Bangalore District Court
Sri. Mahantara Math Trust vs M/S. Sree Jagadish Colour Company on 20 February, 2015
IN THE COURT OF XV ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY(CCCH NO-3)
Dated this the 20th day of February, 2015
BEFORE:
SHRI.SARVODAYA SHETTIGAR,
XV Addl. City Civil & Sessions Judge.
O.S.3917/2002
Plaintiff Sri. Mahantara Math Trust, Chickpet,
Bangalore-53 represented by its President.
(By Sri.Gurumath G.R, Advocate)
Vs.
Defendants 1.M/s. Sree Jagadish Colour Company,
No.19, P.S.Achar Lane, A.S.Char Street Cross,
Chickpeth, Bangalore-53.
2.D.V.Jagadish M/s. Jagadish Colour Company,
No.19, P.S.Achar Lane, A.S.Char Street Lane,
Chickpeth, Bangalore-53.
since dead by LRs.
2(a) Sri. Vedamurthy, aged about 38 years, S/o
late D.V.Jagadish, residing at No.477, 40th Cross,
9th Main Road, 5th Block, Jayanagar,
Bangalore-41.
2(b) Sri. Shekar, aged about 33 years, S/o late
D.V.Jagadish, residing at No.477, 40th Cross, 9th
Main Road, 5th Block, Jayanagar, Bangalore-41.
(By Sri. A. Anilkumar Shetty, Advocate)
2 OS No.3917/2002
Date of institution of the suit : 19/6/2002
Nature of the suit : Suit for ejectment
Date of commencement of
recording of evidence : 25/08/2007
Date on which the judgment
was pronounced : 20/2/2015
Duration : day/s month/s year
01 08 12
JUDGMENT
The suit is one for grant of decree directing the defendants to quit, vacate and deliver vacant possession of the schedule premises to the plaintiff and to direct an enquiry of mesne profits from the date of suit till delivery of possession of the schedule premises with costs and such other reliefs.
The plaint schedule property is all that part and parcel of the shop premises bearing No.19, P.S.Achar Lane, Bangalore measuring 11 feet x 19 feet.
3 OS No.3917/2002
2. The facts in brief as per the plaint averments are that the plaintiff Trust has been functioning since decades, managing and administering the property attached to the Mahantara Math, one of the oldest Maths in Bangalore. It is further stated that the plaintiff has been providing free boarding and lodging facility for poor students, who are studying Vedas, Agamas, Astrology and Sanskrit language. It also provides residential facilities for various Matadipathis and Jagadgurus who visit Bangalore City for propagation of religion. Monthly functions and religious discourses will be held in the precincts of the Math and for conducting all these activities, the Trust depends only on the income derived by way of rents of the properties let out to several tenants. In these days of sky rocketing prices of all goods and services, the Trust has to invariably exploit its scarce resource i.e. the immovable property under its management. This can be achieved by getting all the tenants vacated and constructing a shopping complex of at least three floors, which after completion would yield high income every month at least 8 to 10 times more rent than what the Trust is getting at present, in addition to Rs.50 4 OS No.3917/2002 to 60 lakhs as goodwill. It is further stated that the first defendant has been a tenant of the plaintiff on month to month basis, at the rate of Rs.350/- per month. On 31/10/2001 plaintiff had issued a statutory notice to the defendants, terminating the tenancy with effect from the 15th December 2001. The 2nd defendant has replied to the notice, raising a technical objection that the notice ought to have been addressed in the name of the company, instead of being sent to him personally. This objection is untenable since immediately after his name, the company's name is also mentioned, which satisfies the requirement of the notice. However, by way of abundant caution and to avoid technical defects, both the company and the individual are made defendants in the suit. Hence the suit for ejectment.
3. After service of suit summons, the defendants appeared through their learned advocate and filed their written statement denying the plaint averments and it is stated that the suit is not maintainable either in law or on facts. It is further stated that the suit is totally misconceived and does 5 OS No.3917/2002 not survive for consideration because the statutory/ mandatory notice as contemplated under Section 108 of the Transfer of Property Act has not been complied with and the notice issued is totally defective and it is not in consonance with the provisions of the Act. The tenancy date stated in the notice is false and it is only an imaginary and concocted version of the plaintiff made out in the notice just in order to evict defendants. Hence the notice is defective in law and takes away the jurisdiction of this court so far as the case of the plaintiff against these defendants are concerned. It is further stated that the schedule furnished is incorrect and the measurement of the property furnished is totally incorrect and the schedule property will not come under the purview of the jurisdiction of this court as it is lesser than 14 square metres. The imaginary measurement 11 feet x 19 feet has been furnished by the plaintiff in order to attract the jurisdiction of this court. Actually the premises being non residential one is lesser than 14 square meters. It is further stated that when the premises is below 14 square metres the HRC proceedings will lie but not the ejectment proceedings. The plaintiff's case 6 OS No.3917/2002 fails on that count and the suit is liable to be dismissed. It is further stated that the defendants are eking out their livelihood only by the earnings from the schedule premises. Except the schedule premises the defendants have no other suitable alternative accommodation for carrying on the business which now they are carrying on in the schedule premises. The business now carried on by the defendants can be done more effectively in and around the locality where the schedule premises is situated. The schedule premises is quite ideal and suitable for the colour business which the defendants are now carrying on. It is further stated that the plaintiff's intention is only to extract higher rents/ advances and heavy goodwill. In fact, the defendants pleaded their inability to comply with the illegal demands of the plaintiff which has resulted in the filing of the above suit against the defendants. The motive of the plaintiff is ulterior one and is not a bonafide one. It is further stated that as there was a serious threat of dispossession, with an ulterior motive from the plaintiff, the defendants have filed OS No.3842/2002, CCH-19, on the file of this court for a decree of permanent 7 OS No.3917/2002 injunction restraining the plaintiff from disturbing the enjoyment of the peaceful possession of the schedule property. As a counterblast to the suit filed by these defendants, the plaintiff has filed the present suit in order to cause a wrongful loss to the defendants. It is further stated that the ulterior motive of the defendants can be seen from the legal notice issued by them demanding heavy advance and goodwill and higher rent. It is further stated that the managing committee member of the plaintiff Trust had given the SB account number and orally informed the defendant to remit the monthly rentals to their SB account number 60, at Canara Bank, Chickpet Branch, Bangalore and accordingly the plaintiff is regularly depositing the amount to the said account. Even after the service of notice, the defendant has deposited the latest monthly rent to the said account. Hence, the plaintiff has waived of his right of termination by right of waiver. It is further stated that even right now in the best interest of the Trust and in order to continue in the schedule premises, this defendant is ready to pay reasonable enhanced rent and advance to the plaintiff. As such, the suit deserves to 8 OS No.3917/2002 be dismissed. It is further stated that if the provisions of the Karnataka Rent Act, are not applicable to the religious and charitable institutions, the right of the plaintiff lies in filing a suit for recovery of possession by paying court fee and not by filing ejectment proceedings. So contending, the defendants have requested the court to dismiss the suit.
4. During the pendency of the suit, defendant No.2 Sri. D.V.Jagadish died and thereafter his two sons have been brought on record as his legal representatives.
5. On the basis of the above pleadings of the parties, the following issues have been framed.
ISSUES
1. Whether the defendant No.1 is a tenant in respect of suit premises?
2. Whether the termination of Tenancy is as per law?
3. Whether the plaintiff is entitled to the possession?
4. To what relief?
9 OS No.3917/2002
6. The President of the Plaintiff Trust by name Sri. Yajaman Srikanthappa S/o late Yajaman Kenchappa got himself examined as PW1. The Secretary of the plaintiff Trust by name Sri. N.R.Pandit Aradya S/o N. Rudraiah got himself examined as PW.2. The documents Ex.P.1 to P.4 and Ex.P.1(a) and (b) have been marked on behalf of the plaintiff Trust. Defendant No.2(a) Sri. Vedamurthy got himself examined as DW.1 and through him documents at Ex.D.1 to D.20 have been marked.
7. Heard arguments.
8. My findings on the above issues are as follows:
ISSUE No.1 : In the Affirmative. ISSUE No.2 : In the Affirmative. ISSUE No.3 : In the Affirmative. ISSUE No.4 : As per final order for the following:
REASONS
9. ISSUE No.1 : As can be seen from the evidence adduced on behalf of the parties, there is not much dispute that the defendant No.1 M/s. Sree Jagadish Colour Company is a tenant in respect of suit premises. The evidence of DW.1 10 OS No.3917/2002 Vedamurthy who is the son of original defendant D.V.Jayaram would clearly indicate that the initial rent was Rs.350/- which was increased to a sum of Rs.2,000/- in the year 2005 and further increased to a sum of Rs.3,000/- in the year 2010. The documents like rent receipts produced by the defendants themselves such as Ex.D.5 to D.18 would clearly indicate that there is a relationship of landlord and tenant between the plaintiff and defendant M/s. Sree Jagadish Colour Company. Accordingly, the issue is answered in the affirmative.
10. ISSUE No.2 : Ex.P.1 is the copy of legal notice dated 31/10/2001 for termination of tenancy. As can be seen from the reply notice dated 24/11/2001 there cannot be any doubt that the termination notice had been served on the defendant. On a perusal of Ex.P.1 it shows that the defendant No.2 has been requested to vacate and handover the vacant possession of the suit schedule premises on the expiry of 15th day of December, 2011. Therefore, there is more than 30 days time given to the defendant to vacate the suit premises as required under Section 108 of the Transfer of Property Act. 11 OS No.3917/2002
11. As rightly submitted by the learned counsel for the plaintiff it is seen that during the present proceedings, the defendant had made an application under Order 6 Rule 17 of Code of Civil Procedure which was I.A.No.XI for amendment of written statement to contend that the Trust is not a registered trust and also to contend that the defendant No.1 is a partnership firm and that all the partners should have been made as parties to the suit and that therefore the suit is technically defective. This court by order dated 2/1/2009 had rejected the said I.A.No.XI filed on behalf of the defendants. This order dated 2/1/2009 has not been challenged and thus it has attained finality. The contention of the defendants that the Trust Deed is not registered cannot be accepted, because a perusal of the certified copy Ex.P.2 would clearly show that the Trust Deed dated 25/4/1947 had been registered on 2/8/1947. Therefore, at this stage these technical objections raised by the defendants are not sustainable. Therefore, the termination of tenancy of the defendants is as per law and accordingly the issue is answered in the affirmative. 12 OS No.3917/2002
12. ISSUE No.3 : Having proved that the defendant No.1 Company is a tenant in respect of suit premises under the plaintiff Trust and further that the termination of tenancy is as per law, it follows that the plaintiff Trust is entitled to recovery of possession of the petition schedule premises which had been let out for rent to the defendant No.1 M/s. Sree Jagadish Colour Company. The defendants have not produced any evidence in support of their contention that the suit schedule premises being non-residential measures less than 14 square meters and therefore only HRC proceedings will lie and that the present ejectment suit is not maintainable. Accordingly, the issue is answered in the affirmative.
13. ISSUE No.4 : As per the say of DW.1 Sri. Vedamurthy, since about 1954 from the time of the father of the defendants, they are the tenants in the suit schedule premises. It has also come in the evidence that the suit schedule premises is situated in a busy commercial locality in the city of Bangalore. Having regard to the facts and circumstances of the case, I am of the opinion that granting 4 months time to the 13 OS No.3917/2002 defendant to deliver vacant possession of the suit schedule premises to the plaintiff Trust is reasonable. Accordingly in view of my findings on the above issues and for the reasons stated above, I proceed to pass the following:
ORDER Suit of the plaintiff for ejectment is hereby decreed with costs.
The defendants are hereby directed to quite, vacate and deliver vacant possession of the plaint schedule premises to the plaintiff Trust within a period of 4 months from today.
Draw up a decree accordingly. (Dictated to the Judgment Writer, transcribed by him, corrected and then pronounced by me in open court on this the 20th day of February, 2015) (SARVODAYA SHETTIGAR), XV Addl.City Civil Judge, Bangalore City.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Yajaman Srikanthappa PW.2 : N.R.Pandit Aradya 14 OS No.3917/2002 WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1 : Vedamurthy DOCUMENTS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : Copy of legal notice dated 31/10/2001. Ex.P.2 : Certified copy of the Trust Deed dated 25/4/1947 (registered on 2/8/1947) Ex.P.3 : Copy of reply notice dated 24/11/2001. Ex.P.4 : Minute book of the Trust.
Ex.P.4(a) : Relevant portion at page 37 authorizing PW.1 and PW.2 to prosecute the suit.
Ex.P.1(a) : Postal acknowledgement signed by P.2(b) Ex.P.1(b) : Postal acknowledgement signed by P2(a) DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1 : Copy of letter dated 20/12/2008 issued to the Plaintiff Trust on behalf of defendant.
Ex.D.2 : Copy of letter dated 29/12/2008 issued to the plaintiff Trust on behalf of defendant.
Ex.D.3 : Copy of letter dated 8/5/2010 issued to the plaintiff Trust on behalf of defendant.
Ex.D.4 : Copy of letter dated 5/9/2011 issued to the plaintiff Trust on behalf of defendant.
Ex.D.5 : Rent receipt dated 7/6/2008 for Rs.6,000/-. Ex.D.6 : Rent receipt dated 11/9/2008 for Rs.6,000/-. Ex.D.7 : Rent receipt dated 20/12/2008 for Rs.1,483/-. Ex.D.8 : Rent receipt dated 20/12/2008 for Rs.6,741/-. Ex.D.9 : Rent receipt dated 17/2/2009 for Rs.6,000/-.15 OS No.3917/2002
Ex.D.10 : Rent receipt dated 17/2/2009 for Rs.741/-. Ex.D.11: Rent receipt dated 11/2/2010 for Rs.6,000/-. Ex.D.12: Rent receipt dated 11/2/2010 for Rs.742/-. Ex.D.13: Rent receipt dated 10/5/2010 for Rs.18,000/-. Ex.D.14: Rent receipt dated 10/5/2010 for Rs.1,854/-. Ex.D.15: Rent receipt dated 8/11/2010 for Rs.1,854/-. Ex.D.16: Rent receipt dated 8/11/2010 for Rs.18,000/-. Ex.D.17 : Rent receipt dated 4/5/2011 for Rs.19,854/-. Ex.D.18: Rent receipt dated 12/9/2011 for Rs.21,178/-. Ex.D.19: Copy of letter dated 24/3/2010 issued on behalf of plaintiff trust to the defendant regarding monthly rent and service tax.
Ex.D.20: Copy of letter issued on behalf of the plaintiff trust to the defendant through its Chartered Accountants regarding service tax payable on the rent.
(SARVODAYA SHETTIGAR), XV Addl.City Civil Judge, Bangalore City.16 OS No.3917/2002
Judgment pronounced in open court. vide separate order.
ORDER Suit of the plaintiff for ejectment is hereby decreed with costs.
17 OS No.3917/2002
The defendants are hereby directed
to quite, vacate and deliver vacant
possession of the plaint schedule
premises to the plaintiff Trust within a
period of 4 months from today.
(SARVODAYA SHETTIGAR),
XV Addl.City Civil Judge,
Bangalore City.