, of build up area (504 Sq Ft Of Carpet area) in the ground floor, which is more fully described in the lease agreement.
03. The Defendant is the tenant under him in respect of the schedule property, the Defendant is running the business /4/ Com.OS.287/2021 of selling products such as consumer electronics information technology, telecom, mobile, internet, satellite net work and accessories, software and related services "" in the name and style of " Digital Express Mini schedule premises, he entered into an registered Lease Deed dated: 21.10.2014 which is registered as Document No.JAY- for a period -06007-2014-15 in CD No.JAYD210 Book-I dated 30.10.2014 in J.P.Nagar Sub Registrar, Bangalore for a duration of 10 years commencing from 05.10.2014, effective from 05.10.2014, on a monthly rent of ₹.40,000/- (Rupees Forty Thousand only) per month subject to escalation of @ 5% every year on the last paid rent, and payment of an interest free refundable security deposit (IFSRD) of ₹.4,00,000/- (Rupees four lakhs Only), the tenancy being the English calendar month.
04. The Defendant is a persistent and chronic defaulter in the matter of payment of rent; he was not regular in payment of rent to the Plaintiff. The Plaintiff aged person and he and his family members are only depending on the rents accrued from the schedule property. Due to default on the payment of rent by the Defendant, the Plaintiff has demanded to the Defendant orally requesting the Defendant to pay the rent and also requested the Defendant to vacate the premises, since defendant is irregular in payment of rent. In spite of oral request by the Plaintiff the Defendant has not chosen to pay /5/ Com.OS.287/2021 the consecutive five month's rent. Hence, on 12.08.2020 a legal notice has been issued calling on the Defendant to pay the arrears of rent and also to vacate the premises. The notice also demanded issue of TDS Certificate and also claiming damages for the schedule premises. The said notice has been duly served on the Defendant at the Local address and also Main Address.
05. According to the lease deed dated 21.10.2014 lease period is 10 years and the Defendant has not paid the agreed rent for consecutive 5 months. Defendant was evasive and un- available whenever the Plaintiff goes to the premises to contact the defendant. Messages left for contact, are never responded to and defendant also avoids phone calls of Plaintiff, for the purpose of avoiding payments of rents due.
06. According to the lease deed data 21.10.2014, the Defendant has not shown any interest in payment of rent for 5 consecutive months and also not vacating the premises. The legal notice dated: 12.08.2020 is under section 106 of Transfer of Property Act calling upon the Defendant to following effect, a. Terminating the tenancy from 12.10.2020.
b. Calling upon the Defendant to deliver the vacant possession of the schedule premises.
c. Calling upon a defendant to pay the additional damages of ₹. 3,000/- per day in /6/ Com.OS.287/2021 case, he failed to vacate the premises as per the terms of the notice dated 12.08.2020.
d. Calling upon the defendant to pay the arrears of rent and damages.
07. In spite of the receipt of the notice the defendant has failed to pay the arrears of rent and also failed to vacate the premises. The defendant was in possession of the schedule premises still 18.03.2021. He was in illegal occupation over the schedule premises from the date of termination of tenancy i.e. from 12.10.2020 to 18.03.2021 as per terms of the legal notice. The defendant is due as on 18.03.2021 date of filing this suit, ie., arrears of rent as follows.
a. from 01.03.2020 to 30.09.2020 for a 3,21,615/- period of 7 months @ ₹. 45,945/- per month b. From 01.10.2020 to till 04.10.2020 5,928/- 45,945/- PM for 4 days c. Arrears of Rent from 05.10.2020 to 1,44,729/- 04.01.2021 48,243/- P.M. completed 26,456/-
months 3 (₹.45,945 + 5% as per Agreement) 96,486/- 05.01.2021 to 17.01.2021 @ 48,243/-
10,000/-
At 48243/-
18.01.2021 to 18.03.2021 @ 48,243/-
Notice fee
Sub Total 6,05,214/-
Further notices Fee 15,000/-
Interest on rental arrears from
respective dates 01.03.2020 to
30.09.2020 on ₹.45,945/- PM.33,470/-
/7/ Com.OS.287/2021 Interest on rental arrears @ 48,243 from 05.10.2020 to 18.03.2021 7530/-
Total Interest of ₹.40000/- (calculated up to Completed month) 40,000/-
External damages of premises 2,00,000/- admitted by the defendant.
20,000/-
Electricity bill arrears
08. The defendant is liable to pay a sum of ₹. 8,80,214/- (Rupees Eight lakhs Eighty thousand two hundred fourteen only) since the said tenancy is for commercial purpose, the Defendant is also liable to pay interest @18% p.a. on the said amount from 18.03.2021 till the realization of the said amount as per the first notice dated 12.08.2020, issued by the plaintiff from respective due this date.
09. The plaintiff further submits that, As per the legal notice dated: 12.08.2020, the defendant herein admitted the receiving of the said legal notice and issued reply/notice dated 02.12.2020 and allegedly contended that, the said lease deed dated 21.10.2014 was terminated as per Defendant's own alleged termination notice dated 21.06.2020 and further allegedly claiming that, after the alleged adjustment stated in the said notice dated 02.12.2020, the plaintiff herein is liable to refund an amount of ₹.1,19,114/-. The reply notice further contended that, the Keys of the leased premises were /8/ Com.OS.287/2021 available at their office at, 2nd Floor, Vijayanagar TIMC Bus Stand, Bangalore, and that, Plaintiff may collect the same during office hours by giving them 24 hours prior Notice. The said reply notice is legally untenable and with false facts.
10. The contention taken by the defendant is against the terms and conditions of the Lease deed dated 21.10.2014. The plaintiff issued a further notice to the defendant on 14.12.2020. The further Notice was duly served to the defendant on 16.12.2020 and 18.12.2020 to both the address mentioned in the RPAD Covers respectively, To evidence that, the plaintiff has here with produced the further Notice dated 14.12.2020 issued by the plaintiff through his counsel, 2 Postal receipts, and Certified copy of the Track Consignments 2 in numbers issued by the postal Deportment and postal acknowledgment dated 16.12.2020 for service of notice dated 14.12.2020. As per the said further notice issued by the plaintiff specifically denied the alleged termination of lease deed dated 21.10.2014 as per the alleged notice dated 21.06.202018 claimed to have been sent by the defendant and also specifically contended that, said notice dated 21.06.2020 is not received by the plaintiff in any manner and whatsoever and also further contended that the defendant are reckoned tentatively as follows:- As in paragraph 8 above, As ₹.8,80,214/-, The interest free security deposit is refundable /9/ Com.OS.287/2021 to the Defendant on vacation, is adjudicated to this amount and net amount due is tentatively reckoned as ₹.4,80,214/- (Rupees four lakhs eighty thousand two hundred fourteen only).
11. It was further contended that, Further rent from 05.12.2020 @ ₹.48,243/- P.M. or any revised rent as per agreement if so applicable, due to further delay by defendant, till the date of vacation actually, will also be due. And further directed the defendant that, they are liable to pay a sum of ₹.7,48,513/- till 04.12.2020 and as the said tenancy is for commercial purpose. The amount so claimed was tentative as on that date. They are also liable to pay interest @18% p.a. on the said arrears of rent from the respective due date till the realization of the said amount. And further caution as per the said further notice, the defendant has been deemed as unauthorized occupant over the schedule premises after 12.10.2020 as per original notice issued by the plaintiff dated 12.08.2020. The defendant has no right to continue to occupy the premises without any written permission of plaintiff after the issuance of legal notice dated 12.08.2020 terminating the tenancy.
12. As per the Commercial Courts Act, on 21.01.2021 the plaintiff approached District Legal Service Authority /10/ Com.OS.287/2021 Bangalore Urban and filed Rule 3 (1) application and as per the claim of the plaintiff notice were sent for Mediation and the said notice was served to the defendant and issued the reply notice dated 08.02.2021.
13. The plaintiff further submits that as per the said reply Notice Dated 14.12.2020 the defendant was sent further notice dated 08.02.2021 and untenable reply was received by the plaintiff, along with the said reply, the Defendant enclosed the keys of the rolling shutter pertaining to the leased premises of 5 big keys and 3 small keys in respect of the leased schedule premises and the said letter and keys were received by the plaintiff on 10.02.2021. The reply Notice dated 08.02.2021 and its cover dated 09.02.2021 and also Enclosed cover for sending Keys as stated above are here with produced.
14. As per the said reply notice dated 08.02.2021 the plaintiff issued further notice dated 15.02.2021 and report the pendency of the Mediation PIM No.95/2021 and also further directed the defendant to come prepared with concrete proposal for joint inspection of premises, formal exchange of letters of handing over / taking over of premises in and fix the schedule for cancellation of lease deed. If not the defendant shall be responsible for all cost and consequences. The Notice /11/ Com.OS.287/2021 Dated 15.02.2021 and Two postal receipts and its acknowledgment and two track consignment and its postal cover are herewith produced.
15. After several notices issued by the District Legal Service Authority Bengaluru Urban for appearance of Defendant on 19.02.2021, 04.03.2021 15.03.2021 and 30.03.2021 respectively , the Authority has issued Non-starter Report dated:06.04.2021 as per 3(4) and 3(6). The said Non Starter report dated 06.04.2021. The plaintiff reserves to claim difference between the rent as per lease deed and market rent, if the latter is found to be higher than the former. Since the defendant was squatting upon the schedule premises, the defendant is liable to pay damages of ₹. 3,000/- per day till 18.03.2021, since he was in illegal occupation over the schedule premises from the date of termination of tenancy i.e. from 12.10.2020 as per terms of the legal notice.
16. The defendant has not paid electricity charges to the concerned deportment and defendant is in arrears of the same as per bill dated 17.09.2020, the defendant is in arrears of electricity bill amounting to ₹.10870/- (Rupees ten thousand eight hundred seventy only) and subsequent bill dated 17.10.2020 of ₹.437/- and subsequent bill dated 17.11.2020 ₹.839/- (Rupees Eight Thirty Nine only) and also ASD is liable /12/ Com.OS.287/2021 to be paid by the defendant as per bill dated 17.11.2020 amount of ₹.4010/- bill in December 2020, January, February and March 2021, Rs, 51,000/- Rs, 51,000/- and Rs 51,000/- respectively, The total arrears of electricity bill of ₹.20,000/- (Rupees twenty thousand Only) is liable to paid by the defendant.
17. That the cause of action for the suit arose on 12.10.2020 when the tenancy of the Defendants is terminated as per the legal notice issued terminating the tenancy 12.02.2020 and calling upon the defendant to vacate the premises, on 12.10.2020 when the Defendant occupation is illegal and liable to pay the damages on squat upon the schedule premises without payment of rent and damages subsequent dates as per notice correspondence between the plaintiff and defendant. And also application dated 21.01.2021 filed by the Plaintiff to the DLSA Bengaluru and after the issuance of Non Starter Report 06.04.2021. This amount of internal damages is reckoned at ₹.2,00,000/- by the plaintiff, since the defendant has not came forward for joint inspection and chose to send the keys by post.
18. The schedule property is situated at J.P.Nagar 1 st Phase, Bangalore and this Hon'ble Court has got territorial jurisdiction to entertain the suit for eviction and damages.
/13/ Com.OS.287/2021
19. Wherefore the Plaintiff prays that this Hon'ble court be pleased to grant the reliefs prayed in the plaint.
20. In spite of service of summons to head office of the defendant through e-mail and summons to local office of defendant through RPAD, the defendants remained absent and the service was held sufficient, the defendants were placed exparte.
21. The Plaintiff adduced his evidence as PW1 and exhibited Ex.P1 to Ex.P18. After hearing the arguments the case was posted for judgment to 29.09.2021.
22. On 27.09.2021, the defendants appeared through their advocate and filed I.A.No:1 u/s.151 CPC; I.A.No:2 under Order IX Rule 7 r.w.s. 151 CPC. After contest the I.A.No:2 was allowed vide order dated:24.11.2021. The Written statement filed by the defendants was taken on record.
The summary of written statement of defendants is as follows:
23. It is submitted that vide an order dated September 05, 2019, the Hon'ble National Company Law Tribunal, Ahmedabad sanctioned a Scheme of Merger, whereby 'Reliance Corporate IT Park Limited' was vested into 'Reliance /14/ Com.OS.287/2021 Digital Platform and Project Services Limited' as a going concern. Thereafter, the name of Reliance Digital Platform and Project Services Limited' was changed to Reliance Projects and Property Management Services Limited' with effect from April 04, 2020. A copy of the order of the NCLT dated September 5, 2019 and certificate of incorporation pursuant to change of name is produced herewith. For Reliance Projects & Property Management Services Ltd., At the outset, Defendant No.1 states that the suit is false, frivolous and vexatious and deserves to be dismissed with cost. At the further outset, all the statements, averments and contentions in the plaint are denied, save and except those which are specifically admitted herein. Nothing shall be deemed to be admitted for want of specific traversal. The Plaintiff has not approached this Hon'ble Court with clean hands and has concealed material facts to mislead the Hon'ble Court. Hence, the Plaintiff is not eligible for any consideration, equitable or otherwise.
24. It is submitted that the Plaintiffs have undervalued the suit for the purposes of payment of court fees so as to avoid payment of adequate court fees. Consequently, the reliefs sought by the Plaintiffs can neither be adjudicated nor can be granted by this Hon'ble Court. The prayers have not been drawn up as required under the Commercial Courts Act, 2015 this has been done in order to avoid paying appropriate /15/ Com.OS.287/2021 court fee. As per the Commercial Courts Act, 2015, the amount claimed by the Plaintiff as on the date of the plaint should be calculated and prayed for and it follows as a necessary sequitur that court fee has to be paid on such sum, including the claim of interest as on the date of the suit. Defendant craves leave to file a separate application under the Karnataka Court Fees and Suits Valuation Act in respect of undervaluation and incorrect court fee.
25. Plaintiff is guilty of suppressio veri and suggestio falsi. Plaintiff has suppressed the termination notice dated 21.06.2020 issued by the Defendant terminating the lease deed dated 21.10.2014 executed between the Plaintiff and the Defendant. The Plaintiff has wantonly not produced the same before this Hon'ble Court with a false intent to seek unjust enrichment. The reliefs sought by the Plaintiff are liable to be dismissed on this ground alone.
26. Further, the Plaintiff has not provided the alternate local address of the Defendant for service of summons. It is within the knowledge of the Plaintiff that the Defendant Company operates mostly from its local address situate at 2 nd Floor, TTMC Bus Stand, Vijayanagar, Bengaluru - 60040. The same had been communicated to the Plaintiff on multiple occasions and even vide legal notice dated 02.12.2020, the /16/ Com.OS.287/2021 same has been stated. However, with malafide intention, Plaintiff has not provided the local address of the Defendant. Thus, the suit is liable to be stayed until the local address of the Defendant is furnished by the Plaintiff.
27. The Plaintiff has concocted false and raised frivolous claims against the Defendant so as to avoid payment of damages and compensation, due and payable to the Defendant. The Plaintiff is not entitled to any amount alleged to be due or outstanding from the Defendant and in fact, it is the plaintiff who is liable to refund the Interest Free Security Deposit for Reliance Projects & Property Management Services Ltd. Authorizsed Signatory made by the Defendant at the time of execution of the Lease Deed dated 21.10.2014. For this reason, as well, the reliefs sought by the Plaintiff ought to be dismissed.
28. Defendant is a Company within the meaning of the Companies Act, 2013 having its registered office at having its registered office at 101, Saffron, near Center point, Panchwati 5 Rasta, Ambawadi, Ahmedabad, Gujrat 380 006 and its local office at 2nd Floor, TTMC Bus Stand, Vijayanagar, Bengaluru 560040.
/17/ Com.OS.287/2021
29. Defendant entered into a registered lease agreement dated 21.10.2014 ("Lease Deed") with the Plaintiff with respect to the immovable property having 525 square feet of built-up area (504 square feet of carpet area) in ground floor of the building bearing Municipal No.3, BBMP PID No. 57- 65-3 (Old PID No. 5-4-1-1B-1C), situated at 15th cross, Sarakki Gate, Kanakapura Main Road, J.P Nagar, Bengaluru - 560 078 "Schedule Property") for a period of ten years. Since the Plaintiff was about 60 years of age, most of the negotiations and discussions pertaining to the Lease Deed and even discussions thereafter were effected through his son Mr. Rakesh Ajjappa. The email address of the Plaintiff's son ([email protected] and [email protected]) was provided for the purposes of communication and was therefore available in the records. In terms of the Lease Deed, the Defendant made a payment of INR 4,00.000 Four Lakhs Only) to the Plaintiff as Rent and Interest Free Security Deposit ("Security Deposit") and the monthly rent was fixed at INR 40,000/- (Rupees Forty Thousand Only) with escalation @ 5% for every year on the last paid rent.
30. In terms of the Lease Deed, the Defendant duly paid rents to the Plaintiff until 31.03.2020, which is also not disputed by the Plaintiff.
/18/ Com.OS.287/2021
31. When such being the case, in the month of June 2020, due to inter alia the unprecedented Covid-19 pandemic and business compulsions Defendant addressed an email dated 21.06.2020 to the Plaintiff (email address as provided by the Plaintiff). Vide the email, Defendant terminated the Lease Deed with a 2 (two) months' notice i.e., termination effective from 20.08.2020. Further, in this letter, the Defendant requested the Plaintiff to refund the Rent and Interest Free Security Deposit on or before the expiry of the notice period along with any money/deposit/advance paid by us on or before the expiry of the notice period subject to settlement of all mutual dues and settlement of accounts.
32. Subsequently, the Defendant duly vacated the Schedule Property before 20.08.2020 and contacted the Plaintiff multiple times to hand over the keys of the Schedule Property. However, for the reasons best known to the Plaintiff, the Plaintiff evaded to receive/collect the keys.
33. In addition to the Rent and Interest Free Security Deposit of INR 4,00,000/- (Rupees Four Lakhs Only), the Defendant made the following adjustable payments to the Plaintiff. Sl. No. Payment Purpose i. 1. ii. 6 iii. INR 10,080/- Power deposit. INR 76,577/- Ad hoc advance paid until June to the Defendant. 2020. INR 19,597/- Excess TDS amount.
/19/ Com.OS.287/2021
34. The Defendant duly intimated the Plaintiff before vacating from the Schedule Premises. At that stage, the Plaintiff and Defendant even discussed about the refund of the Security Deposit after deducting inter alia the rent payable for the period from April 2020 to August 2020 and restoration cost of INR 1,50,000/- as requested for by the Plaintiff. Although, the Schedule Property did not require any restoration, as the Defendant requested for carrying out minor beautifications for renting out the Schedule Property to others, in good faith, the Defendant agreed to pay the same. Thus, as per the understanding between the parties, the Plaintiff was to refund a sum of INR 1,19,114/- (Rupees One Lakh Nineteen Thousand One Hundred and Fourteen Only).
35. The detailed summary and break-up is as below:
Sl.No. Explanation Amount
I. Rent for the period INR1,39,136
01.04.2020 to
20.06.2020
II. Rent for the notice period INR1,01,004
21.06.2020 to
20.08.2020
III. Restoration Cost INR1,50,000
Total INR3,87,140
/20/
Com.OS.287/2021
36. Payments to be made by the Defendant to the Plaintiff.
Sl.No. Explanation Amount
I. Rent and interest free INR4,00,000
security deposit
II. Ad hoc advance paid until INR 76,577 June 2020 III. Power Deposit INR 10,080 Total INR5,06,254
37. Therefore, the pending amount payable by the Plaintiff is the excess difference amount between table (i) and
(ii) above mentioned i.e., INR 1,19,114/- [5,06,254 - 3,87,140].
38. When things stood thus, the Defendant was shocked and surprised to receive a false and frivolous notice dated 12.08.2020 on behalf of the Plaintiff. This notice was said to For Reliance Projects & Property Management Services Ltd. Be issued under Clause 15 of the Lease Deed. The notice further stated that the Lease Deed was purportedly terminated/ revoked alleging that the Defendant had not paid the monthly rent from March 2020. The notice also called upon the Defendant to pay an amount of INR 2,29,726.30/- (Rupees Two Lakhs Twenty-Nine Thousand Seven Hundred and Six Rupees and Thirty Paise Only) as arrears of rent, failing which it was alleged that the Defendant would be liable to pay damages at INR 3000/- per day from the effective date for the purported unauthorized occupation of the Schedule Property.
/21/ Com.OS.287/2021
39. At the outset, the said notice is illegal and unlawful and not issued in terms of the Lease Deed. It is submitted that the Lease Deed contemplates issuance of a notice under Clause 15 if at any time the rent remains unpaid for a consecutive period of 2 months. It further states that if such default is not remedied within a period of 30 days from the date of service of a notice in writing by the Lessor to the Lessee, it shall be lawful for the Lessor to terminate the Lease Deed thereafter. Therefore, the alleged notice is invalid and the Plaintiff has failed to issue a notice of termination. This goes to the root of the dispute and renders the suit not maintainable. Without prejudice to the aforesaid, it is further submitted that the issuance of the aforesaid legal notice by the Plaintiff was nothing but an afterthought of the Plaintiff to unlawfully enrich at the expense of the Defendant who had in good faith notice to the Plaintiff.
40. Upon receipt of the Plaintiff's frivolous notice, the Defendant had multiple discussions with the Plaintiff and his son Mr. Rakesh. The Defendant addressed an email dated 08.10.2020 to Mr. Rakesh requesting once again for refund of the balance of the Security Deposit being INR 1,19,114/- (Rupees One Lakh Nineteen Thousand One Hundred and Fourteen Only) from the Plaintiff. This email was in fact addressed on the same trail email wherein the termination of /22/ Com.OS.287/2021 the Lease Deed was communicated by the Defendant to the Plaintiff on 21.06.2020. In response, Mr. Rakesh (on behalf of the Plaintiff) addressed a reply requesting for the TDS certificates for the previous year (2019-2020) and the rent transaction details from November 2019. Further, in this email, the Plaintiff showed inclination to close the issue as soon as possible. As requested by the Plaintiff, the Defendant vide email dated 09.10.2020 shared the account statements and TDS certificates. Print out of the email chain consisting of the email dated 08.10.2020 addressed by the Defendant at 4:10 PM, email dated 08.10.2020 addressed by the Defendant at 10:10 PM, and email dated 09.10.2020 addressed by the Defendant at 3:07 PM are attached herewith (colly).
41. The Defendant did not hear anything from the Plaintiff thereafter. Multiple attempts to hand over the keys were in vain. The Plaintiff deliberately avoided the receipt of the keys. Therefore, the Defendant formally responded to the Plaintiff's 10 legal notice vide a letter dated 02.12.2020 bringing into light the true and correct facts. In this letter, the Defendant specifically called upon the Plaintiff to collect the keys to the Schedule Property from its local office at 2nd Floor, TTMC Bus Stand, Vijayanagar, Bengaluru -560040 and also, provided contact details of its employee to coordinate for collection of the keys. It is submitted that in hindsight, it is /23/ Com.OS.287/2021 apparent that the intention of the Plaintiff to not accept/receive the keys to the Schedule Property is to attempt at illegally extracting money from the Defendant.
42. Subsequently, the Plaintiff through his Advocate issued a notice under dated 14.12.2020 falsely denying the receipt of the termination notice dated 21.06.2020. Further, the Plaintiff dishonestly denied the payment of Ad hoc advance, power deposit and excess TDS amount and baselessly called upon the Defendant to pay INR 10,48,513/- (Rupees Ten Lakhs Forty- eight Thousand Five Hundred and Thirteen Only). This letter is utterly false, baseless, and issued with mala fide intentions and ulterior motives.
43. The Defendant responded to the unfounded notice issued by the Plaintiff vide its letter dated 08.02.2021 and denied all frivolous averments made by the Plaintiff. Vide the letter dated 08.02.2021, the Defendant also sent the keys of the Schedule Property to the Plaintiff. Also, the Defendant once again called upon the Plaintiff to refund the balance sum for Reliance Projects & Property of INR 1,19,114/- (Rupees One Lakh Nineteen Thousand One Hundred and Fourteen Only).
44. The Plaintiff, acknowledging the receipt of the keys to the Schedule Property, vide letter dated 15.02.2021 issued a /24/ Com.OS.287/2021 false and untenable response to the Defendant's demand of the Security Deposit. The notice also stated that a meeting was scheduled with the DLSA, Bangalore City Civil Court Complex on 19.12.2021. The Defendant thereafter appeared before the DLSA, Bangalore City Civil Court Complex and requested for time to file its response. Upon the instructions received from the DLSA, Defendant responded vide email dated 30.03.2021, and stated the true facts including the termination of the lease deed by the Defendant and amounts refundable by the Plaintiff.
45. As things stood thus, an employee of the Defendant received an email dated 01.09.2021 at 6:43 PM from this Hon'ble Court, informing about the captioned case and notifying the Defendant to appear before the Hon'ble Court on 04.09.2021. The intervening weekend between receipt of summons and the date of hearing in the matter led to a delay of a few days in communicating the summons and the suit particulars from the legal team of the Defendant to the counsel. The email summons did not contain suit papers. Therefore, a few days were taken to obtain suit papers by filing a third-party affidavit.
46. Thereafter, Defendant learnt through this Hon'ble Court's website came to know that the Defendant has been /25/ Com.OS.287/2021 placed exparte in this suit and the suit is reserved for judgment on 29.09.2021, without hearing the Defendant. In light of this, the Defendant is approaching the Hon'ble Court and filing the instant written statement hurriedly. Due to the extreme urgency with which the written statement is being filed, Defendant has not been able to produce documents. Defendant craves leave to produce documents separately. In the circumstances, the Defendant further reserves liberty to amend this written statement/ file supplemental pleadings/ produce additional documents.
47. In this background, it is amply evident that the Plaintiff is trying to illegally extract money from the Defendant. As such the Plaint is nothing but a suppression of material particulars to gain illegally and cause wrongful loss to the Defendant.
48. Without prejudice to anything stated herein, the Defendant submits the following paragraph-wise traversal, in seriatim. Nothing shall be deemed as an admission for want of specific traversal. The contents of the paragraphs under reply are matters of record and do not require specific traversal. It is denied that the Defendant is a persistent and chronic defaulter in the matter of payment of rent. It is denied that the Defendant was not regular in payment of rent to the Plaintiff. It /26/ Com.OS.287/2021 is denied that the Plaintiff and his family members are depending only on the rents accrued from the Schedule the Plaintiff orally Property. It is denied that demanded/requested the Defendant to pay the rent due. It is further denied that the Plaintiff requested the Defendant to vacate the premises alleging that Defendant is irregular in payment of rent. It is denied that the Defendant has not paid rent for consecutive five months. It is submitted that the notice dated 12.08.2020 issued on behalf of the Plaintiff by his Advocate is false, illegal, unjustifiable and implausible. It is denied that the notice was served on the primary local address of the Defendant.
49. It is denied that the Defendant has not paid rent for consecutive five months as the Defendant had terminated the Lease Deed in the month of June 2020 and requested the Plaintiff to appropriate the Security Deposit for the purposes of realization of rent until the month of August 2020.
50. It is denied that the Defendant is making unavailable whenever the Plaintiff goes to the premises to contact the Defendant. it is denied that the messages left for contact are not responded to by the Defendant. It is denied that the Defendant avoided phone calls of the Plaintiff. On the contrary, it is submitted that after vacating the Schedule Property, the Plaintiff was evading/avoiding the Defendant when Defendant attempted to return the keys at multiple occasions.
/27/ Com.OS.287/2021
51. It is denied that the Defendant has not shown any interest in payment of rents for consecutive five months. It is submitted that the Defendant vacated the Schedule Property before 20.08.2020. As per the understanding between the parties, the Defendant has duly paid rents till 31.03.2020 and the rents for the months 01.04.2020 till 21.08.2020 was deductible by the Security Deposit made by the Defendant. It is submitted that the Defendant duly vacated the premises before 20.08.2020. The notice dated 12.08.2020 issued by the Plaintiff is false and illegal. It is denied that the notice dated 12.08.2020 was issued under Section 106 of the Transfer of Property Act.
52. It is denied that the Defendant failed to pay arrears of rent and that it failed to vacate the premises. The Plaintiff vacated the Schedule gave some Property before 20.08.2020. However, Plaintiff gave some frivolous reason or other to not collect/receive it from the Defendant. It is submitted that the Defendant terminated the Lease Deed with two months' notice vide notice dated 21.06.2020 and vacated the Schedule Property before 21.08.2020. It is denied that the Defendant is an illegal occupant of the Schedule property. It is denied that the tenancy was terminated on 12.10.2020. It is submitted that the tenancy was terminated vide email dated 21.06.2020 with effect from 20.08.2020 by the Defendant. The table /28/ Com.OS.287/2021 shown in the paragraph under reply is false, baseless, contrary to the record and agreement between the parties.
53. It is denied that the Defendant is liable to pay a sum of INR 8,80,214/- (Rupees Eight Lakhs Eighty Thousand Two Hundred and Fourteen Only). It is denied that the Defendant is liable to pay rent @ 18% from 18.03.2021. It is submitted that the Defendant terminated the Lease Deed vide notice dated 21.06.2020 and therefore, the illegal notice dated that 12.08.2020 issued by the Plaintiff is baseless, unjustifiable and mala fide.
54. The Plaintiff admits that the Defendant offered/ attempted to return the keys to the Schedule Property vide notice dated 02.12.2020. Therefore, the contention of the Plaintiff that the Defendant was in possession of the Schedule Property till 18.03.2021 is false and is an attempt by the Plaintiff to illegally extract money from the Defendant. It is denied that the contents of the letter dated 02.12.2020 are false and untenable.
55. It is denied that the contention of the Defendant is against the terms of the Lease Deed. The contents of the notice dated 14.12.2020 produced along with the plaint is contrary to facts, illegal and with a sole mala fide intention to /29/ Com.OS.287/2021 illegally extract money from the Defendant. It is denied that the Defendant is liable to pay rent after 21.08.2020.
56. It is submitted that the Defendant has not been served with a copy of Annexure M.
57. It is denied that the notice dated 08.02.2021 issued by the Defendant is untenable. The Plaintiff admits that the receipt of the keys on 10.02.2021, therefore, the contention of the Plaintiff that the Defendant was in possession of the Schedule Property till 18.03.2021 and the reliefs sought by the Plaintiff are illegal and is with a sole intention to illegally extract money from the Defendant.
58. Upon receipt of the notice from the DLSA, the Defendant put across its response vide mail dated 30.03.2021. Without prejudice to the aforesaid, the contents stated in the notice dated 15.02.2021 are wholly denied. It is denied that the Defendant is liable to pay an amount of INR 4,80,214/- or any other sum of money to the Plaintiff.
59. The Plaintiff is not entitled to claim any difference of rent. It is denied that the Defendant was squatting upon the Schedule Property. It is denied that the Defendant is liable to pay damages of INR 3000/- (Rupees Three Thousand Only) per /30/ Com.OS.287/2021 day. It is denied that the Defendant was in illegal occupation of the Schedule Property. It is submitted that the Defendant terminated the Lease Deed with two months' notice vide notice dated 21.06.2020 and vacated the Schedule Property on 21.08.2020.
60. It is denied that the Defendant has not paid electric charges. It is denied that the defendant has arrears of electricity bills. It is denied that the defendant has arrears of electricity bill for an amount of INR 10,870/- (Rupees Ten Thousand Eight Hundred and Seventy Only). It is denied that the defendant is liable to pay bill dated 17.10.2020 for an amount of INR 437/- (Rupees Four Hundred and Thirty- Seven Only). It is denied that the defendant is liable to pay bill dated 17.11.2020 for an amount of INR 437/- (Rupees Eight Hundred and Thirty-Nine Only). It is denied that the Defendant is liable to pay ASD as per bill dated 17.11.2020 for an amount of INR 4010/-. It is denied that the Defendant is liable to pay INR 51,000/- each for the months December 2020, January to March 2021. It is denied that the Defendant is liable to pay total arrears of electricity bills amounting to f INR 20,000/- (Rupees Twenty Thousand Only). It is submitted that the Defendant vacated the Schedule Property on 21.08.2020 and has duly paid the rents till 21.08.2020. It is submitted that as per the terms of the lease Deed, electricity charges are to be /31/ Com.OS.287/2021 paid only for such units consumed by the Defendant and not otherwise It is submitted that the Defendant having vacated the Schedule Property before 20.08.2021, is not liable to pay any alleged dues unlawfully claimed by the Plaintiff.
61. It is specifically denied that the cause of action for this suit arose on 12.10.2020. It is submitted that the Defendant terminated the Lease Deed with two months' notice vide notice dated 21.06.2020 and vacated the Schedule Property on 21.08.2020. The cause of action arose for the when the Defendant terminated the Lease Deed and on 21.08.2020 when the Defendant vacated the Schedule Property. The Defendant is entitled to recover an amount of INR 1,19,114/- (Rupees One Lakh Nineteen Thousand One Hundred and Fourteen Only) from the Plaintiff, as explained herein above.
62. It is denied that the Plaintiff has a cause of action to approach any court of law. The contents of the paragraph 22 are denied in its entirety. The suit is undervalued for the purpose of payment of court fees. The Plaintiff has not paid appropriate court fee and until appropriate court fee is paid, the suit cannot be considered.
/32/ Com.OS.287/2021
63. It is therefore submitted that the Plaintiff is not liable (sic must be entitled) to any amounts or damages. In fact, as described in paragraph nos. 15 and 17, it is the Plaintiff who is liable to refund a sum of INR 1,19,114/- (Rupees One Lakh Nineteen Thousand One Hundred and Fourteen Only) with interest payable at 18% p.a to the Defendant and the Defendant has accordingly sought to claim the same vide its counter claim herein.
64. The cause of action for the claim of the Defendant arose on 21.06.2020 when the Defendant issued the termination notice vide email, terminating the Lease Deed and seeking refund of the Security Deposit by the Plaintiff. The cause of action further arose on 20.08.2020 when the 2 months' period came to an end and the Defendant vacated the premise but Plaintiff failed to return the Security Deposit, the cause of action further arose when the Plaintiff issued unlawful and frivolous notices demanding payment of arrears of rent and other dues and suppressing the termination of the Lease Deed by the Defendant and refusing to pay the amount duly payable to the Defendant; the cause of action is continuing till date.
65. The claim of the Defendant is within the prescribed period of limitation.
/33/ Com.OS.287/2021
66. The defendant has prayed the Court to
(a) declare that the Lease Deed stood terminated by the Defendant vide email dated 21.06.2020 with effect from 20.08.2020;
(b) direct the Plaintiff to refund to the Defendant a total sum of INR 1,42,962.90/- (Rupees One Lakh Forty-Two Thousand Nine Hundred and Six Two and Ninety Paise Only) calculated inclusive of interest at18% per annum from 20.08.2020 until the date of filing the written statement;
(c) award pendente lite and future interest payable at 18% per annum on the sum prayed for until the date of payment and realization;
(d) award the costs borne by the Defendant for the purposes of the Suit;
(e) dismiss the suit filed by the Plaintiff by imposition of exemplary costs in the interest of justice and
(f) pass any other or further orders or directions as may be deemed just and convenient in the facts and circumstances of the present case.
The Plaintiff has filed rejoinder to the counter claim made by the defendant. The summary of the rejoinder is as under:
67. The plaintiff has reiterated the averments made in the plaint and denied the averments made by the defendant in the written statement.
/34/ Com.OS.287/2021
68. With regard to allegation made in para-1, 2, 3 and 4 of the written statement are specifically denied as false, With regard to allegation made in para- 1 of the plaint are denied as false. It is specifically denied that, vide an order dated September 05, 2019 the Hon'ble National Company Law Tribunal, Ahmadabad sanctioned a scheme of merger, are specifically denied as false and this plaintiff is where concern to the same. It is further specific denied that, Whereby "Relience Corporate IT P Limited" was vested into " Relience Digital Platform an Project Services Limited" as a going concern thereafter the name of Relience Digital Platform and projects and property Services Limited" was changed to Relience projects and property Management Services Limited"
with effect from April 04,2020 are specifically denied as false and is nowhere concern to the plaintiff and the said facts is not relating to the disputes between the parties and hence the said contention taken by the defendant is not maintainable either in law or an facts and the same is not required.
69. In paragraph 5 of the written statement, the defendant has challenged the correctness of the court fee paid on the basis of the Commercial court Act, 2015, The plaintiff submits that, with respect to the prayer contained in the plaint, the court fee paid is not only correct and accurate but also in accordance with Section 21 of the KCF and SV Act 1958 /35/ Com.OS.287/2021 in respect of prayer (a) paid Court fee of ₹.32,089/- (Rupees thirty two thousand eighty nine Rupees only) and in respect of prayer (b) and (c) the plaintiff valued the same under section 24(d) of KCF and SV Act and Valued ₹.1000/- and paid necessary court fee as per prayer in the plaint. Hence, the averment that the suit is liable to be rejected as wrong and improper.
70. In para 6 of the written statement, the defendant has made ridiculous averments and the same are specifically denied as false and defendant is put to strict proof of the same, It is specifically denied that in para-6 of the written statement, the contention of the defendant that, plaintiff has suppressed the alleged termination notice dated 21.06.2020 issued by the defendant terminating the lease deed dated 21.10.2014 executed between the plaintiff and the defendant is specifically denied as false. The alleged termination notice dated 21.06.2020 issued by the defendant was not at all served on this plaintiff and hence the claim of termination of lease deed dated 21.10.2014, thorough the alleged notice dated 21.06.2020 are created and concocted story made by the defendant, It is further submitted that, this plaintiff himself terminated the lease deed dated 21.10.2014, as per legal notice dated 12.08.2020 under section 106 of the Transfer of Property Act as pleaded in Para-7 of the plaint. The Defendant /36/ Com.OS.287/2021 has violated the restrictive clause 15 (a) and (b) of the lease deed dated 21.10.2014. It is further submitted that, The said alleged termination notice dated 21.06.2020 was not at all served to this plaintiff in any manner what so ever and it is further submitted that, this plaintiff himself terminated the said lease deed date 21.10.2014 through said termination of lease deed dated 12.08.2020 and the said legal notice was duly served upon this defendant on 17.08.2020 and the same was not disputed by the defendant. But also aggrieved by the said termination notice, the defendant issued reply notice after 45 days from the date of receipts of notice dated 12.08.2020, to that effect, this plaintiff replied the same through an appropriate rejoinder notice dated 14.12.2020 and the same is stated in plaint para-10. Hence allegation of suppression of fact made in para-6 of the written statement is not maintainable either in law or on facts and the same is not maintainable.
71. It is for the defendant to establish that, the said alleged termination of lease deed dated 21.06.2020 was duly served to the plaintiff and that the said notice was issued to plaintiff. The case of the defendant is that, there is a termination on 21.06.2020 and the case of the plaintiff is that the said termination notice was not served to him in any manner and what so ever. Hence the defendant cannot be /37/ Com.OS.287/2021 allowed by this Hon'ble court to attempt to take advantage of his own fault and default. Hence allegation in para-6 of the written statement is far from the truth and is not maintainable. This plaintiff himself terminated the said lease deed dated 21.10.2014 through said termination of lease deed dated 12.08.2020 and the said legal notice was duly served upon this defendant on 17.08.2020 and the same was not disputed by the defendant. But also aggrieved by the said termination notice, the defendant issued reply notice after 45 days from the date of receipts of notice dated 12.08.2020, to that effect, this plaintiff replied the same through an appropriate rejoinder notice dated 14.12.2020 and the same is stated in plaint para-
10. Hence allegation of suppression of fact made in para-6 of the written statement is not maintainable either in law or an facts and the same is not maintainable and thereby defendant cannot be allowed by this Hon'ble court to attempt to take advantage of his own fault and default. Hence allegation in para-9 of the written statement is far from the truth and is not maintainable. The allegations made in para-10 of the written statement are specifically denied as false except the subject matter of the Leased deed. It is specifically denied that, the Contention of the defendant that, since the plaintiff was about 60 years of age, most of the negotiations and as discussions pertaining to the lease deed and even discussions thereafter were effected through his son Mr.Rakesh Ajjappa are /38/ Com.OS.287/2021 specifically denied as false and plaintiff is put to strict proof of the same. It is specifically denied that, Email address of the plaintiffs son was provided for the purposes of communication and was therefore available in the records are specifically denied as false. At any point of the time the plaintiff not provided the email address of his son to the defendant. Only to escape from the liability for arrears of rent and damages the defendant claiming this false defense and hence the same is not maintainable. Even though the relationship with his son is not good from the last 4 to 5 years due to their family dispute and to that effect his son has filed the suit in O.S.No.498/2018 for relief of partition and separate possession in respect of the family properties of the plaintiff and hence the false allegation about his son about communication about the subject matter of the lease deed dated 21.10.2014 is not maintainable.
72. To evidence about the said dispute with his son the plaintiff is herewith producing certified copy of the plaint in O.S.No.498/2018 for the kind perusal of this Hon'ble court and hence the alleged allegation made by the defend in para-10 of the written statement is far from the tr and the same is not maintainable.
73. The allegation made in para- 11 of the written statement are specifically denied as false. The defendant is /39/ Com.OS.287/2021 liable to arrears of rent from 01.03.2020 as per para-8 of the plaint and as per said para-8 the defendant is obligated to pay ₹.8,80,214/- including arrears of rent, damages of building and cost of the notices issued by the plaintiff and electricity charges and also liable to pay damages as claimed by the plaintiff from the date of termination of tenancy of ₹. 3000/- per day from 12.10.2020 to 18.03.2021 till the date handing over key by the defendant to the plaintiff and to the same the defendant is entitled.
74. With regard to the allegations made in para-12 in the written statement they are specifically denied as false. As per the plaint averments and also as per the documents produced by the plaintiff, the alleged termination of tenancy dated 21.06.2020 claimed by the defendant is far from the truth. The defendant is put to strict proof of the same. Hence other allegation made in the said para-12 of the written statement is specifically denied as false and defendant is put to strict proof of the
75. With regard to allegation made in para- 3 of the written statement they are specifically denied as false. It is denied that, the defendant duly vacated the schedule premises before 20.08.2020 and contacted the plaintiff multiple times to hand over the keys of the schedule premises /40/ Com.OS.287/2021 and the plaintiff evaded the same are all specifically denied as false and plaintiff is put to strict proof of the same.
76. With regard to allegations made in para-14 of the written statement they are specifically denied as false. It is denied that, the defendant paid power deposit of INR ₹.10,080/- The said deposit if any by the defendant is for his business and the plaintiff is not entitled to repay the same to the plaintiff and as per the terms and conditions of the lease deed the plaintiff is not liable to pay. The Amount of INR ₹.76.577/- concerned and also amount of INR of ₹. 19.597/- concerned are concocted and created calculation and there is no document to substantiate the same and as per the terms and conditions of the lease deed the plaintiff is not obliged to pay the same to the defendant and hence the allegations made in the said para-14 are specifically denied as false and plaintiff is put to strict proof of the same.
77. With regard to allegations made in para-15 of the written statement are specifically denied as false. It is specifically denied that, the defendant duly intimated the before vacating from the schedule premises. It is specifically denied that, at that stage, both the part have discussed about the advance amount and also inter alia the rent payable for the period from April 2020 August 2020 and restoration cost of /41/ Com.OS.287/2021 INR 1,50,000/- as requested for by the plaintiff, all are specifically denied as false. It is also denied that for the sake of good faith defendant agreed to pay the 1,50,000/- for damages of building and after INR 1,19,114/- as agreed by the plaintiff as per understanding between the parties are all specifically denied as false and defendant is put to strict proof of the same.
78. With regard to allegations made in para-16 of the written statement are all false and specifically denied and defendant is put to strict to proof of the same. With regard to allegation made in para-17,18 and 19 are all specifically denied as false and the alleged email transaction with the son of the plaintiff is not within the knowledge of this plaintiff or in a manner of communication between the parties, agreed upon mutually. Hence the Defendant the defendant is put to strict proof of the same. With regard to allegation made in para-20, 21, 22 all are specifically denied as false. To counter the said paras and contentions therein, the plaintiff produced necessary documents and also necessary pleadings about the said allegation and hence to avoid repetition of facts, the averments made in the plaint will be read as counter to the said allegation in the said paras stated above. With regard to allegation made in para-23 are specifically denied as false and counter to the allegation to the said para-23 the plaintiff is /42/ Com.OS.287/2021 herewith produced the Non settled report dated 06.04.2021 issued by the DLSA Bangalore and the same already marked as Exhibit P-18 in this case. The allegation on E mail dated 30.03.2021 is not within the knowledge of this plaintiff and hence the plaintiff is specifically denied the same. With regard para- 24 and 25 of the written statement concern all are matter on record before this Hon'ble court about in this case and hence the same need not be traversed herein.
79. With regard to allegations made in para-26 and 27 are specifically denied as false and the defendant is put to strict proof of the same.
80. It is further submitted that, the allegations in para- 8 of the written statement are specifically denied as false. As per available documents and also available pleadings and also mathematical calculations the plaintiff is entitled for being awarded damages as prayed for.
81. It is submitted that, the cause of action stated by defendant in para-29 is specifically denied as false. submitted that the alleged cause of action stated by t defendant in para- 29 is created by the defendant for the purpose of this case with an intention to take defense and hence the said cause of /43/ Com.OS.287/2021 action is created and concocted and the same is not maintainable under the facts and circumstances of this case.
82. The plaintiff submits that, the defendant has handed over the key of the lease premises, to the plaintiff by post, received on 14.02.2021. Till then the premises had been in the custody of the defendant. These facts have been suppressed by the defendant in his written statement.
83. It is further submitted that, the leased premises is still subject to the entry of encumbrance in the records of the sub- registrar, since the said lease deed dated 21.10.2014 was a registered one as required by law, the defendant has not come forward to execute and register the release deed, He also silent on this aspect in his written statement.
84. The plaintiff submits that, such conduct of the defendant is not completing the obligation on described in paragraph 20 above, the absolute enjoyment of the rights to the property of which the leased premises is part, is being affected, which causes mental agony to the plaintiff. The same also affects any family arrangements to be contemplated by the plaintiff, further aggravating the mental agony and the plaintiff is entitled for equitable damages on this account also, as determined by this Hon'ble court. All the above submissions /44/ Com.OS.287/2021 clearly evidence that the defendant has not approached this Hon'ble court with clean hands and is putting up a bogus defense.
85. It is submitted that, As per prayers in the written statement the defendant is liable to pay necessary court fee as per Karnataka Court fee and Suit valuation Act 1958. Hence the defendant not paid the proper court fee as per relief claimed by them and hence the defendant is not entitled any relief claimed by them in the written statement. As per the prayer (a) the defendant is liable to pay the court fee under Section 38 of Karnataka Court fee and Suit valuation Act and As per Prayer (b) the defendant is liable to pay the court fee as per section 21 of the KCF and SV Act. And Prayer (c) to (e) the defendant is liable to pay the court fee under section 24(d) of KCF and SV Act 1958. Hence the prayers have not been drawn up as required under the Commercial Court Act 2015, This has been done in order to avoid paying appropriate court fee. As per the Commercial court act 2015, the amount claim by the defendant as on the date of the written statement should be calculated and prayed for and it follows as a necessary sequitur court fee has to be paid on such sum including the claim of the interest as on the date of filing written statement, Therefore it is submitted that the defendant herein are not approached this Hon'ble court with clean hands, the contentions of the defendant are false and created and /45/ Com.OS.287/2021 concocted, by the same are not maintainable either in law or on facts and hence the defense taken by defendants is denied as false and subject to strict proof. Wherefore plaintiff prays that this Hon'ble court may be pleased to decree the suit of the plaintiff as prayed in the plaint in the interest of justice and equity.
86. On the basis of rival pleadings the following Issues are framed.
ISSUES
01. Whether the Plaintiff proves that he has terminated the tenancy of the defendant in respect of tenanted premises w.e.f. 12.10.2020?
02. Whether the Plaintiff proves that the defendant is in arrears of rent from 01.03.2020 to 30.09.2020?
03. Whether the Plaintiff proves that the defendant is liable to pay damages at ₹.3,000/- per day from 12.10.2020 till 18.03.2021, the date of receipt of keys from the plaintiff?
04. Whether the plaintiff proves that the defendant is liable to pay a sum of ₹.4,80,214/- together with interest at 18% p.a. with interest from 12/10/2020 to 18.03.2021 and also current and future interest at 18% p.a. from the date of suit till the date of realization of suit claim?
05. Whether the plaintiff proves that the defendant is liable to execute and register cancellation deed cancelling the registered lease deed dated:21.10.2014?
06. Whether the plaintiff is entitled to make set off of refundable security deposit of ₹.4,00,000/- against his claim of ₹.8,80,214/-(Inclusive of arrears of rent, damages, electricity consumption charges)?
/46/ Com.OS.287/2021
07. Whether the Plaintiff is entitled for suit reliefs?
ISSUES ON COUNTER CLAIM
01. Whether the defendant proves that the plaintiff has not valued the suit reliefs properly and the Court fees paid thereon is insufficient?
02. Whether the defendant proves that it has terminated the tenancy w.e.f. 20.08.2020 by issuing notice vide e-mail dated:21.06.2020?
03. Whether the defendant proves that the plaintiff is liable to refund a sum of ₹.1,42,962/- together with current and future interest at 18% p.a. from the date of suit till the date of realization?
04. Whether the defendant is entitled for counter claim reliefs?
05. What Order/decree?
87. The Plaintiff has adduced his evidence as PW1. He has exhibited Ex.P1 to Ex.P21 and closed his evidence. The defendant got exhibited Ex.D1 to Ex.D6 in the cross examination of PW1.
88. The Defendant examined Sri.K.C.Vijay as DW1. The DW1 has exhibited Ex.D7 to Ex.15 in his examination-in-chief.
89. The defendant has examined Sri.Prashant P. as DW2. The DW2 has exhibited Ex.D16 to Ex.D26 in his examination- in-chief.
90. The defendant has examined Sri.Veeresh Maski as DW3. The DW3 has exhibited Ex.D28 in his examination in chief.
/47/ Com.OS.287/2021
91. The defendant got exhibited Ex.D29/E-mail trials dated:09.10.2020 with the consent of the plaintiff.
92. After the completion of the trial I have heard the arguments addressed by the learned Counsel for the Plaintiff and defendant. The learned Counsel for the Plaintiff has relied on the following decisions in support of his case:
Sl.No. Particulars Citations
1. Maduri Satyanarayana Vs. AIR 1990 Andhra
Singamesetti Pradesh 169
Veerabhadraswamy
2. Vasanth Madhava Vs. 2012(5) KCCR 4360
E.Seshadri Kutti Dorai
3. M/s.Gabion Technologies India AIR 2017 HIMACHAL Pvt., Ltd., V.M/s.Amcon Master PRADESH 140 Builders Missarwala
4. Shyam Charan Vs. Sheoji Bhai (1977) 4 SCC 393 and Another
5. Sri.K.P.Asokumar Vs. M/s. ILR 2022 KAR 875 Shiksha Associates, Bengaluru.
93. The learned Counsel for the defendant has relied on the following decisions in support of his case:
Sl.No. Particulars Citations
1. H.s.Bedi Vs. National SCC Online Del 9524
Highway Authority of India,
2015
2. Sudarshan Cargi Pvt., V M/s. ILT 2013 KAR 3941 Techvac Engineering Pvt., /48/ Com.OS.287/2021 Ltd.,
3. Narayan Govind Gavate 7 1 SCC 133 Ors. V.State of Maharastra & Ors.,
4. Samir Mukherjee V.Davinder (2001) 5 SCC 259 K.Bajaj & Ors,
5. Muddasani Venkata (2016) 12 SCC 238 Narasaiah V. Muddasani Sarojana,
94. I have gone through the materials available on record and the ratio of the above decisions and applied to the facts of the case.
95. My findings on the above Issues are as under:
ISSUES ISSUE No.1 : In the AFFIRMATIVE ISSUE No.2 : Partly AFFIRMATIVE ISSUE No.3 : Partly AFFIRMATIVE ISSUE No.4 : Partly AFFIRMATIVE ISSUE No.5 : In the AFFIRMATIVE ISSUE No.6 : In the NEGATIVE ISSUE No.7 : Partly AFFIRMATIVE ISSUES ON COUNTER CLAIM ISSUE No.1 : Does not survive for consideration ISSUE No.2 : In the NEGATIVE ISSUE No.3 : In the NEGATIVE ISSUE No.4 : In the NEGATIVE ISSUE No.5 : As per final order for the following /49/ Com.OS.287/2021 REASONS 96. Issue No.1 to 6 and Counter Claim Issue No. 2 and 3: The plaintiff has filed this suit against the defendant praying the Court to pass a judgment and decree :-
a) Directing the defendant to pay a net sum of ₹.4,80,214/- (Rupees four lakhs eighty thousand two hundred fourteen only) towards arrears of rent and other dues till 18.03.2021 and subsequent months' rent from December 2020 to 18th March 2021, with interest @ 18% per annum till the realization of the said amount. (as per para 8 of this plaint);
b) Consequentially directing the Defendant to pay a sum ₹.3,000/- (Rupees three Thousand) per day from 12.10.2020 i.e from the date of termination of tenancy till the date of delivery of keys of the schedule premises on 18.03.2021 as per keys sent by the defendant through letter dated 08.02.2021 towards damages;
c) Directing the defendant to registration of cancellation of lease deed dated 21.10.2014 at his cost;
d) Awarding pendent lite interest and future interest till date of realization @ 18% P.A. as detailed in paragraph above;
e) Awarding cost of the suit and such other reliefs as this Hon'ble Court may deems fit and proper under the circumstances of the case, in the interest of justice and equity.
/50/ Com.OS.287/2021
97. The defendant has prayed the Court be pleased to
(a) declare the Lease Deed stood terminated by the Defendant vide email dated 21.06.2020 with effect from 20.08.2020;
(b) direct the Plaintiff to refund to the Defendant a total sum of INR 1,42,962.90/- (Rupees One Lakh Forty-Two Thousand Nine Hundred and Six Two and Ninety Paisa Only) calculated inclusive of interest at18% per annum from 20.08.2020 until the date of filing the written statement;
(c) award pendente lite and future interest payable at 18% per annum on the sum prayed for until the date of payment and realization;
(d) award the costs borne by the Defendant for the purposes of the Suit;
(e) dismiss the suit filed by the Plaintiff by imposition of exemplary costs in the interest of justice and
(f) pass any other or further orders or directions as may be deemed just and convenient in the facts and circumstances of the present case.
98. The Plaintiff has adduced his evidence as PW1. He has exhibited Ex.P1 to Ex.P21 and closed his evidence.
Sl.No. Particulars of documents Ex.P.
1. Registered lease deed dated 21.10.2014 Ex.P.1
2. Office copy of Legal notice dated Ex.P.2 /51/ Com.OS.287/2021 12.08.2020
3. Postal receipts ( 2 numbers) Ex.P.3(a) & 3(b)
4. Postal acknowledgment Ex.P.4
5. Reply notice issued by the defendant Ex.P.5 dated 02.12.2020
6. Rejoinder notice dated 14.12.2020 Ex.P.6
7. Postal acknowledgment Ex.P.7
8. Postal receipts (2 numbers) Ex.P.8(a) & 8(b)
9. Endorsement issued by Senior Ex.P.9 Superintendant of posts
10. Postal acknowledgment Ex.P.10
11. Electricity consumption bills (3 Ex.P.11(a) numbers) ,(b) & (c)
12. Notice issued by the defendant dated Ex.P.12 08.02.2021
13. Postal cover in which Ex.P.12 was sent Ex.P.13
14. Reply notice dated 15.02.2021 issued to Ex.P.14 the defendant
15. Postal receipts ( 2 numbers) Ex.P.15(a) & (b)
16. Postal acknowledgment Ex.P.16
17. Track consignment issued by Ex.P.17 Department of posts (2 numbers) (a) & (b)
18. Non-starter report issued by DLSA Ex.P.18 Bengaluru District (city) in PIM 95/2021
19. Lease agreement dated 25.04.2018 Ex.P.19 entered into by the plaintiff and M/s Pai International Electronics Limited.
/52/ Com.OS.287/2021
20. Lease agreement dated 26.04.2018 Ex.P.20 entered into by the plaintiff and M/s N.M. Distributors.
21. Copy of letter dated 21.10.2014 Ex.P.21
99. The defendant got exhibited Ex.D1 to Ex.D6 in the cross examination of PW1.
100. The Defendant examined Sri.K.C.Vijay as DW1. The DW1 has exhibited Ex.D7 to Ex.15 in his examination-in-chief.
101. The defendant has examined Sri.Prashant P. as DW2. The DW2 has exhibited Ex.D16 to Ex.D26 in his examination-in-chief.
102. The defendant has examined Sri.Veeresh Maski as DW3. The DW3 has exhibited Ex.D28 in his examination in chief.
103. The defendant got exhibited Ex.D29/E-mail trials dated:09.10.2020 with the consent of the plaintiff.
Sl. Particulars of Documents Ex.D.
No.
1. Photo print outs of suit schedule Ex.D1 to
property (PW1) Ex.D3
/53/
Com.OS.287/2021
2. Certified copy of Written statement filed Ex.D4 in O.S.No:498/2018 (PW1)
3. Certified copy of written statement filed Ex.D5 by D3 in O.S.No:498/2018(PW1)
4. Certified Copy of statement of objection Ex.D6 of defendant No:3 to application u/o.VI R17CPC filed by plaintiff in O.S.No:498/2018(PW1)
5. Copy of Order passed by Hon'ble NCLT Ex.D.7 Ahmedabad Bench dt.05.09.2019
6. Certification of Incorporation Ex.D.8
7. E-mail dated 21-06-2020 along with Ex.D.9 attachment - Termination Notice (subject to objections of plaintiff)
8. Payment advice dt 06-03-2020 along Ex.D.10 with journal voucher
9. Payment advice dt 04-07-2016 Ex.D.11
10. Payment advice dt 24-08-2020 Ex.D.12
11. Payment advice dt 20-07-2020 along Ex.D13 with journal voucher
12. E-mail dt 30-03-2021 Ex.D.14
13. 65B Certificate-Vijaya K C Ex.D.15
14. Copy of E-mail dt 01-08-2019 Ex.D.16
15. Form No. 16 A dt 30-07-2018 Ex.D.17
16. Form No. 16 A Dt 14-11-2018 Ex.D.18
17. Form No. 16 A Dt 05-02-2019 Ex.D.19
18. Form No. 16 A Dt 03-06-2019 Ex.D.20 /54/ Com.OS.287/2021
19. Whatapp Chat dt 19-05-2020 Ex.D.21
20. E-Mail dt 28-07-2020 Ex.D.22
21. E-mail dt 17-08-2020 Ex.D.23
22. Whatapp Chat dt 19-05-2020 Ex.D24
23. Copy of notice dated 21-06-2020 Ex.D25
24. 65B Certificate Ex.D26
25. Power of attorney executed by Ex.D27 defendant Company in favor of DW1,2and 3 and others dated:28.04.2021
26. Certificate u/s.65B of Evidence Act Ex.D28
27. E-mail trails dated: 09.10.2020 Ex.D29
104. From the materials available on record it is evident that there is no dispute between the parties regarding the creation of tenancy in respect of suit schedule property vide registered Deed dated 21.10.2014/Ex.P1. The parties are not disputing the covenants enshrined in Ex.P1.
105. It is the case of plaintiff that the defendant has committed default in payment of rents from March 2020 for five consecutive months as such he has terminated the tenancy by issuing notice dated 12.08.2020 as per Ex.P.2 with effect from 12.10.2020. The said notice has been duly served on the defendant on 17.08.2020. In spite of service of termination notice, the defendant has failed to pay the arrears /55/ Com.OS.287/2021 of rent and has not handed over the keys of suit schedule property and also failed to get the cancellation deed executed and registered canceling the registered lease deed dated 21.10.2014/Ex.P1. The defendant has issued a notice dated 08.02.2021 as per Ex.P12 along with keys of schedule premises. The plaintiff has received Ex.P.12 along with keys of schedule property on 10.02.2021. The plaintiff has issued the notice dated 15.02.2021 as per Ex.P14 informing the defendant about pendency of pre-litigation proceedings and also denied the demand made by the defendant for refund of ₹.1,19,114/- in its notice dated 08.02.2021.
106. The defendant in its notice dated 02.12.2020/Ex.P5 has contended that the defendant has terminated the tenancy by issuing notice dated 21.06.2020 and has vacated the premises even before the effective date of termination of tenancy i.e., before 20.08.2020. The plaintiff is contending that he has not received the alleged termination notice dated 21.06.2020.
107. The plaintiff is contending that the defendant was in possession of schedule premises till 18.03.2021 as such the defendant is liable to pay arrears of rent amounting to ₹.6,05,214/- from 01.03.2020 till 18.03.2021. The defendant is also liable to pay a sum of ₹.40,000/- being the interest on /56/ Com.OS.287/2021 arrears of rent from 01.03.2020 till 18.03.2021. The defendant is liable to compensate the plaintiff regarding external damage caused to the premises as admitted by the defendant at ₹.2,00,000/- and electricity bill arrears of ₹.20,000/- in all ₹.8,80,214/-.
108. The plaintiff has further stated that he has adjusted interest free refundable security deposit of ₹.4,00,000/- paid by the defendant against the arrears of rent and damages of ₹.8,80,214/-.
109. The plaintiff has denied the averments made by the plaintiff and has contended that the defendant has paid ₹.4,00,000/- as interest free security deposit to the plaintiff and also paid power deposit of ₹.10,080/- and ad-hoc advance paid until June 2020 amounting to ₹.76,577/- and excess TDS amount of ₹.19,597/-.
110. The defendant has duly intimated the plaintiff before vacating the schedule premises and at that stage the plaintiff and the defendant had even discussed about refund of security deposit after deducting the arrears of rent payable from April 2020 to August 2020 on the restoration cost of ₹.1,50,000/- as requested by the plaintiff.
/57/ Com.OS.287/2021
111. The suit schedule property did not require any restoration. However, the defendant has agreed to pay the restoration charges and requested the plaintiff to refund ₹.1,19,114/- to the defendant. The defendant has stated that the defendant was required to pay ₹.1,39,136/- towards arrears of rent from 01.04.2020 to 20.06.2020; ₹.1,01,004/- from 21.06.2020 to 20.08.2020; restoration cost of ₹.1,50,000/- in all ₹.3,87,140/-. The defendant is contending that the plaintiff is liable to refund interest free security deposit of ₹.4,00,000/-; ad-hoc advance paid until June 2020 amounting to ₹.76,577/-; power deposit of ₹.10,080/-, excess TDS amount ₹.19,507/- in all ₹.5,06,254/-. Thus the plaintiff is liable to refund a sum of ₹.1,19,114/- to the defendant.
112. In this case both plaintiff and defendant are claiming that they have terminated the tenancy by causing notice of termination of tenancy. The Plaintiff is contending that he has terminated the tenancy w.e.f. 12.10.2020 by issuing notice as per Ex.P2 dated: 12.08.2020 granting two months time to the defendant to quit and deliver the vacant possession of schedule premises and also to clear the arrears of rent and other dues.
113. The defendant is contending that it has terminated the tenancy by issuing e-mail communication /58/ Com.OS.287/2021 dated:21.06.2020 /Ex.D9 and informed the plaintiff that the defendant would vacate the schedule premises on or before 20.08.2020 and demanded for refund of interest free advance amount of ₹.4,00,000/- subject to adjustment of all mutual dues and settlement of accounts. The defendant is contending that the e-mail communication was sent to mail ID of Sri.Rakesh Ajjappa S/O. Ajjappa (Plaintiff). The Plaintiff is contending that he has not received the alleged termination notice dated:21.06.2020 issued by the defendant through e- mail. He is not sharing cordial relationship with his son. He has not furnished e-mail ID to the defendant for the purpose of communication. Hence, the alleged notice of termination issued by the defendant is invalid.
114. The defendant has subjected the plaintiff to extensive cross examination regarding the service of termination notice dated:21.06.2020 to the plaintiff through the e-mail ID of his son Sri.Rakesh Ajjappa.
115. The PW1 in his cross examination deposed that I am not sharing good relation with my son Rakesh as such I am not examining him as my witness. It is false to suggest that the defendant had sent TDS certificate to my son Rakesh through email. I do not know the email ID of my son Rakesh. I do not know whether my son Rakesh made any correspondence /59/ Com.OS.287/2021 through email with the defendant. I do not know the present address of my son. It is false to suggest that my son Rakesh had been dealing with the defendant on my behalf. It is true that the picture of my son and my daughter is being displayed in my Whatsapp profile. My daughter graduated about 7-8 years ago. At that time my daughter projected picture of my son and daughter in my Whatsapp profile. My daughter is living in USA. I am using a new handset since 2 years. My daughter came to India 3 and half years ago and left to USA about 2 years ago.
116. Mr.Harsha is my advocate. My son Rakesh has filed O.S.498/2018 against me through his advocate Sri.Mahendra. I am defending the said suit through my advocate Mr.Harsha. It is false to suggest that Mr.Harsha is representing my son Rakesh in O.S.498/2018.
117. It is false to suggest that the defendant had issued a legal notice dated 21.06.2020 informing me that the defendant would vacate the schedule premises. It is false to suggest that the defendant had vacated the schedule premises in August 2020. It is false to suggest that the defendant had sent the notice to me through Whatsapp and email.
/60/ Com.OS.287/2021
118. In O.S.498/2018 myself, my wife Varalakshmi and Thyagaraja Co-operative Bank Ltd., are arrayed as defendants. I had filed a suit against Thyagaraja Co-operative Bank Ltd., in O.S.2622/2012, which has been decreed in my favour and the execution case is pending adjudication. It is false to suggest that in collusion with my son I have got filed O.S.498/2018. It is false to suggest that I am falsely deposing that my relationship with my son is strained.
119. The DW1 in his cross examination deposed that I know the contents of Ex.P.1. The lease period was fixed for a period of 10 years under Ex.P.1. Clause 15 of Ex.P.1 provides for termination of lease by either party to lease. It is true that the plaintiff has issued notice dated 12.08.2020 as per Ex.P.2. The said notice served on the defendant on 17.08.2020 as per Ex.P.4. The defendant has issued reply notice to Ex.P.2 notice as per Ex.P.5 dated 02.12.2020. The defendant has notified the plaintiff that the lease was terminated by the defendant with effect from 20.08.2020. We have sent the termination notice dated 21.06.2020 through E-mail ID furnished by the plaintiff. The defendant has not mentioned about issuance of termination notice through E-Mail in Ex.P.5. In Ex.P.5 the defendant has stated that the termination notice was served on the plaintiff. The defendant has approached the son of plaintiff Sri. Rakesh Ajjappa to make full and final settlement. It /61/ Com.OS.287/2021 is not true to suggest that we have collected E-mail ID of Rakesh by him, the plaintiff had already furnished E-mail ID of his son. The plaintiff has furnished E-mail ID of his son orally. It is not true to suggest that the plaintiff has not at all furnished E-mail ID of his son to the defendant. Due to COVID- 19 we received the notice issued by the plaintiff at a belated date as we were not functioning at our office.
120. We have shifted our working office to Vijayanagara in 2019. Even now we continued to run our office at Richmond Road address. The Ex.P.2 is addressed to our Mumbai and Richmond Road address. At the time of sending termination notice to the plaintiff we were not working at Bangalore office due to COVID-19 as such we have sent the notice through E- mail. During June 2020 the Government has permitted only essential services to function and not the Corporate sector. Ex.D.9 is the copy of termination notice sent by the defendant through E-mail to the plaintiff's son. Ex.D.25 is a copy of termination notice dated 21.06.2020. I don't exactly remember whether a copy of notice as per Ex.D.25 was furnished to the plaintiff probably a copy might have been furnished to the plaintiff at our store in the schedule premises. I have not furnished any documents to evidence that a copy of Ex.D.25 was furnished to the plaintiff. The document furnished by the defendant along with written statement at page No.118 dated /62/ Com.OS.287/2021 21.06.2020 is the copy of Ex.D.25. As the witness is admitted the said document is now marked as Ex.P.21. It is not true to suggest that only with an intention to exhibit Ex.D.25, we have obtained the signature of authorized signatory on a copy of Ex.P.21. The plaintiff has issued a reply notice as per Ex.P.6 dated 14.12.2021 to our notice dated 02.12.2020/Ex.P.4. The defendant has received notice issued as per Ex.P.6 as per Ex.P.7/ Postal acknowledgment.
121. It is not true to suggest that we have not sent a copy of Ex.D.25 to the plaintiff through courier. I have not disclosed either in written statement or in my affidavit evidence that the defendant has sent a copy of Ex.D.25 to the plaintiff through courier. It is true that Mr. Sathisha has forwarded the notice as per Ex.D.9 to me. It is not true to suggest that I have forwarded the letter forwarded by Mr. Sathisha to me, to Sri. Rakesh Ajjappa. It is not true to suggest that Ex.D.9 is edited. It is false to suggest that we have concocted Ex.D.9 for the purpose of this suit.
122. The DW2 in his cross examination deposed that I have signed Ex. P1 as the authorized signatory of the defendant. I know the contents of Ex. P1. I am aware of the facts of the case and also the documents exhibited by the plaintiff. I am aware of the written statement averments and /63/ Com.OS.287/2021 the documents exhibited by the defendant. I have not furnished any documents to show that the plaintiff himself has furnished E-mail ID of his son Sri. Rakesh. The witness volunteers to depose that the plaintiff has furnished E-mail ID orally. There is no covenant in Ex.P1 that all the transaction with plaintiff shall be done through E-mail ID of Sri. Rakesh as the plaintiff has no E-mail ID. The defendant has not stated either in the E-mail communication or in termination notice that the said communication and notice are made to Sri. Rakesh as his father the plaintiff herein has no E-mail ID. We have not requested Sri. Rakesh to communicate the termination notice to his father.
123. I have requested Rakesh Ajappa to send his E-mail ID, as per Ex. D21 on 08.10.2020.
124. The plaintiff has issued a notice as per Ex. P2 on 12.08.2020. The defendant has issued reply notice on 02.12.2020. In the reply notice we have stated about the additional security deposit made by the defendant. The defendant was liable to pay rents from April-2020 on wards. The defendant has paid rent for the month of March-2020. I have not furnished document to evidence the payment of rent for the month of March-2020.
/64/ Com.OS.287/2021
125. Ex. P1 provides for termination of tenancy at clause No. 15(a), (b) and 16. it is not true to suggest that the defendant has not terminated the tenancy in accordance with clause No. 15(a), (b) and 16 of Ex. P1. The defendant has not sent termination notice through post. The defendant has not affixed a copy of termination notice dated 21.06.2020 in the schedule premises. It is true that the plaintiff has been residing in the cause title mentioned address from the date of Ex. P1. The defendant has not affixed a copy of termination notice dated 21.06.2020 in the residential premises of the plaintiff. The witnesses volunteers to depose that whenever we contacted the plaintiff over the phone he used to ask us to meet him at the tenanted premises.
126. We have sent a copy of termination notice through Whatsapp to the plaintiff as per his request. We have even tried to meet the plaintiff personally but is of no avail. We have sent a copy of Ex. D25 through Whatsapp to the plaintiff. A copy of Ex. D25 was not sent to the plaintiff through courier. We have sent a copy of Ex. D25 through E-mail to the plaintiff. The defendant has sent a copy of Ex. D25 through E-mail to the plaintiff to rakesh.ajappa..... The defendant has averred in the written statement that a copy of termination notice has been sent to the plaintiff through Whatsapp on 05.08.2020.
/65/ Com.OS.287/2021
127. It is not true to suggest that the defendant has not sent the copy of termination notice through Whatsapp to the plaintiff on 05.08.2020. The defendant had intimated the plaintiff that the defendant would vacate the schedule premises on 17.08.2020. The witnesses volunteers to depose that on 17.08.2020 the plaintiff was present at the schedule premises and when we offered keys of the premises the plaintiff evaded to receive the keys.
128. In Ex. D4 at para No. 15 & 16 the plaintiff herein has deposed that he has no cordial relationship with his son Rakesh. During 2018 we had no dispute with the plaintiff. It is not true to suggest that I am falsely deposing that the plaintiff and his son are having cordial relationship.
129. From the materials available on record it is evident that Sri.Rakesh Ajjappa s/o of the Plaintiff was also communicating with the defendant. The defendant has exhibited Ex.D4 and D5. The Defendant has also exhibited Ex.D16 to Ex.D20 to show that the defendant used to communicate with the plaintiff through e-mail ID of plaintiff's son Sri.Rakesh Ajjappa.
130. The evidence available on record show that the plaintiff used to receive communications from defendant /66/ Com.OS.287/2021 through the e-mail ID of his son Sri.Rakesh Ajjappa. ExD4 and Ex.D5 show that the O.S.No:498/2018 was filed by Sri.Rakesh Ajjappa only in respect of one property which was sold by the plaintiff herein in favor of Thyagaraja Co-operative Society Ltd., The evidence available on record show that the said proceeding is an attempt made by Sri.Rakesh Ajjappa to repossess the property sold by the plaintiff for the family rather than the result of strained relationship with his father, the plaintiff herein. Hence, the contention of the plaintiff that he has no cordial relationship with his son Sri.Rakesh Ajjappa is not probable and acceptable, accordingly rejected.
131. The e-mail communication made by the defendant to send termination notice as per Ex.D9 is a valid mode of communication in view of section 4 of Information Technology Act, 2000 which stipulates legal recognition to electronic records including communication through e-mail.
132. It is relevant to refer to Section 106 and 111 of Transfer of Property Act, 1882 which read as under:
Section 106 of Transfer of Property Act, 1882 provides Section : 106 Duration of certain leases in absence of written contract or local usage.
(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or /67/ Com.OS.287/2021 manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; 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 fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to u conspicuous part of the property.
Section : 111 Determination of lease.
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;
/68/ Com.OS.287/2021 ( 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 interests 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;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease, to the lessor by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say ,-
(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re- enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease; (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.
Illustration to Clause (f)
133. Section 106 of Transfer of Property Act deals with the duration of lease in the absence of a written contract or /69/ Com.OS.287/2021 local usage. In this case the lease was created by virtue of a registered lease deed dated:25.04.2018/Ex.P1. Hence the parties to the suit are governed by terms and conditions enshrined in the registered lease deed dated: 21.10.2014/ Ex.P1.
134. Section 111 of the Transfer of Property Act deals with determination of lease. Clause 15 of Ex.P1 provides for determination of lease by parties to the lease agreement.
Termination:
a) It is hereby specifically agreed and declared that if at any time the rent hereby reserved or any part thereof shall remain unpaid for a consecutive period of 2 (two) months after the date on which the same ought to have been paid and if such default shall continue and be not remedied within a period of 30 days from the date of service of a notice in writing to be given by the lessor to the lessee in this behalf, it shall be lawful for the lessor at any time thereafter to terminate the lease and the lessor shall have the right of reentry into the Demised Premises and the Lessee shall quietly vacate and hand over the vacant possession of the Demised premises to the Lessor without demur. However the Lessee performing its obligation under this lease deed shall be entitled to undisturbed and peaceful possession of the Demised Premises and the Lessor shall not terminate and determine the Lease.
b) In the event of either party hereto committing breach of any of the terms, conditions, covenants contained in the lease Deed, the aggrieved party shall at any time be entitled to determine/terminate the lease by giving to the other party 2(two) months's notice in writing provided /70/ Com.OS.287/2021 however that if such breach is made good during the notice period, the notice shall at the discretion of the party giving the notice, stand waived/revoked.
135. Clause 15(a) of Ex.P1 provides that in case of default committed by the defendant in payment of rents for two consecutive months the plaintiff has an option to issue notice to the defendant to pay the arrears of rent and if the defendant pays arrears of rent within 30 days from the date of receipt of said notice the plaintiff has no right to terminate the tenancy on the ground of arrears of rent. Clause 15(b) of Ex.P1 provides in case of breach of any of the terms and conditions of lease deed either party has an option to terminate the lease by giving 2 months notice.
136. The defendant has not assigned reason for termination of lease in its notice Ex.D9/21.06.2020 except stating that due to their business compulsion they are unable to continue their business in the schedule premises. The notice issued by the defendant as per Ex.D9 is not in conformity with Clause 15(b) of Ex.P1. Hence, the said notice is not a valid notice. In such circumstances the defendant is not entitled to contend that it has terminated the notice by issuing notice as per Ex.D9/21.06.2020.
137. The plaintiff has terminated the lease by issuing notice dated:12.08.2020/Ex.P2. Wherein the plaintiff has /71/ Com.OS.287/2021 alleged that the defendant has failed to pay monthly rents for 5 consecutive months and terminated the tenancy with effect from 12.10.2020. The receipt of notice/Ex.P2 by the defendant is not in dispute. Clause 15(a) of Ex.P1 deals with determination of tenancy on the ground of nonpayment of rents for two consecutive months. The plaintiff has not invoked Clause 15(a) of Ex.P1 while terminating the tenancy. The defendant is not finding fault with Ex.P2 on the count that the said notice was issued by the plaintiff does not conform to Clause 15(a) of Ex.P1. The defendant is contending that when it has already terminated the tenancy by issuing notice as per Ex.D9/21.06.2020, the plaintiff has no right to terminate the tenancy which was in fact not in existence.
138. Clause 15(b) of Ex.P1 is an omnibus clause which covers the grounds specified in Clause 15(a) of Ex.P1 also. The plaintiff has provided two months time to vacate the premises to the defendant. The defendant has stated that it has not paid rents from April 2020 onwords. The DW1, 2 and 3 have deposed that the defendant has vacated the premises on 17.08.2020 much prior to the expiry of two months from date of Ex.D9 i.e. 21.06.2020. If really the defendant had an intention to continue the tenancy it could have paid arrears of rent within the expiry of first 30 days/one month well before the expiry of notice period stated in Ex.P2. The plaintiff has /72/ Com.OS.287/2021 filed the suit on 12.04.2021 by granting ample opportunity to the defendant to vacate the schedule premises and clear the outstanding dues. It is significant to note that the defendant was in receipt of termination notice/Ex.P2 issued by the plaintiff before 20.08.2020. The defendant had all the opportunities to bring to the notice of the plaintiff that it has terminated the tenancy vide e-mail communication dated:21.06.2020 and is vacating the premises on or before 20.08.2020. Had the defendant informed the plaintiff to adjust the arrears of rent against the refundable interest free deposit of ₹.4,00,000/-, the termination notice dated:12.08.2020/Ex.P2 issued by the plaintiff would have become unenforceable. The defendant has not chosen to respond the plaintiff but has informed the plaintiff that it has already terminated the tenancy through its reply notice dated: 02.12.2020/Ex.P5, issued after four months. The entire facts and circumstances show that the defendant has failed to act in accordance with the terms and conditions of lease deed and has failed to prove that it has terminated the tenancy w.e.f. 20.08.2020 by issuing notice vide e-mail dated:21.06.2020. In such circumstances the termination notice dated:12.08.2020/Ex.P2 issued by the plaintiff is a valid notice and binds the parties to the lease agreement. Thus the plaintiff has proved that he has terminated the tenancy of the defendant in respect of schedule premises w.e.f. 12.10.2020. Accordingly, ISSUE No.1 /73/ Com.OS.287/2021 is answered in the AFFIRMATIVE and COUNTER CLAIM ISSUE No.2 is answered in the NEGATIVE.
ISSUE No.2, 3, 4, 6 and COUNTER CLAIM ISSUE No.3:
139. The plaintiff is contending that the defendant was in possession of the schedule premises till 18.03.2021. The defendant was in illegal occupation over the schedule premises from the date of termination of tenancy i.e. from 12.10.2020 to 18.03.2021 as per terms of the legal notice. The defendant is due as on 18.03.2021 and on date of filing this suit, i.e., arrears of rent as follows.
a. from 01.03.2020 to 30.09.2020 for a 3,21,615/- period of 7 months @ ₹. 45,945/- per month b. From 01.10.2020 to till 04.10.2020 5,928/- 45,945/- PM for 4 days c. Arrears of Rent from 05.10.2020 to 1,44,729/- 04.01.2021 48,243/- P.M. completed months 3 (₹.45,945 + 5% as per Agreement) 26,456/- 05.01.2021 to 17.01.2021 @ 48,243/- At 96,486/-
48243/-
18.01.2021 to 18.03.2021 @ 48,243/-
Notice fee 10,000/-
Sub Total 6,05,214/-
Further notices Fee 15,000/-
Interest on rental arrears from respective /74/ Com.OS.287/2021 dates 01.03.2020 to 30.09.2020 on ₹.45,945/- PM.33,470/-
Interest on rental arrears @ 48,243 from 05.10.2020 to 18.03.2021 7530/- Total Interest of ₹.40000/- (calculated up to Completed month) 40,000/-
External damages of premises admitted 2,00,000/- by the defendant.
20,000/-
Electricity bill arrears
140. The plaintiff is contending that the defendant is liable to pay a sum of ₹.8,80,214/- (Rupees Eight lakhs Eighty thousand two hundred fourteen only) since the said tenancy is for commercial purpose, the Defendant is also liable to pay interest @ 18% p.a. on the said amount from 18.03.2021 till the realization of the said amount as per the first notice dated 12.08.2020, issued by the plaintiff from respective due dates. The plaintiff has adjusted ₹.4,00,000/- interest free deposit against ₹.8,80,214/- and seeking recovery of ₹.4,80,214/-. The plaintiff is also seeking damages at the rate of ₹.3,000/- per day from 12.10.2020 till 18.03.2021 amounting to ₹.4,70,000/-.
141. The defendant has made a counter claim for recovery of ₹.1,42,962/- together with current and future interest at 18% p.a. from the date of suit till the date of realization.
/75/ Com.OS.287/2021
142. The defendant has stated that the Defendant vacated the Schedule Property on 21.08.2020 and has duly paid the rents till 21.08.2020. It is submitted that as per the terms of the lease Deed, electricity charges are to be paid only for such units consumed by the Defendant and not otherwise. The Defendant having vacated the Schedule Property before 20.08.2021, is not liable to pay any alleged dues unlawfully claimed by the Plaintiff.
143. The defendant has furnished break-up of his claim as under:
Sl.No. Explanation Amount
I. Rent for the period INR1,39,136
01.04.2020 to 20.06.2020
II. Rent for the notice period INR1,01,004
21.06.2020 to 20.08.2020
III. Restoration Cost INR1,50,000
Total INR3,87,140
144. Payments to be made by the Defendant to the Plaintiff.
Sl.No. Explanation Amount
I. Rent and interest free INR4,00,000
security deposit
II. Ad hoc advance paid INR 76,577
until June 2020
III. Power Deposit INR 10,080
Total INR5,06,254
/76/
Com.OS.287/2021
145. Therefore, the pending amount payable by the Plaintiff is the excess difference amount between table (i) and
(ii) above mentioned i.e., INR 1,19,114/- [5,06,254 -3,87,140].
146. The PW1 in his cross examination deposed that the defendant has not paid rents from 01.03.2020. The defendant used to pay rents irregularly prior to 01.03.2020 and have received all the rents till 01.03.2020. I have not made any claim alleging arrears of rent before 01.03.2020.
147. I have furnished 3 electricity bills as per Ex.P.11 (a), 11(b) and 11(c) for the months of September, October and November 2020. It is true that the defendant has not utilized the facility of electricity supply to the schedule premises. It is false to suggest that the defendant had vacated the schedule premises in August 2020. In my reply notice Ex.P.6. I demanded the defendant to pay the arrears of rent. I demanded the defendant to hand over the keys at the tenanted premises through my reply notice/Ex.P.6. It is false to suggest that I refused to accept the keys from Mr. Prashanth and other representatives of the defendant though they have offered many time to hand over the keys, on the count that the tenanted premises has suffered severe damage. It is true that the defendant had sent keys through post. I have received the keys after expiry of 10-12 days from the date of receipt of /77/ Com.OS.287/2021 Ex.P.12 notice. I have not furnished the envelope through which the defendant had sent the keys.
148. I got issued legal notice dated 15.02.2021 as per Ex.P.14 to the defendant. In that notice I have admitted the receipt of keys from the defendant.
149. I have calculated rents from 01.10.2020 to 04.10.2020 at ₹.45,945/- per month for 4 days, as the defendant had opened his business during that 4 days. I have calculated rents from 05.10.2020 to 04.01.2021 at ₹.48,243/- per month for 3 months, as the defendant had opened his business during that 3 months. I have calculated rents from 05.01.2021 to 17.01.2021 at ₹.48,243/- per month for 12 days, as the defendant had opened his business during that 12 days. I have calculated rents from 18.01.2021 to 18.03.2021 at ₹.48,243/- per month for 2 months, as the defendant had opened his business during that 2 months. I have not furnished any documents to show the payment notice fees of ₹.10,000/- and further notice fees of ₹.15,000/- to my advocate. ₹.40,000/- is claimed by me towards arrears of electricity and water consumption charges. Now the schedule premises is vacant. No bakery was carrying on business earlier in the said premises. ₹.2,00,000/- is being claimed by me towards damages. I have not furnished any documents to show that I /78/ Com.OS.287/2021 have spent ₹.2,00,000/- towards repairs. I have not furnished any documents to show that the schedule property has suffered damage. I have not furnished detailed description of the damage caused to the schedule premises. I have not furnished break-up of ₹.2,00,000/-. It is false to suggest that I am falsely deposing that the schedule premises had suffered damage and I have spent ₹.2,00,000/- towards repairs. It is false to suggest that I am not able to furnish any documents as I am making false claim. It is false to suggest that I have deposed falsely that I have calculated rents for intermittent periods on the pretext that the defendant had opened the business for the said period. I used to visit schedule premises weekly twice or thrice. In my visits I did not go inside the premises. I did not observe whether the lights were on in the schedule premises at the time of my visits. I am not aware of defendant using generator. I have not furnished electricity consumption bills except Ex.P.11(a), (b) and (c). I have furnished the remaining electricity bills to the employees of defendant, I do not know their names. One of the employees of defendant used to visit mobile shop situated adjacent to the schedule premises at that time I have handed over the bills to him. I do not know his name and phone number. It is false to suggest that I am deposing falsely that I have handed over the bills to an employee of the defendant. I have claimed ₹.20,000/- towards arrears of electricity consumption charges /79/ Com.OS.287/2021 from the defendant. I do not remember the exact period of my demand. I am not demanding for other months. It is false to suggest that I have deposed falsely that the defendant had opened his business in the schedule premises from October 2020 to March 2021. It is false to suggest that the electricity consumption demand charges is zero for the period from October 2020 to March 2021.
150. The schedule premises has been lying vacant since, the date of vacation of premises by the defendant. It is true that PAI Mobile shop, XIOMI Mobile shop and Hardware shop are situated on the right side of schedule premises. FB Cake shop is also situated on the right side of the schedule premises and the same is run by a Muslim gentleman from Tamil Nadu. There is a vacant shop on the left side of the schedule premises. I am the land and lord of PAI Mobile shop, XIOMI Mobile shop and Hardware shop and FB Cake shop. I have rent agreements with those shop keepers. FB Cake shop owner is paying monthly rents of ₹.65,000/-, PAI Mobile shop owner is paying monthly rents of ₹.65,000/-, XIOMI Mobile shop owner is paying monthly rents of ₹.60,000/-, Hardware shop owner is paying monthly rents of ₹.40,000/-. I have not furnished any documents to show the rates of rents deposed by me. I am able to produce the relevant documents. I own 5 shops in the schedule property. The schedule premises is vacant since the /80/ Com.OS.287/2021 time of vacating of the same by the defendant. The PAI mobile shop owner has vacated the tenanted premises some 20 days back.
151. I have not furnished any documents in support of my claim of damages for ₹.3,000/- per day.
152. The plaintiff has exhibited Ex.P19/Lease deed dated:25.04.2018 entered in to by the plaintiff with M/S.Pai International Electronics Ltd., and Ex.P20/lease deed dated:26.04.2019 entered in to by plaintiff with M/S.N.M.Distributors in respect of adjoining premises of suit schedule premises. The PW1 was subjected to cross examination extensively about the dimension of the leased premises of Ex.P19 and Ex.P20. In Ex.P19 monthly rent is reserved at ₹.57,000/- with upward revision of 5% every year in respect of premises measuring 600 Sq.ft. Under Ex.P20 the monthly rent is reserved at ₹.60,000/- in respect of premises measuring 600ft.
153. The DW1 in his cross-examination deposed that I was not a signatory to Ex.P.1. I know the contents of Ex.P.1. The lease period was fixed for a period of 10 years and then Ex.P.1. Clause 15 of Ex.P.1 provides for termination of lease by either party to lease. It is true that the plaintiff has issued /81/ Com.OS.287/2021 notice dated 12.08.2020 as per Ex.P.2. The said notice served on the defendant on 17.08.2020 as per Ex.P.4. The defendant has issued reply notice to Ex.P.2 notice as per Ex.P.5 dated 02.12.2020. The defendant has notified the plaintiff that the lease was terminated by the defendant with effect from 20.08.2020. We have sent the termination notice dated 21.06.2020 through E-mail Id furnished by the plaintiff. The defendant has not mentioned about issuance of termination notice through E-Mail in Ex.P.5. In Ex.P.5 the defendant has stated that the termination notice was served on the plaintiff. The defendant has approached the son of plaintiff Sri. Rakesh Ajjappa to make full and final settlement. It is not true to suggest that we have collected E-mail ID of Rakesh by him, the plaintiff had already furnished E-mail ID of his son. The plaintiff has furnished E-mail ID of his son orally. It is not true to suggest that the plaintiff has not at all furnished E-mail ID of his son to the defendant. Due to Covid we received the notice issued by the plaintiff at a belated dated as we were not functioning at our office.
154. We have shifted our working office to Vijayanagara in 2019. Even now we continued to run our office at Richmond Road address. The Ex.P.2 is addressed to our Mumbai and Richmond Road address. At the time of sending termination notice to the plaintiff we were not working at Bangalore office /82/ Com.OS.287/2021 due to Covid as such we have sent the notice through E-mail. During June 2020 the Government has permitted only essential services to function and not the Corporate sector. Ex.D.9 is the copy of termination notice sent by the defendant through E-mail to the plaintiff's son. Ex.D.25 is a copy of termination notice dated 21.06.2020. I don't exactly remember whether a copy of notice as per Ex.D.25 was furnished to the plaintiff probably a copy might have been furnished to the plaintiff at our store in the schedule premises. I have not furnished any documents to evidence that a copy of Ex.D.25 was furnished to the plaintiff. The document furnished by the defendant along with written statement at page No.118 dated 21.06.2020 is the copy of Ex.D.25. As the witness is admitted the said document is now marked as Ex.P.21. It is not true to suggest that only with an intention to exhibit Ex.D.25, we have obtained the signature of authorized signatory on a copy of Ex.P.21. The plaintiff has issued a reply notice as per Ex.P.6 dated 14.12.2021 to our notice dated 02.12.2020/Ex.P.4. The defendant has received notice issued as per Ex.P.6 as per Ex.P.7/ Postal acknowledgment.
155. We have tried to hand over the keys of schedule premises to the plaintiff personally however, we could not contact the plaintiff as such we have sent the keys of the schedule premises to the plaintiff through RPAD. The keys of /83/ Com.OS.287/2021 schedule premises was not sent to the plaintiff along with notice issued as per Ex.P.5 since the defendant wanted to meet the plaintiff personally and hand over keys, when the plaintiff evaded to contact us, we have sent the keys through RPAD. From commencement of tenancy i.e., 21.10.2014 till date of handing over of keys on 08.02.2021 through RPAD the defendant was having possession of keys of schedule property. In Ex.D.25 and Ex.D.9 the defendant has not made demand for payment counter claim amount. In Ex.D.9 notice the defendant has not demanded restoration cost and cancellation of lease deed. The defendant has sent a copy of notice dated 21.06.2020/Ex.D.25 through courier to the plaintiff, subsequently. We have not furnished in a courier receipt before the Court. It is not true to suggest that we have not sent a copy of Ex.D.25 to the plaintiff through courier. I have not disclosed either in written statement or in my affidavit evidence that the defendant has sent a copy of Ex.D.25 to the plaintiff through courier. It is true that Mr. Sathisha has for forwarded the notice as per Ex.D.9 to me. It is not true to suggest that I have forwarded the letter forwarded by Mr. Sathisha to me, to Sri. Rakesh Ajjappa. It is not true to suggest that Ex.D.9 is edited. It is false to suggest that we have concocted Ex.D.9 for the purpose of this suit.
/84/ Com.OS.287/2021
156. It is true that the plaintiff has demanded arrears of rent from 01.03.2020 in his notice dated 12.08.2020/Ex.P.2. We have stated that the rents are due from 01.04.2020 in Ex.P.5. We have not stated that the defendant has paid rents for the month of March 2020 in our reply notice dated 02.12.2020/Ex.P.5. We have furnished documents before the court to evidence the payment of rents for the month of March 2020, however I do not remember the serial number of exhibit. It is false to suggest that we have made a false claim in our written statement that we have paid rents for the month of March 2020. It is true that the plaintiff has demanded as to get the cancellation of lease deed registered, in his notice issued as per Ex.P.6. The cancellation deed is not registered yet. Since, the plaintiff has not settled our claims, we have not yet executed and registered cancellation deed. At the time of execution of lease deed the defendant had paid a sum of ₹.4,00,000/- as interest free refundable deposit. Subsequently the defendant has paid ₹.10,080/- towards power deposit; ₹.76,500/- as an advance rent. The plaintiff has demanded to pay advance rent amount. The plaintiff orally requested for payment of advancement amount and their exists no written documents. I have furnished documents to evidence the payment of ₹.76,500/- as advance rent amount. There is no covenant enshrined in Ex.P.1 regarding demand and payment of advance rent amount.
/85/ Com.OS.287/2021
157. The DW2 in his cross examination deposed that the plaintiff has issued a notice as per Ex. P2 on 12.08.2020. The defendant has issued reply notice on 02.12.2020. In the reply notice we have stated about the additional security deposit made by the defendant. The defendant was liable to pay rents from April-2020 onwords. The defendant has paid rent for the month of March-2020. I have not furnished document to evidence the payment of rent for the month of March-2020.
158. Immediately after issuing termination notice I met the plaintiff personally. I used to meet the plaintiff in JP Nagar Park. I met the plaintiff approximately for 5-6 times. We have disclosed in our reply notice dated 02.12.2020 that we met plaintiff several times and the plaintiff refused to acknowledge the keys of the schedule premises. It is not true to suggest that the defendant has not averred on these things in the written statement.
159. It is not true to suggest that the defendant has not sent the copy of termination notice through Whatsapp to the plaintiff on 05.08.2020. The defendant had intimated the plaintiff that the defendant would vacate the schedule premises on 17.08.2020. The witnesses volunteers to depose that on 17.08.2020 the plaintiff was present at the schedule premises and when we offered keys of the premises the plaintiff evaded to receive the keys.
/86/ Com.OS.287/2021
160. In para 10 of my affidavit I have deposed that ' he would call me near the schedule property and when I would reach and be waiting, he would call and inform that he would be unable to come to meet'. It is false to suggest that I am deposing falsely to have counter claim reliefs. The plaintiff demanded unreasonable amount towards restoration of schedule property. He made a demand for ₹. 1,50,000/- though in fact it costs ₹. 40,000/- as per our estimation. I have not furnished any documents to show that the estimated cost for restoration of schedule property was ₹. 40,000/- only. It is not true to suggest that the defendant has admitted that the cost of restoration of schedule property was at ₹. 1,50,000/-.
161. The plaintiff has demanded ₹.3,00,000/- towards restoration charges in Ex. P2. It is true that the defendant has offered to pay ₹.1,50,000/- towards restoration charges through amicable settlement. It is true that the schedule premises was provided with 1KVA power supply. It is true that it was agreed between the plaintiff and defendant that the defendant has to seek additional KVA. I have not furnished any documents to show that BESCOM has demanded ₹. 10,080/-.
162. I have taken photograph of schedule premises as per Ex. D1, D2 and D3 approximately during the last week of December 2020, or 1st week of January-2021. The defendant /87/ Com.OS.287/2021 has handed over the keys of the schedule premises to the plaintiff through post on 08.02.2021.
163. It is true that the plaintiff is claiming rent/damage till the date of handing over of keys. It is false to suggest that I am falsely deposing to evade the payment to the plaintiff. We have exhibited payment advice to show that the defendant has paid ad-hoc advance to the plaintiff. In May-2020 the defendant has paid ad-hoc advance amount to the plaintiff as per his request. I have not furnished any documents to show that the ad-hoc advance amount was credited to the account of plaintiff. It is true that the arrears of rent is pending from April-2020.
164. I have seen the schedule property. It is true that there exists 5 or 6 shops belonging to the plaintiff. It is not true to suggest that plaintiff frequently visits his tenanted premises weekly twice or thrice and interact with his tenants. Prior to 21.06.2020, we have not informed the plaintiff that we would vacate the tenanted premises. We have not issued any notice in writing subsequent to 21.06.2020 to the plaintiff informing that 28.07.2020 would be our last working day at the stores and we would vacate the premises on 17.08.2020, however we have spoken to the plaintiff personally on many occasions. I do not remember the specific date of our conversation with the plaintiff.
/88/ Com.OS.287/2021
165. I am not aware of the contents of notice dated 12.08.2020 issued by the plaintiff to the defendant as per Ex.P2. I am not aware of the issuance of reply notice by the defendant to Ex. P2 notice. Myself and Mr Prashanth P called the plaintiff many times to close the matter. We tried to handover the keys of schedule premises to the plaintiff however we could not meet him personally. We have not furnished any documents to show that the schedule premises was kept vacant on and from 17.08.2020. I know the contents of Written statement filed by the defendant. I have to verify whether the averments made by me in para No. 4 of my affidavit evidence are stated by the defendant in the written statement.
166. I know the residential address of plaintiff. We had no difficulty to send keys of the schedule premises through post to the residential address of the plaintiff. We have sent keys of the schedule premises to the plaintiff through Courier Service during august 2020. I am not aware about the application filed by the plaintiff before the District Legal Services Authority, Bengaluru. I am not aware whether there exists any documents to show that the keys were sent to the plaintiff during August 2020.
/89/ Com.OS.287/2021
167. I have no knowledge of Ex. P12. When we met Mr.Ajjappa in the month of September 2020 we did not attempt to hand over keys to him. As on the date of our meeting with Mr.Ajjappa the possession of schedule premises and keys were with the defendant. We had difficulty to hand over the keys to Ajjappa in September 2020. We had designed the interior of the suit premises to suit our convenience. We have removed the fittings and fixtures installed by us while vacating the premises. We did not employ an Engineer to assess the expenses to be incurred towards restoration of the premises as we have not made any structural alteration, except making interior design.
168. The plaintiff had demanded ₹.2,50,000/- towards restoration charges, as a goodwill gesture the defendant had offered to pay ₹.1,50,000/- towards restoration expenses. The plaintiff did not consent to receive ₹. 1,50,000/- towards restoration charges. The plaintiff has not accepted or admitted that he is still liable to refund a sum of ₹. 1,19,114/- to the defendant Company.
169. The DW 3 in his cross-examination deposed that I am aware of the documents furnished by the plaintiff and also the contents of the plaint.
/90/ Com.OS.287/2021
170. I have seen the schedule property. It is true that there exists 5 or 6 shops belonging to the plaintiff. It is not true to suggest that plaintiff frequently visits his tenanted premises weekly twice or thrice and interact with his tenants. Prior to 21.06.2020, we have not informed the plaintiff that we would vacate the tenanted premises. We have not issued any notice in writing subsequent to 21.06.2020 to the plaintiff informing that 28.07.2020 would be our last working day at the stores and we would vacate the premises on 17.08.2020, however we have spoken to the plaintiff personally on many occasions. I do not remember the specific date of our conversation with the plaintiff.
171. I am not aware of the contents of notice dated 12.08.2020 issued by the plaintiff to the defendant as per Ex.P2. I am not aware of the issuance of reply notice by the defendant to Ex. P2 notice. Myself and Mr Prashanth P called the plaintiff many times to close the matter. We tried to handover the keys of schedule premises to the plaintiff however we could not meet him personally. We have not furnished any documents to show that the schedule premises was kept vacant on and from 17.08.2020. I know the contents of Written statement filed by the defendant. I have to verify whether the averments made by me in para No. 4 of my affidavit evidence are stated by the defendant in the written statement.
/91/ Com.OS.287/2021
172. I know the residential address of plaintiff. We had no difficulty to send keys of the schedule premises through post to the residential address of the plaintiff. We have sent keys of the schedule premises to the plaintiff through Courier Service during august 2020. I am not aware about the application filed by the plaintiff before the District Legal Services Authority, Bengaluru. I am not aware whether there exists any documents to show that the keys were sent to the plaintiff during August 2020.
173. I have no knowledge of Ex. P12. When we met Mr.Ajappa in the month of September 2020 we did not attempt to hand over keys to him. As on the date of our meeting with Mr.Ajappa the possession of schedule premises and keys were with the defendant. We had difficulty to hand over the keys to Ajappa in September 2020. We had designed the interior of the suit premises to suit our convenience. We have removed the fittings and fixtures installed by us while vacating the premises. We did not employ a Engineer to assess the expenses to be incurred towards restoration of the premises as we have not made any structural alteration, except making interior design.
174. The plaintiff had demanded ₹.2,50,000/- towards restoration charges, as a goodwill gesture the defendant had /92/ Com.OS.287/2021 offered to pay ₹.1,50,000/- towards restoration expenses. The plaintiff did not consent to receive ₹. 1,50,000/- towards restoration charges. The plaintiff has not accepted or admitted that he is still liable to refund a sum of ₹. 1,19,114/- to the defendant Company.
175. I have no knowledge about the original suit OS No. 498/2018. It is not true to suggest that we are making a false counter claim to escape our liability to pay arrears of rent and damages to the plaintiff. It is not true to suggest that the defendant has not terminated the tenancy as per E-mail communication dated 21.06.2020.
176. From the materials available on record it is evident that the defendant has failed to prove the payment of alleged ad hoc advance amount of ₹.76,000/- to the plaintiff. Hence, the said claim of the defendant is rejected. The admission of DW1 that they have not deducted or paid ₹.19,597/- disentitles the defendant to claim refund of ₹.19,597/- under the head excess payment of TDS. The DW1 has deposed that we have orally informed the plaintiff about the demand made for power deposit of ₹.10,000/- but has not written any letters to the plaintiff. He has not furnished the demand bill issued by BESCOM as also receipt for having paid the power-deposit. In the absence of proof of payment of power-deposit of /93/ Com.OS.287/2021 ₹.10,080/- by the defendant, the defendant is not entitled to seek refund of power deposit of ₹.10,080/- from the plaintiff.
177. The plaintiff is claiming restoration charges at ₹.2,00,000/-. He has failed to furnish materials in support of his claim. In view of categorical admission of defendant in the written statement, notices and evidence of its witnesses if the restoration charges is fixed at ₹.1,50,000/- no prejudice would be caused to either of the parties.
178. The defendant is contending that in spite of best efforts made by the defendant the plaintiff has refused to accept the keys of schedule premises, as such the defendant is not liable to pay either rents or damages subsequent to 20.08.2020. The defendant is also contending that the schedule premises was let out by the plaintiff to some other tenants as such he has not suffered any loss and is not entitled for damages.
179. A close scrutiny of the evidence available on record show that the claim of the defendant that it made repeated attempts to handover the keys of schedule premises failed on account of plaintiff's refusal is not backed by any genuine materials. When the defendant has chosen to terminate the tenancy by sending e-mail to the e-mail ID of Sri.Rakesh /94/ Com.OS.287/2021 Ajjappa, s/o. Sri.Ajjappa, plaintiff, there was no hindrance for the defendant to send an e-mail communication to Sri.Rakesh Ajjappa requesting him to prevail over his father Sri.Ajjappa to receive the keys of schedule premises from the defendant. The defendant has sought to contended that the officials of the defendant tried to persuade the plaintiff to accept the keys in their personal meetings with Sri.Ajjappa. The defendant had all the options to send the keys through the post as has been done by it on 08.02.2021. The DW1 deposed in his cross examination that Plaintiff Sri.Ajjappa was present when the defendant vacated the premises physically, if the said version were to be believed, the defendant would have persuaded the plaintiff to accept the keys then and there itself. If the plaintiff had refused to accept the keys nothing prevented the defendant to cause notice to the plaintiff requiring him to accept the keys immediately. The plaintiff had already caused termination notice as per Ex.P2 and the defendant was in receipt of said notice before vacating the schedule premises physically, in such circumstances the defendant ought to have exercised due diligence. Instead of acting in a swift manner the defendant chose to send the keys only during February 2021 and sought to contend that the plaintiff has not suffered any loss of revenue on and from 20.08.2020 since he has let out the premises to some other tenants.
/95/ Com.OS.287/2021
180. The defendant has lost sight of the fact thought it has vacated the suit schedule premises physically, the constructive possession of suit schedule premises remained with till it has sent the keys to the plaintiff through RPAD in February 2021. It is not the case of the defendant that the plaintiff broke open the locks of schedule premises and barged in to the premises and let out the same to other tenants. The defendant has lost sight of another factor that it was incumbent upon it to get the registered leased deed Ex.P1 cancelled through a registered instrument soon after it vacated the premises. The defendant having failed to discharge its obligations as a model tenant is now contending that the plaintiff is not entitled to recover damages/rents on and from 20.08.2020. Hence, the contentions raised by the defendant are rejected. The plaintiff has terminated the tenancy w.e.f. 12.10.2020 by issuing notice as per Ex.P2. The defendant has not placed any materials to show that it has paid rents for the month of March 2020. Hence, the defendant is liable to pay arrears of rent from March 2020 till 11.10.2020. The defendant is liable to pay damages from 12.10.2020 to 18.03.2021.
181. The plaintiff is claiming arrears of rent from 05.10.2020 to 04.01.2021 at ₹.48,243/- pm and ₹.48,243/-pm from 05.01.2021 to 17.01.2021 and from 18.01.2021 to /96/ Com.OS.287/2021 18.03.2021 at ₹.48,243/- The plaintiff is also claiming damages at ₹.3,000/- per day from 12.10.2020 to 18.03.2021. The plaintiff is not entitled to claim arrears of rent and damages simultaneously for the same period. He has to chose either the arrears of rent or damages. Clause 4 of Ex.P1 provides that Rent Commencement date shall be from 5.10.2014 and it is for a duration of 10 years from 5.10.2014. Clause II (1) of Ex.P1 provides for lump sum monthly rent of ₹.40,000/- with escalation @ 5% for every year on the last paid rent. Hence, the tenancy year commences on 5 th October of every year and ends on 4th October of succeeding year. The escalation clause regarding rent operates from the end of each tenancy year. Hence, the plaintiff is entitled to seek recovery of arrears of rent from 5th March 2020 to 11th October 2020 and damages from 12.10.2020 to 18.03.2021.
182. The plaintiff has not furnished any materials to show that he is entitled for damages at ₹.3,000/- per day except exhibiting Ex.P19 and Ex.P20. In Ex.P20, the monthly rent is reserved at ₹.60,000/- The rent payable in respect of suit premises for the month of September is ₹.45,945/- Had the tenancy continued beyond 12.10.2020, the defendant was liable to pay rents with an escalation by 5% on rents for the previous month i.e. on ₹.45,945/-. Considering the recitals of Ex.P19 and Ex.P20, if the rate of damages is fixed at ₹.2,000/-
/97/ Com.OS.287/2021 per day no prejudice would be caused to the plaintiff or defendant. Hence, the rate of damages payable by the defendant is determined at ₹.2,000/- per day from 12.10.2020 to 18.03.2021.
183. The plaintiff has claimed interest on arrears of rent at ₹.33,470/- from 01.03.2020 to 30.09.2020 and ₹.7530- from 05.10.2020 to 18.03.2021 in all ₹.40,000/- As observed above the plaintiff is not entitled to claim interest and damages simultaneously for the same period. Hence, the plaintiff is entitled claim interest of ₹.33,470/- from 01.03.2020 to 30.09.2020.
184. The plaintiff has claimed notice charges of ₹.10,000/- and further notice charges of ₹.15,000/-As per Order XX-A CPC the plaintiff is entitled to recover notice charges of ₹.25,000/- from the defendant.
185. The plaintiff has claimed electricity consumption charges of ₹.20,000/- He has exhibited Ex.P11(a) ₹.10,870/-, Ex.P11(b) ₹.839/- and Ex.P11(c) ₹.437/- in all ₹.12,146/-. He has not furnished receipts for having paid ₹.12,146/- or ₹.20,000/- towards electricity consumption charges. Hence, the plaintiff is not entitled to recover ₹.20,000/- or ₹.12,146/- from the defendant towards electricity consumption charges.
/98/ Com.OS.287/2021
186. The plaintiff is entitled to recover following amounts from the defendant by giving deduction to interest free refundable deposit of ₹.4,00,000/- paid by the defendant.
Arrears of ₹.3,38,997-70 : 3,39,000-00
(Rounded off)
Interest on arrears of rent : 33,470-00
Damages : 3,84,000-00
Notice charges : 25,000-00
External damages : 1,50,000-00
TOTAL : 9,37,470-00
(Less) Security deposit : 4,00,0000-00
TOTAL : 5,37,470-00
187. The defendant is liable to pay a sum of ₹.5,37,470/- together with interest at 18% p.a on the arrears of ₹.3,39,000/- from 12.10.2020 till the date of realisation.
188. The plaintiff and defendant have entered into lease agreement vide registered lease deed Bg.No.BNG(U)JNR6007/ 2014-15/BK I page 2-11 dated 21.10.2014. The plaintiff has established that he has validly terminated the tenancy. If the encumbrance pertaining to suit schedule property continues in the records of Sub-Registrar it would cause unnecessary complications to the plaintiff. The defendant has not made any /99/ Com.OS.287/2021 efforts to get the cancellation Deed executed and registered caneling Ex.P1. The plaintiff is entitled to get the cancellation of Lease dated 21.10.2014. The defendant is liable to get the cancellation of lease deed dated 21.10.2014. In view of the above discussion, Issue No.1 and 5 are answered in the Affirmative, Issue No.2, 3, 4 and 6 are partly Affirmative, Counter Claim Issue No.2 and 3 in the Negative.
189. Counter claim Issue No.1: The defendant is contending that the he has not valued the suit relief properly and the Court fee paid thereon is insufficient.
190. The plaintiff has valued the suit relief at ₹.4,80,214/- and has paid the total court fee of ₹.32,164/-. Subsequently on 19.02.2022 the plaintiff has filed another valuation slip and has paid court fee of ₹.31,425/- towards plaint prayer (b). Thus, the plaintiff has paid requisite court fee on suit reliefs.
191. In view of payment of requisite court fee on suit reliefs this issue does not survive for consideration.
192. Issue No.7 and Counter Claim Issue No.4: In view of findings on Issue No.1 to 6 and Counter Claim Issue No.1 to 3, the plaintiff is entitled to for suit reliefs as per final order and the defendant is not entitled for counter claims /100/ Com.OS.287/2021 reliefs. Accordingly, Issue No.7 is answered partly Affirmative and Counter Claim Issue No.4 in the Negative.
193. Counter Claim Issue No.5: In view of findings on Issue No.1 to 7 and Counter Claim Issue No.1 to 4, I pass the following ORDER The suit filed by the plaintiff is decreed in part with costs on the following terms:
The defendant is liable to pay a sum of ₹.5,37,470/- (Rupees Five Lakhs thirty seven thousand four hundred and seventy only) together with interest at 18% p.a on the arrears of ₹.3,39,000/- (Rupees Three lakhs thirty nine thousand only) from 12.10.2020 till the date of realisation.
The defendant is directed to join with the plaintiff to execute and register the cancellation deed cancelling the registered lease deed Bg.No.BNG(U)JNR6007/2014-15/BK I page 2-11 dated 21.10.2014 and the parties shall bear the expenses equally.
The counter claim made by the defendant is hereby dismissed.
/101/ Com.OS.287/2021 The office is hereby directed to send a copy of the judgment to the plaintiff and defendant through e-mail as per Order XX Rule 1 CPC as amended by Section 16 of Commercial Courts Act, 2015.
(Dictated to the Stenographer, corrected, signed and then pronounced by me in the open court on 25th day of NOVEMBER 2022) (S.J.KRISHNA) LXXXIX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
(CCH-90) ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 : Sri.Ajjappa List of documents exhibited on behalf of the plaintiff:
Sl.No. Particulars of documents Ex.P.
1. Registered lease deed dated Ex.P.1 21.10.2014
2. Office copy of Legal notice dated Ex.P.2 12.08.2020
3. Postal receipts ( 2 numbers) Ex.P.3(a) & 3(b)
4. Postal acknowledgment Ex.P.4
5. Reply notice issued by the Ex.P.5 /102/ Com.OS.287/2021 defendant dated 02.12.2020
6. Rejoinder notice dated 14.12.2020 Ex.P.6
7. Postal acknowledgment Ex.P.7
8. Postal receipts (2 numbers) Ex.P.8(a) & 8(b)
9. Endorsement issued by Senior Ex.P.9 Superintendant of posts
10. Postal acknowledgment Ex.P.10
11. Electricity consumption bills (3 Ex.P.11(a),(b) numbers) & (c)
12. Notice issued by the defendant Ex.P.12 dated 08.02.2021
13. Postal cover in which Ex.P.12 was Ex.P.13 sent
14. Reply notice dated 15.02.2021 Ex.P.14 issued to the defendant
15. Postal receipts ( 2 numbers) Ex.P.15(a) &
(b)
16. Postal acknowledgment Ex.P.16
17. Track consignment issued by Ex.P.17 (a) & Department of posts (2 numbers) (b)
18. Non-starter report issued by DLSA Ex.P.18 Bengaluru District (city) in PIM 95/2021
19. Lease agreement dated 25.04.2018 Ex.P.19 entered into by the plaintiff and M/s Pai International Electronics Limited.
20. Lease agreement dated 26.04.2018 Ex.P.20 entered into by the plaintiff and M/s N.M. Distributors.
/103/ Com.OS.287/2021 List of witnesses examined for the defendant/s:
DW1 : Sri.Vijay K.C. DW2 : Sri.Prashanth P. DW3 : Sri.Veeresh Maski List of documents marked for the defendant/s:
Sl. Particulars of Documents Ex.D.
No.
1. Photo print outs of suit schedule Ex.D1 to
property (PW1) Ex.D3
2 Certified copy of Written statement filed Ex.D4
in O.S.No:498/2018 (PW1)
3 Certified copy of written statement filed Ex.D5
by D3 in O.S.No:498/2018(PW1)
4 Certified Copy of statement of objection Ex.D6
of defendant No:3 to application u/o.VI R17CPC filed by plaintiff in O.S.No:498/2018(PW1) 5 Copy of Order passed by Hon'ble NCLT Ex.D.7 Ahmedabad Bench dt.05.09.2019 6 Certification of Incorporation Ex.D.8 7 E-mail dated 21-06-2020 along with Ex.D.9 attachment - Termination Notice (subject to objections of plaintiff) 8 Payment advice dt 06-03-2020 along Ex.D.10 with journal voucher 9 Payment advice dt 04-07-2016 Ex.D.11 10 Payment advice dt 24-08-2020 Ex.D.12 /104/ Com.OS.287/2021 11 Payment advice dt 20-07-2020 along Ex.D13 with journal voucher
12. E-mail dt 30-03-2021 Ex.D.14
13. 65B Certificate-Vijaya K C Ex.D.15
14. Copy of E-mail dt 01-08-2019 Ex.D.16
15. Form No. 16 A dt 30-07-2018 Ex.D.17
16. Form No. 16 A Dt 14-11-2018 Ex.D.18
17. Form No. 16 A Dt 05-02-2019 Ex.D.19
18. Form No. 16 A Dt 03-06-2019 Ex.D.20
19. Whatapp Chat dt 19-05-2020 Ex.D.21
20. E-Mail dt 28-07-2020 Ex.D.22
21. E-mail dt 17-08-2020 Ex.D.23
22. Whatapp Chat dt 19-05-2020 Ex.D24
23. Copy of notice dated 21-06-2020 Ex.D25
24. 65B Certificate Ex.D26
25. Power of attorney executed by Ex.D27 defendant Company in favor of DW1,2and 3 and others dated:28.04.2021
26. Certificate u/s.65B of Evidence Act Ex.D28
27. E-mail trails dated: 09.10.2020 Ex.D29 (S.J.KRISHNA) LXXXIX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
(CCH-90) **** Digitally signed SJ by S J KRISHNA KRISHNA Date: 2022.12.02 01:28:46 -0500