Bangalore District Court
M/S. Foundation For Academic vs Mr. D. Lingappa on 31 January, 2020
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 31st day of January, 2020.
O.S. No.26202/2012
Plaintiff: M/S. Foundation for academic
studies(FAS)
Having its College at:
No.98,
Addiganahalli Main Road,
Hessargatha Hobli,
Rajanakute,
Bangalore(North)
PIN 560064.
(By Sri. M. Purushotham - Adv.)
V/S
Defendants: Mr. D. Lingappa,
S/o. Late.Doddanna,
aged about 69 yrs.
2. Sri.Vijaykumar,
S/o. Late.D. Lingappa,
aged about 40 yrs.
3. Sri. Srinivas,
2 O.S. No.26202/2012
W/o. Late.D. Lingappa,
Major.
4. Sri. Murthy,
S/o. D. Lingappa,
Major.
All are R/at.No.98,
Addiganahalli Main Road,
Hessargatta Hobli,
Rajanakute,
Bangalore(North)PIN560064.
(Sri.K. Varaprasad- Adv. for defts.No.1 to 4)
Date of Institution of the suit 19.06.2012
Nature of the (Suit or pronote, suit
for declaration and possession, suit SUIT FOR RECOVERY OF MONEY
for injunction, etc.
Date of the commencement of
07.09.2013
recording of the Evidence.
Date on which the Judgment was
31.01.2020
pronounced.
Year/s Month/s Day/s
Total duration 8 05 12
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH74)
3 O.S. No.26202/2012
JUDGMENT
That the plaintiff has filed this suit for recovery of Rs. 3,66,000/ with interest at the rate of 24% P.A. from the date of suit till realization.
2. Brief facts of the plaintiff's case;
It is the case of the plaintiff that the defendants are the absolute owner of the suit schedule property and plaintiff and defendants well know to each other for several years, the plaintiff had approached the defendants sought for accommodates of suit schedule property on lease to run business on monthly Rent of Rs. 1,000/ per month, in respect of portion of the suit property measuring 6,000 Sq Feet, for three years, rental agreement has entered between plaintiff and defendants on 20.12.2008, the plaintiff has paid Rs. 50,000/ to the defendants in terms of agreement dated:
20.12.2008, by way cheques bearing No. 327084 and 327085 dated: 23.02.2008, for sum of Rs. 25,000/, each drawn on 4 O.S. No.26202/2012 Canera Bank, Bangalore, in favour of first defendant and further it is the case of the plaintiff that the plaintiff has paid add deposit of Rs.50,000/ by way cheques bearing No. 327090 in all plaintiff has paid Rs. 1,00,000/ on without any interest.
Further the plaintiff contended that since defendant s did not furnish premises with all amenities as assured by the defendants. Defendants have requested the plaintiff for financial help for renovating the premises as promised,on request of the defendants the plaintiff has again paid Rs. 2,55,000/ to the defendants by way cash, but defendants failed renovate the rental promises even after financial help, hence, the plaintiff decided to shift educational institution and requested the defendants to refund the amount paid by the plaintiff. But defendants failed to repay the said amount. Hence, this suit of recovery of rent.
5 O.S. No.26202/2012
3. In pursuance of the suit summons the defendants, appeared through his counsel and filed written statement contending that the plaintiff has filed false suit suppressing the true facts has not approached this court without clean hands, liable to be dismissed. Defendants have denied the facts that plaintiff and defendants well known to each other, monthly rent of Rs. 1,000/ payment of Rs. 3,55,000/, it is the specific case of the defendants that plaintiff had approached the defendants and requested for accommodation of the suit property and entered on to an rental agreement on 20.12.2008.
4. The plaintiff has required to pay monthly rent of Rs. 10,000/ and security amount of Rs. 1,00,000/, paid Rs.50,000/ as part payment security amount, through cheques on 07.10.2009 and assured that he will pay remaining security amount. But, plaintiff has not paid remaining security amount Rs. 50,000/ and defendants are 6 O.S. No.26202/2012 illiterate persons, taking advantage of the same the plaintiff inserted Rs.2,55,000/. Where defendant has put their signature and created the same. Further the defendant never no assumed there was no condition in the rental agreement for providing furniture and other amenities in the suit premises.
5. The defendants are not liable to provide any furniture to educational institution. It is for the plaintiff who can renovate the rental premises for the suitable for his education institution, the amount paid by the plaintiff has adjusted with rent. The plaintiff has filed false complaint against the defendants for the offense punishable U/S 138 of N.I. Act. With this, the defendant prayed for dismissed against suit.
6. On the basis of the pleadings of the parties, my learned Predecessor has framed the following: 7 O.S. No.26202/2012 ISSUES
1. Whether the plaintiff proves that defendant is liable to pay a sum of Rs. 3,65,000/?
2. Whether the defendant proves that the said amount has been adjusted towards rentals at the rate of Rs.
10,000/ per month?
3. Whether the plaintiff is entitled for interest at the rate of 24% per annum?
4. Whether the plaintiff is entitled for the relief's sought for?
5. What order or decree?
7. The plaintiff is examined as P.W.1 and got marked Exs.P.1 to P.6 and P.W.1 was crossexamined by the learned counsel for defendants. The GPA holder of defendant No.1 is examined as D.W.1 and got marked, after giving sufficient opportunity, the cross of P.W.1 is taken as nil posted for agreement.
8. My answer to the above issues are as follows: 8 O.S. No.26202/2012 Issue No.1 and 3: In the Negative Issue No.2 : In the Affirmative Issue No.4 : In the Negative, Issue No.5 : As per final order, for the following: REASONS
9. ISSUE No.1 and 3: These two issues are inter connected each other. Hence I propose to answer these two issues commonly. In order to prove it's case, the plaintiff institutions has examined it's executive Trustee as P.W.1 and got marked Ex.P.1 to P.6. P.W. 1 has deposed by filing affidavitinlieu of examination in chief, reiterating the averments of the plaint. It is the case of the plaintiff that, the defendants are the owners of the suit property including vacant portion, plaintiff institution has approached the defendants. Requested to give suit property on rent for Running Educational Institution in the premises on monthly 9 O.S. No.26202/2012 rent of Rs. 1,000/ and on Rs 1,00,000/ as security amount for three years and defendants agreed give property on lease, on monthly rent of Rs. 1,000/ and Rs 10,000/ security deposits which is refundable at the time of vacating the suit premises, the plaintiff and defendants have entered in to an Rental Agreement and put their signatures on the rental agreement. Further the plaintiff contended that the defendants have requested the plaintiff for financial help of Rs. 2,55,000/ for providing building amenities such as furnitures, fixctures and fittings as assured by the defendants and plaintiff paid additional Rs.2.55,000/, but the defendants failed furnish building amenities. Hence, plaintiff institution has decided to shift the educational institution to the suitable place. Hence, plaintiff institution has demanded advanced amount of Rs. 3,55,000/. W hen defendant failed to pay the same plaintiff got issued notice same was served replied by the defendant.
10 O.S. No.26202/2012
In support of his oral evidence the plaintiff has produced as money as 6 defendants which have been marked at Ex.P 1 to 6.
10. Ex.P 1 is the unregistered rental agreement dated:
20.12.2008. I have perused Ex.P1 it is clear that, the plaintiff and defendants have entered in to an rental agreement for period of three years, on monthly rent of Rs. 1,000/ on security amount of Rs.1,00,000/, the execution of defendants is not on disputes, it is also not in dispute that the suit schedule property is still in the possession of the plaintiff as it could be seen from the plaint averment.
11. Now it is relevant extract the terms and conditions of Ex.1 Rental Agreement which reads thus:
1. The lessee has agreed to take the said accommodation purely on rental basis for the use of the college occupation. The said lease is 11 O.S. No.26202/2012 to come into force from this day of 27th November 2008.
2. The lessor has agreed to lease the premises along with KEB/Water connection to the lessee for the period of 3 years and further two years provide a fresh lease agreement is executed between the parties.
3. The rent payable by the lessee to the lessor shall at Rs.1,000/ and there shall be escalation of 5% rent for every year till the lease period.
The rent shall be paid on or before the 10th day of every succeeding English calendar month.
4. The lessee has agreed to pay the lessor refundable interest free security deposit amount of Rs.
50,000/(Rupees Fifty Thousand only), by of following cheques bearing Nos. bearing 327084 & 12 O.S. No.26202/2012 327085 for a sum of Rs.25,000/ each, dawn on Canara Bank Bangalore, dated 23.2.2008 in favour of Mr. D. Lingappa, towards said security deposit and will not carry any interest.
5. The lessee has agreed to enjoy and make use of schedule premises for College purpose for which it is leased out and further the same will not be sublet alienate or sublet or Mortgage the schedule property create any charge interest over building/schedule premises.
6. The Lessee shall use the premises for College purpose to accommodate persons belonging to the institution only and shall not sub let the same to any body without owner's consent.
7. The premises has been painted by the owner,hence painting charges 13 O.S. No.26202/2012 to be paid by the lessee at the time of handing over the premises to the owner.
8. In case the lessee fails to pay the rents continuously for a period of two months the lessor shall terminate the lease and shall have the option to evict the lessee.
9. The lessee has agreed to vacate and hand over the vacate possession of the schedule premises on the expiry of the lease and request for further extension/renewal on the terms and conditions that are prevailing on the date of renewal. The lessee has agreed not to do anything which shall be the cause fro nuisance or annoyance to the other occupants of the building and to the property situated in the vicinity of the neighbor hood.
14 O.S. No.26202/2012
12. On perusal of condition No. 3 and 4 it is clear that, the monthly rent has fixed Rs. 1,000/ P.M. and security amount was fixed Rs. 1,00,000/ and issued two cheques No.327084 and 327085 for sum of Rs.25,000/ each.
13. On careful perusal of Ex.P1 Rental Agreement, there is no condition that the defendant shall furnish the furnitures and building amenities. It is the specific case of the plaintiff that the defendant has furnished building furniture and amenities as assured. Now it is relevant extract para 6 of the plaint, which reads thus:
The plaintiff further submits that since the defendants did not furnish the building with amenities such as furniture's fixtures, and fittings as assured by the defendant at the time of handing over the possession of the rented building to the plaintiff due to the non availability of the funds with the defendants and thus requested the 15 O.S. No.26202/2012 plaintiff for a sum of Rs.2,55,000/ (Rupees Two Lakh Fifty Five Thousand Only) to borne the expenses for renovating the same as promised by the defendants, thus considering the requests of the defendants the plaintiff further has paid the sum of Rs.2,55,000/(Rupees Two Lakh Fifty Five Thousand Only) by way of cash to the defendants but inspite of the receipt of the said amount the defendants failed to renovate the rented premises building, but gave evasive answers and did not properly respond to the plaintiff requests and demands. The copy of the Rental Agreement is herewith produced for the kind perusal of this Hon'ble Court.
14. On perusal of para 6 of the plaint as extracted above it is clear that the case of the plaintiff that the defendants have assured the plaintiff to furnish the premises 16 O.S. No.26202/2012 with amenities. But, there is no condition in the Rental Agreement Ex.P1 to the effect that the defendants have to furnish the furniture and other amenities to run the education institution. When there is no requirements in the agreement furnishing furniture by the defendants then question of request by the defendants does not arose to receive the said amount of Rs.2,55,000/ for furnishing the furniture. Further it is clear that, plaintiff has not paid Rs. 2,55,000/ towards renovation of rental premises. But, no such conditions found Ex.P.1 in Rental Agreement. When there is no terms which required the defendants to pay renovation charges, then question of payment Rs.2,55,000/ does not arise, further it is the case of the plaintiff that, defendant NO.1 has executed notes in hand writing on back side of the first page of Ex. P.1 rental deeds, which reads thus:
17 O.S. No.26202/2012
15. I have carefully perused hand writing notes at backs side of first page of the Rental Agreement. On careful perusal of the notes , it is clear that , it is in hand writing of P.W.1 contending that defendant No.1 has received Rs. 2,55,000/ for Development/Renovations for building refundable at the time of vacating the present. It is also seen that the signature of the defendant No.1 appeared above the lost two lines and how the sentence has completed within limited space, how the plaintiff completed sentence above the signatures of the defendant No.1, but still plaintiff was failed to complete the sentence within space available on the signature of the defendant No.1 two lines were not adjusted, hence it is written in small alphabets by the side of signature which is below the signature on which the plaintiff relied on appreciation of the hand writing inserted by the plaintiff I am of the opinion that no prudent man can believe that it does exist it is clear that, the P.W. 1 has 18 O.S. No.26202/2012 forged the document which has been made with intention to cause damage to the defendants and to support the plaintiff claim and made with dishonest and fraudulently intention of it to be believed that such document executed by the defendant No.1 knowingly that the defendant No.1 has not been executed and added this notes dishonestly and fraudulently and same has been used as genuine to cause loss of the defendant No.1 fraudulently.
Further, what prevent the plaintiff took signature of defendants No. 2 to 4 , who are also party to Ex.P 1, no explanation on notes as to why plaintiff did not taken signature of the defendant No. 2 to 4 on the notes.
16. Why this notes has been written on back side 1 st page of Ex.P.1, in common normal course requires if anything is to be added it should be on the last page of the documents not on the meddle of the documents. On perusal of the notes on back side in the of the first page of Ex.P.1 it is clear that, it 19 O.S. No.26202/2012 is not in the common courses. Section 114 of the Indian Evidence Act reads thus:
Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
17. So, way in which the plaintiff has written on Ex.P.1 is not in common courses. Further, it is relevant extract cross of P.W.1 at page 12 , 10th line from the bottom which reads thus:
I had paid my personal amount of Rs. 1,00,000/ to Defendant No.1 for repayment of the said amount the Defendant No.1 had issued a 20 O.S. No.26202/2012 cheque of Rs.1,00,000/ in my favour. As the said cheque was bounced I had filed a private complaint U/s. 200 of CPC R/w Sec. 138 of N.I. Act before the Magistrate Court. The said case was ended in conviction but, the Defendant No.1 had not paid fine amount.
18. On perusal of this portion of the evidence of P.W.1, which reflects that P.W.1 had paid Rs. 1,00,000/ to defendant No.1 for repayment of said amount the defendant No.1 had issued cheques, the P.W.1 has filed complaint against the defendant No.1 for recovering amount in respect of personal transaction with defendant No.1. P.W.1 has filed complaint u/s 200 against defendant No.1. for the offense punishable u/s 138 of N.I. Act, by mis re presenting before the court saying that he is represent plaintiff, Education Institution, so transaction in respect which cheque is said to 21 O.S. No.26202/2012 have been issued is personal transact not plaintiff Educational Institution.
I have perused conditions of Ex. P.1 Rental Agreement and oral documentary evidence, it is clearly established that plaintiff institution has not paid Rs. 2,55,000/ to the defendants.
19. It is the case of the defendants that his evidence remained unchallenged that apart, the plaintiff himself admitted that property in his the possession till to day. But, no rent has been paid by the plaintiff institution, what would be the Balance Amount of rent even at the rate of Rs.1,000/ per month,as on today , it would be Balance for more then 10 years for from the date of Ex.P.1.
20. On appreciation of Ex.P.1, more particularly the endorsement in hand writing appeared on the back side of first page of Ex.P.1, I am of the firm opinion that plaintiff has not approached the court with clean hands and failed to 22 O.S. No.26202/2012 prove that the defendants are liable to pay Rs. 3,55,000/. When plaintiff failed to prove the liability of the defendants the question payment of 24% interest does not arises. Hence, I answer these issues No.1 and 3 in the Negative.
21. ISSUE No 2: It is case of the plaintiff that defendants are the owner of the suit schedule property and plaintiff institution has approach the defendants for taking suit premises on rent for running educational institution in the suit premises. On account of which the Rental Agreement came to be entered into between plaintiff and defendant on 20.12.2008 . As per said agreement the plaintiff has to pay monthly rent to Rs. 1,000/ and security amount of Rs. 50,000/ . But the plaintiff claimed that the defendants failed to provide the necessary amenities in the building to run the institution in the suit premises, on the request made by the defendants the plaintiff has paid Rs. 2,55,000/ for 23 O.S. No.26202/2012 renovation of suit premises but after receiving said amount the defendants failed to renovate the suit premises hence, plaintiff has shifted it's institution for running the educational institution in a suitable building and demanded the defendants for advance amount paid by the plaintiff. When defendants are not paid the advance amount the plaintiff filed the suit for recovery. On perusal of the Ex. P.1 it is clear that, period of lease is for three years but, lease agreement is not registered. But the plaintiff failed to prove the due amount of Rs. 3,55,000/. It is a admitted by the defendant that they have given suit premises to the plaintiff on lease on monthly rent of Rs. 10,000/. And plaintiff has 50,000/ through cheque, has a security amount but the plaintiff has not paid the monthly rent in terms of Ex. P.1. Hence, said amount is adjusted for monthly rent.
22. The plaintiff has admitted that the suit premises is in the possession of the plaintiff even till today. But, there is 24 O.S. No.26202/2012 no oral or documentary evidence to show that the plaintiff have paid the rent in terms of Ex.P.1. The lease agreement is not registered document which is not admissible in evidence but it can be looked in to for collateral purpose. Even if it is accepted the case of the plaintiff that monthly rent is accepted as Rs. 1,000/ it would lead more then advance amount. Lease agreement taken place on 20.12.2008 for period of three years. So, from the date of lease agreement the lease has been terminated on efflexe of time by 21.12.2011. So, the defendants are entitle for monthly rent of Rs. 1,000/ for lease period and thereafter the defendants entitle for damage of Rs.1,000/ for month for the use and enjoyment of the suit premises by the plaintiff after termination of lease. Hence, the defendants have proved that the amount of Rs. 50,000/ has been adjusted for monthly rent. Hence, I answer this issue in the Affirmative. 25 O.S. No.26202/2012
23. ISSUE No.4: The plaintiff has failed to prove the advance amount of Rs. 3,65,000/ by producing relevant documents and considering findings on the Issue No. 1 to 3. I am of the opinion that, the plaintiff is not entitle relief's sought in the plaint. Hence, I answer this issue in the Negative.
24. ISSUE No.5 : Inview of the discussion made on Issue Nos.1 to 4, I proceed to pass the following:
ORDER The suit filed by the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 31st day of January, 2020).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 26 O.S. No.26202/2012 SUIT SCHEDULE PROPERTY All that piece and parcel of premises situated No. 98 Addiganahalli Main Road, Hessargata Hobli Rajanakunte, Bangalore(North) 560064. Consisting Connections as per the following Rooms Measurements. 25x30 Feets2 30x20 Feets2 25x20 Feets1 20x40 Feets1 20x20 Feets1 15x15 Feets1 5 Toilets and bounded on:
North by : Road East by : Hanumanth Rayapha Land South by : D. Lingappa Land West by : Venktagundoru Land ANNEXURES List of witness examined for the plaintiff's side:
P.W.1 Mr. Dr. N. Jayaramaiah, 27 O.S. No.26202/2012 List of documents exhibited for the plaintiff's side:
Ex.P.1 Rental Agreement Ex.P.2 Compliant Dt: 792010 Ex.P.3 Acknowledgment given by police Ex.P.4 Office copy of legal notice Ex.P.5 Postal acknowledgement Ex.P.6 Reply notice
List of witness examined for the defendants' side :
D.W.1 Sri. Srinivas S/o Lingappa List of documents exhibited for the defendants' side:
Nil Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 28 O.S. No.26202/2012 29 O.S. No.26202/2012