Karnataka High Court
Sri. Rajiv Kumar Gupta vs Sri. Somashekar Murthy @ H.P Somashekar on 5 December, 2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.976 OF 2013
BETWEEN
1. Sri. Rajiv Kumar Gupta,
S/o. R.N.Gupta,
Aged about 54 years,
2. Sri. Dilipkumar Gupta,
S/o. R.N.Gupta,
Aged about 52 years,
Both at New No.8,
Old No.22, 25, J-88,
22nd Cross, Kilari Road,
Bangalore-560053.
Also at No.105,
Kilari Road,
Bangalore-560053. ...Appellants
(By Sri. K.Jayaram, Advocate)
AND
1. Sri. Somashekar Murthy @
H.P.Somashekar,
S/o. H.Puttaiah,
Aged about 58 years,
(since Deceased, by his LRs)
2
1(a). Smt. P.Radha,
W/o. late H.P.Somashekar,
Aged about 53 years,
1(b). Sri. H.S.Chandra Kumar,
S/o. late H.P.Somashekar,
Aged about 29 years,
1(c). Smt. H.S.Shruthi,
D/o. late H.P.Somashekar,
W/o. Shabarisha,
Aged about 31 years,
Parties at 1(a) to 1(c) are
Residing at No.8,
22nd Cross, Kilari Road,
Bangalore-560053.
(R1a to c amended vide court order
Dated 1.3.2017)
2. Sri. Narasimha Murthy,
S/o. H.Puttaiah,
Aged about 48 years,
3. Smt. Savithri,
D/o. H.Puttaiah,
Aged about 53 years,
4. Smt. Sowbhagya,
D/o. H.Puttaiah,
Since deceased by her LRs,
4(i). Sri. R.Srinivas,
S/o. late Sri. Ramaiah,
Aged about 61 years,
4(ii). Sri. Deepak,
S/o. R.Srinivas,
Aged about 32 years,
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4(iii). Kum. Chaithra,
D/o. R.Srinivas,
Aged about 28 years,
All are Residing at:
No.8, 22nd Cross,
Kilari Road,
Bangalore-560053. ...Respondents
(By Sri. G.S.Venkata Subba Rao, Advocate for
R1(a to c) & R2 & R3 & R4(1 to 3))
This RFA is filed under Section 96 of CPC, against the
judgment and decree dated 19.02.2013 passed in
O.S.No.6022/2009 on the file of the V-Additional City Civil
Judge, Bangalore, decreeing the suit for direction.
This RFA coming on for hearing this day,
the court delivered the following:
JUDGMENT
The appellants are the partners of the defendant firm, namely M/s Gupta and Company. The suit O.S.6022/2009 was filed for the eviction of the defendant from non- residential premises bearing No.8 (old Nos. 22, 25 and J-88), 22nd Cross, Kilari Road, Bengaluru-53 consisting of ground floor and first floor (referred to as 'the suit property' hereinafter).
2. The plaintiffs 1 to 4 are the children of one Gowramma who let out the suit property to the defendant in 4 the year 1997 on a monthly rent of Rs.4,500/-, the tenancy month being the English calendar month. Gowramma died on 4.12.2006. The defendant defaulted in payment of rent and it fell in due of Rs.1,84,500/- covering the period January 2006 to May 2009. The plaintiffs required the suit property for their personal use and occupation and requested the defendant to vacate the suit property. As the defendant did not vacate the suit property, the plaintiffs terminated the tenancy or lease by issuing a notice on 16.6.2009. Defendant received the notice and issued untenable reply. It did not vacate the suit property. Hence, the plaintiffs filed a suit.
3. One of the partners of the defendant firm, namely Rajiv Kumar Gupta, filed written statement, denied all the plaint averments and disputed the relationship of landlord and tenant between the plaintiffs and the defendant. The specific contention taken is that the defendant was earlier inducted as a tenant by Gowramma. Sometime later she agreed to sell the suit property to the defendant for a total consideration of Rs.22,00,000/- and executed an agreement 5 of sale on 6.4.2006. She also received advance amount of Rs.5,50,000/- and agreed to execute the registered sale deed. Therefore, from the date of agreement, the relationship of landlord and tenant came to an end and the possession of the defendant was enhanced to the status of agreement holder in possession. As agreed, the defendant stopped payment of rent. After demise of Gowramma, the plaintiffs were supposed to execute sale deed. As they did not come forward, the defendant issued a legal notice to the plaintiffs on 22.4.2009 demanding of them execution of the sale deed. The plaintiffs did not receive the notice intentionally and, therefore, defendant instituted a suit for specific performance, O.S. 3085/2009 and the said suit is still pending. In the written statement it is clearly denied that Rajiv Kumar Gupta and Dilip Kumar Gupta do not have any kind of relationship with M/s Gupta and Company and that they are not its partners.
4. The trial court framed eight issues. After assessing the oral evidence of PW1 and DW1, and also documentary evidence produced by the plaintiff as per Exs. P1 to P7 and 6 the defendant as per Ex.D1 to D7 came to the conclusion that the plaintiffs were entitled to a decree that they had sought for. The trial court has held that there exists relationship of landlord and tenant between the plaintiffs and the defendant and that the tenancy was validly terminated by the plaintiffs by issuing a notice. For holding that there exists relationship of landlord and tenant between the parties, the trial court has relied upon Ex.P6, the reply issued by the defendant's advocate to the plaintiffs' advocate. In the said reply the address of the defendant is mentioned as No. 8, old No. 22, 25, J-88, 22nd Cross, Kilari Road, Bengaluru-53. This address refers to suit property. Therefore, the trial court inferred from this address that the defendant was a tenant in the suit property. Further, it has been noticed by the trial Court that DW1, while swearing to an affidavit filed by him in the court in lieu of examination- in-chief, gave the same address. In Ex.D2 also DW1 has admitted that the defendant is doing business in the schedule property as a tenant. The trial court has held that DW1 has also given an admission in Ex.P7 that defendant is 7 a tenant. Based on these evidence, the trial Court has drawn an inference that there is relationship of landlord and tenant.
5. As regards termination of tenancy, the trial court referred to Ex.P1, the legal notice issued by the plaintiffs and also Ex.P6, the reply notice issued by the defendant and has held that there is valid termination of tenancy. The trial court has also held on issue No. 4 that after terminating the tenancy of the defendant, it is liable to pay damages at the rate of Rs.15,000/- per month. It has assigned the reason that the suit property is situated in a commercial locality in the heart of Bengaluru City. Considering the age of the building and the nature of tenancy, it arrived at an opinion that Rs.15,000/- per month is the reasonable amount that can be fixed as damages payable by the defendant.
6. Questioning the correctness of the judgment of the trial court, the learned counsel for the appellant/defendant argued that when the defendant was able to prove that it entered into an agreement of sale with the mother of the 8 plaintiffs to purchase the suit property, the relationship of landlord and tenant came to an end. The defendant has produced the agreement of sale as per Ex.D1. The defendant also paid an amount of Rs.5,50,000/- to the plaintiffs' mother being the earnest money in relation to sale transaction. The moment there came into existence an agreement of sale, the possession that the defendant held as a tenant enlarged into that of a prospective purchaser. The trial court has not appreciated the evidence in this regard and thus has committed an error. In support of his argument, he has relied upon the judgment of the Supreme Court in the case of ARJUNLAL BHATT MALL GOTHANI AND OTHERS vs G.C.DUTTA AND ANOTHER [(1973) 2 SCC 197] AND R.KANTHIMATHI AND ANOTHER vs BEATRICE XAVIER (MRS) [(2000) 9 SCC 339].
7. Second point he has argued is that the notice issued by the plaintiff was not served on the defendant at the suit property address. Just because the postal cover was delivered at a different address, the trial Court should not have drawn an inference that there was service of notice on 9 the defendant firm. Ex.P2 clearly shows that the notice was delivered at the address No. 31, Jyothi Building, BVK Iyengar Road. Rajiv Kumar Gupta and Dilip Kumar Gupta are the partners of the firm by name Gupta and Company carrying on business at this address and not in the address of the suit property. Therefore, there was no valid termination of tenancy.
8. His further argument is that for fixing damages of Rs.15,000/- per month, the trial court ought to have ordered for an enquiry as contemplated under Order 20 Rule 12 CPC. Without any basis, the trial court has committed an error in ordering the defendant to pay an amount of Rs.15,000/- per month towards damages.
9. The learned counsel for the respondents/plaintiffs argued that there is a clear admission by the defendant in his written statement that it was inducted as a tenant of Gowramma, the mother of the plaintiffs in respect of the suit property. Rajiv Kumar Gupta and Dilip Kumar Gupta are the partners of this firm. Gowramma entered into an 10 agreement with these two persons and not the firm. Ex.D1 makes it very clear. So the firm continued to be tenant. The partners have taken an untenable stand that by virtue of the agreement of sale, the defendant-firm became a prospective purchaser and therefore the relationship of landlord and tenant came to an end. This agreement does not improve the status of the defendant-firm. Merely because Rajiv Kumar Gupta and Dilip Kumar Gupta are its partners, they cannot contend that they are in possession of the suit property by virtue of agreement of sale, Ex.D1 which does not disclose handing over possession to them. For this line of argument he gathers support from the judgments of the Supreme Court in the cases of D.S.PARVATHAMMA vs A. SRINIVASAN [(2003) 4 SCC 705] and SHASHI KAPILA vs R.P.ASHIWN [(2002) 1 SCC 583].
10. The learned counsel also referred to Section 14 of the Indian Partnership Act to argue that the tenancy right of the firm is distinct and separate from the property rights of the partners. On this point, the learned counsel placed reliance on the judgment of the Supreme Court in ARJUN 11 KANOJI TANKAR vs SANTARAM KANOJI TANKAR [1969 (3) SCC 555].
11. It was his further argument that the suit had been decreed ex-parte earlier and for seeking to set aside the ex- parte judgment, the defendant initiated a proceeding under Order 9 Rule 13 CPC numbered as Misc. 814/2010. Ex.P7 is the document in this regard and in the said document there is a clear admission that defendant is the tenant. Therefore, for all these reasons, there exists relationship of landlord and tenant, the trial Court has rightly come to the conclusion in this regard.
12. With regard to termination of tenancy he argued that Ex.P1 is the copy of the legal notice and Exs. P2 to P5 are the postal acknowledgements and certificate of posting. Ex.P6 is the reply notice. Ex.P2 to 5 clearly show that the legal notice issued for terminating the tenancy was served on the defendant. If Rajiv Kumar Gupta and Dilip Kumar Gupta received the notice at another address, it does not mean that notice was not served upon them. If these two 12 persons were not the partners of the defendant firm, they should have refused to receive the notice. More than that, they got issued reply as per Ex.P6 where they give their address that they are the partners of the defendant firm. The trial court has discussed evidence on this aspect and has rightly come to the conclusion that there is valid termination of tenancy.
13. As regards the quantum of damages to be paid by the defendant after the termination of tenancy, the learned counsel argued that the plaintiffs claim amount of Rs.25,000/- per month. Having regard to the attending circumstances and the locality of the suit property, if the trial court fixed an amount of Rs.15,000/- per month, there is no illegality in it. It is not necessary that enquiry must be held always. Therefore, he argued for dismissal of the appeal.
14. In the light of the above arguments, the points that arise for discussion are as below : -
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(i) Has the trial judge correctly held that there exists relationship of landlord and tenant between the plaintiffs and the defendant?
(ii) Whether the trial judge's conclusion that tenancy was validly terminated is correct?
(iii) Is fixation of Rs.15,000/- towards damages for unauthorized occupation of the suit property by the defendant after the termination of tenancy justifiable?
Point No. (i):-
15. In a suit for ejection, whenever relationship is disputed, it is essential that the plaintiff should prove that relationship. The trial court has given a finding affirmatively on the issue raised in this regard. Before examining whether this finding is correct or not I find it necessary that the oral evidence given by the witnesses requires to be mentioned here.
16. PW1 is the second plaintiff. His evidence in examination-in-chief is reiteration of the plaint. The cross- 14 examination shows that defendant has made an attempt to elicit from him that defendant is not their tenant. Suggestions given to PW1 in this connection are all denied by him. Nothing worth mentioning here has been elicited from PW1 by the counsel for the defendant during cross- examination. DW1 is one of the partners of the defendant firm. While cross-examining this witness a suggestion was given to him that the agreement was towards loan transaction and not an agreement of sale in reality. I do not find anything worth mentioning here.
17. The plaintiffs have not produced any document such as lease deed or a rent note for establishing the tenancy. They rely upon Ex.P1 and P2, the notice and the reply notice. In Ex.P1, it is stated that the defendant is a tenant of the suit property and it was inducted by the plaintiff's mother Gowramma in the year 1997 on a monthly rent of Rs.4,500/-. In Ex.P2, reply got issued by the defendant, there is a clear admission in para 3 that the defendant was inducted as a tenant of the schedule premises by Gowramma and that subsequently there came into 15 existence a sale agreement on 6.4.2006. It is also stated in Ex.P2 that Gowramma agreed to sell the suit property to the defendant for a total sale consideration of Rs.22,00,000/- and that she received an amount of Rs.5,50,000/- towards advance payment of the part of sale consideration and, therefore, from the day the sale agreement came into existence the relationship of landlord and tenant came to an end. The defendant has also produced document as per Ex.D1 to prove that an agreement of sale came to existence on 6.4.2006.
18. Therefore, from Exs. P1 and P2 it is possible to draw an inference that the defendant firm occupied the suit property as tenant of the plaintiffs' mother Gowramma. Moreover, in the written statement itself in para 13 it is stated that defendant was inducted as a tenant. In view of these admissions in Ex.P2 and the written statement, a clear inference can be drawn that defendant occupied the suit property initially as a tenant. What remains to be examined is whether from the date of 16 agreement, the relationship of landlord and tenant came to an end or not?
19. If Ex.D1 is perused to ascertain this aspect, what can be noticed is that the agreement is actually between Gowramma and Rajiv Kumar Gupta and Dilip Kumar Gupta. The defendant firm is not in picture in the agreement. Nowhere it is stated that the purchasers were intending to purchase the suit property on behalf of the firm. The inference that can be drawn from Ex.D1 is therefore that the partners of the firm might have entered into agreement with Gowramma in their individual capacity to purchase the suit property and not that the defendant firm wanted to purchase the property. Clause 9 of this agreement states that the possession of the property would be delivered to the purchasers at the time of registration of the sale deed.
20. It is true that in Arjunlal Bhat (supra) and R.Kanthimathi (supra) the Hon'ble Supreme Court has held that when an agreement of sale comes into existence, the relationship of landlord and tenant comes to an end and that 17 the rights and liabilities of the parties have to be worked out on the basis of that agreement.
21. It is also held by the Supreme Court in the case of Shashi Kapila (supra), a judgment referred to by the learned counsel for the respondents that a partnership firm is an association of persons and every partner can have his own separate existence from the firm. Any right which a partner has over any property other than the partnership property, it remains as his individual asset. In this case, there came into existence on 17.4.1986 an agreement of sale between the landlord and one firm by name one M/s Shiva and Company. Partner of this firm, in his individual capacity, resisted against his eviction by taking shelter under agreement. In this context the Supreme Court held that the tenant was not entitled to take protection because the agreement was between the landlord and the firm. In this case, the position is quite opposite. The firm is the tenant and agreement of sale is between the erstwhile landlord and the partners of the firm. Therefore, the 18 defendant cannot contend that the relationship of landlord and tenant came to an end.
22. The partners also cannot claim to be in possession of the suit property in part performance of the agreement. Clause 9 of the agreement makes it very clear that the possession was not delivered to the purchasers. The learned counsel for the respondent has referred to the Supreme Court judgment in D.S.Parvathamma (supra) to argue that the benefit of Section 53A of Transfer of Property Act cannot be claimed by the purchasers under the agreement. As has been held by the Supreme Court in this judgment, the partners in their individual capacity cannot claim to have continued possession of the suit property when the agreement does not disclose the fact of handing over possession to them. Therefore, it is now evident that the plaintiffs became the landlords after demise of their mother Gowramma and that the defendant-firm is a tenant. Ex.D1 is between Gowramma and Rajiv Kumar Gupta and Dilip Kumar Gupta who cannot claim immunity from eviction by disputing the relationship of landlord and tenant. For these 19 reasons, I come to the conclusion that the trial court has rightly come to the conclusion to answer issue No.(i) in affirmative. Point No. (i) is answered in affirmative. Point No. (ii):-
23. Ex.P1 is the legal notice dated 16.6.2009. Ex.P2 is the postal acknowledgement. Ex.P3 to P5 are certificates of posting. Notice was addressed to the defendant firm to the suit property address. In fact, the defendant got issued a reply as per Ex.P6. The argument of the appellants' counsel that there was no valid termination of tenancy cannot be accepted. It is true that Ex.P2 shows that the notice issued to the defendant was delivered to the different address, i.e., No. 31, Jyothi Building, BVK Iyengar Road, Bengaluru. In the postal acknowledgement, Ex.P2, Rajiv Kumar Gupta and Dilip Kumar Gupta are written and they are shown as partners. If according to these partners, Gupta and Company carrying on business at suit property is different from another Gupta and Company carrying on business in Jyothi Building, they should not have received the notice. Moreover, in the reply to the notice as per Ex.P6, not only 20 the names of the partners are mentioned as Dilip Kumar Gupta and Rajiv Kumar Gupta, but also their address is given as No. 22, 25, J-88, 22nd Cross, Kilari Road, Bengaluru. Here they mention about agreement of sale dated 6.4.2006. Therefore, from the conjoint reading of all these documents, only inference to be drawn is that the partners of the defendant firm did receive the notice. Ex.P1 makes it very clear that tenancy was terminated on expiry of 15 days from the date of notice. Termination is therefore valid. Trial court has rightly answered this issue and I also concur with the said findings. Point No. (ii) is answered in affirmative.
Point No. (iii):-
24. In the plaint, the plaintiffs claimed damages of Rs.25,000/- per month after termination of the tenancy.
They also claimed arrears of rent to the tune of Rs.1,62,500/- being the arrears for the three years' period. The trial court has fixed the damages of Rs.15,000/- per month having regard to the fact that suit property is situated 21 in a commercial place of the City of Bengaluru. He opines that Rs.15,000/- is a meager amount, but he decided to grant Rs.15,000/- damages for the reason that the building of suit property was quite old. It is evident that the trial court did not hold an enquiry as contemplated under Order XX Rule 12 of CPC.
25. The vehement argument was that without holding an enquiry as contemplated under Order XX Rule 12 CPC, the trial court should not have directed the defendant to pay damages of Rs.15,000/-. The learned counsel for the respondent argued that there is no need to hold enquiry always. If the evidence on record is sufficient to arrive at a conclusion as to what is the amount to be fixed towards damages, the court can take a decision. He further argued that the rate of rent at the inception of tenancy in the year 1997 was Rs.4,500/-. The suit was filed in the year 2009. The suit property is situated in a commercial locality and the neighbouring shops are fetching higher rent. It was suggested to DW1 in the cross-examination that in the year 2009 itself the suit property would have fetched Rs.25,000/- 22 per month. He may have denied the suggestion, but the respondent-plaintiff has made an attempt to bring to the notice of the court that it was the prevailing rent at that time. The trial court instead of fixing the damages at Rs.25,000/-, has made it Rs.15,000/-. In all respects this amount is correct. There is no need to disturb this finding.
26. It is true that Order XX Rule 12 CPC contemplates an enquiry. This enquiry is necessary when the evidence placed before the court by the parties is found to be insufficient to determine the amount towards rent or damages or mesne profits as the case may be. In this case, the plaintiffs claim damages for the use and occupation of the schedule premises by the defendant after termination of tenancy. It is true that except suggestions given to DW1that the suit property would have fetched Rs.25,000/- in the year 2009 itself, no other material is placed. The court did not grant Rs.25,000/- as claimed by the plaintiffs, rather an amount of Rs.15,000/- is ordered to be paid. There is no dispute that the suit property is situated in a commercial locality in the heart of Bengaluru City. The trial court has 23 taken cognizance of this aspect. The tenancy commenced in the year 1997. Suit was filed in the year 2009. It appears that there was no enhancement of rent periodically. If there were to be enhancement once in two years or three years, probably the rent the defendant was supposed to pay would have been around Rs.10,000/- in the year 2009. Once termination of tenancy takes place, payment of rent does not come into picture. Any payment that the defendant has to make is towards damages for use and occupation which can be higher than the rent. Therefore, it cannot be said that Rs.15,000/- determined by the trial court is exorbitant or unreasonable. Hence, this point is answered in affirmative.
27. In view of the foregoing discussion, I come to the conclusion that this appeal fails and hence it is dismissed with costs. Judgment of the trial court is confirmed.
Sd/-
JUDGE ckl