Bangalore District Court
Shri.J.Janardhan vs Estate Manager on 28 March, 2016
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41)
AT BENGALURU.
Dated this the 28th day of March 2016.
PRESENT
SRI.JINARALAKAR. B.L.,
B.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.4614/2013
PLAINTIFF : SHRI.J.JANARDHAN,
S/o. Late A.Jayaram Naidu,
Aged about 59 years,
R/o. No.6, K.V. Temple Street,
Vanarpet Main Road,
Viveknagar Post,
Bengaluru-560 047.
(By Sri.A.Ram Mohan, Advocate.)
AND:
DEFENDANT: ESTATE MANAGER,
Indus Tower Ltd.,
No.12, Tower-D,
Subramaniaya Arcade,
7th Floor, Bannerghatta Main Road,
Bengaluru-560 029.
(By Sri.B.J.Mahesh, Advocate.)
*****
i) Date of Institution of the 26.06.2013
suit.
ii) Nature of the suit. Ejectment.
iii) Date of the 09.07.2014
2 O.S.4614/2013
commencement of
recording of evidence.
iv) Date on which the 28.03.2016
judgment was pronounced.
v) Total Duration Year/s Month/s Days
02 09 02
***
JUDGMENT
The plaintiff has filed this suit against the defendant directing the defendant to remove the collapsed tower and its accessories from the roof of the schedule property - All that piece and parcel of roof of property No.6, K.V. Temple Street, Vanarpet Main Road, Viveknagar Post, Bengaluru- 560 047, measuring approximately 150 sq. ft. on the terrace and bounded on East by: property of Sri.Purushotham, West by: S.R.Krishna Gas Agency, North by: Road, South by: Property of Smt.Susheela, to pay arrears of rent of Rs.1,49,200/- with 18% interest from the date of suit till the date of actual payment and also to pay future rent at the rate of Rs.13,700/- per month from the date of suit till the disposal of the suit, to return the roof in 3 O.S.4614/2013 the same good condition as it was handed over to him and to pay costs, etc. .2. The averments of the plaint in brief are that:
The plaintiff is the owner of the schedule property. The defendant has requested to install mobile tower on the portion of terrace of the schedule property and the plaintiff has permitted for the same and the defendant started the work on 04.02.2006. A Deed to that effect was drafted later on 25.03.2005, which is with the defendant. It was agreed that the defendant shall pay monthly rent of Rs.13,700/- and an advance of Rs.70,000/- for permissive usage of the portion of the terrace of the schedule property to erect one metallic tower frame in which three mobile receiver disk / antenna mobile towers shall be installed and accordingly they were installed on 04.02.2006 and named as Vodafone Tower & TATA.
The defendant was paying rents regularly till 01.05.2011 and on the same day mobile tower collapsed 4 O.S.4614/2013 and fell on the roof of the schedule property damaging the roof and the building. The plaintiff wrote a letter dated 14.05.2011, which was received by the defendant on 16.05.2011 informing of collapse of mobile tower. The plaintiff informed the defendant the same day over phone by way of abundant caution, the letter was written. In the said letter, the plaintiff requested the defendant to remove the collapsed mobile tower and accessories, till the date of cleaning the debris, he is entitled to collect rent and the defendant shall pay all the repair charges caused to the roof, walls of the schedule property. The letter was addressed to one Mr.Ajay Kumar and his assistant Mr.Venkatesh.
The plaintiff claimed damages of Rs.47,750/-towards repairing the damage caused to the schedule property and neighbouring properties. The defendant approached the plaintiff negotiated the damages and agreed to pay a sum of Rs.40,000/- and paid the same on 12.05.2011. However, the defendant did not remove the debris, the 5 O.S.4614/2013 tower etc., from the roof of the schedule property, which continued to damage the schedule property even today. Rs.40,000/- was used only to repair the damage caused to the schedule property and neighbouring property. The defendant is the duty bound to return the roof of the schedule property in the same good condition and this can be done by the defendant only after removing of debris. A letter to that effect dated 14.05.2011 has been issued by the plaintiff and received by the defendant. The plaintiff also mentioned in the said letter that after deducting the rent, balance deposit would be refunded. However, till date, the defendant has not bothered to remove the collapsed tower and accessories from the roof. The plaintiff sent several mails to the defendant, which have been received and not bothered to reply. At last the plaintiff issued a Legal Notice dated 05.02.2013 to the defendant narrating the entire history and claiming rent of Rs.1,78,100/- till the date of Legal Notice. Till May 2013, 3 months rents to be added, which will be Rs.41,100/- Accordingly, the total rent as on date is Rs.2,19,200/-. The 6 O.S.4614/2013 defendant has received the Legal Notice on 06.02.2013 and inspite of the same, he has not bothered to reply or repay the arrears of rent or clear the debris. From the arrears of rent of Rs.2,19,200/-, the advance amount of Rs.70,000/- when deducted, the balance arrears of rent payable by the defendant to the plaintiff is Rs.1,49,200/-. The defendant is refusing to pay the said amount without any reason inspite of several demands. The plaintiff is entitled to collect interest of 18% p.a. of Rs.1,49,200/- from the date of suit till realization.
The defendant has to return the terrace after cleaning the debris as it was given to him in good condition. Hence, the plaintiff has filed the present suit.
.3. In pursuance of suit summons, the defendant appeared through counsel and filed written statement denying the material averments / allegations of the plaint regarding damage to the roof of the building due to collapse of mobile tower, issuance of Legal Notice dated 06.02.2013, due arrears of rent, etc. However, the 7 O.S.4614/2013 defendant admitted tenant under the plaintiff, enhanced rent at the rate of Rs.13,700/- per month, payment of refundable Security Deposit of Rs.70,000/- and collapse of tower on 01.05.2011. Further, the defendant contended that the collapse of tower is not due to any fault either in construction or on the equipments, but it is resultant of vis-majore and there is no negligence attributable to the defendant. There was no much damage, nevertheless as a goodwill measure, at the instance plaintiff, a sum of R.40,000/- was paid towards the alleged damages. Since the tower become un-functional, the defendant has decided to remove equipments and shift to some other site and accordingly, the plaintiff was intimated, but despite several requests, the plaintiff did not allow for removal of the equipments from the suit schedule property. The defendant has paid rents till December 2012 and plaintiff is not allowing to remove the equipments and debris from the suit schedule property and rents will not be paid from January 2013. The defendant is always ready and willing to clear the debris. As there is no arrears of rent, 8 O.S.4614/2013 deducting the Security Deposit would not arise and the plaintiff is liable to refund the same. The plaintiff is not entitled for any amount as claimed. The defendant is always ready and willing to remove the balance equipments subject to plaintiff co-operate for the same. There is no cause of action and prays to dismiss the suit with exemplary costs.
.4. On the basis of above pleadings, the following Issues framed:
1. Whether the plaintiff proves valid and loss termination of tenancy of defendant in respect of the suit schedule property?
2. Whether the plaintiff is entitled for Rs.1,49,200/- with 18% interest towards mesne arrears of rent?
3. Whether the plaintiff is entitled future rents of Rs.13,700/- p.m. as prayed in the plaint?
4. Whether the plaintiff is entitled for the relief of possession and arrears of rent and damages as prayed?
5. What Order?9 O.S.4614/2013
.5. In support of the case, the plaintiff examined as PW.1, got marked documents at Ex.P.1 to Ex.P.6 and closed the side. The defendant got examined its Executive-Legal as DW.1, got marked document at Ex.D.1-Copy of Special Power of Attorney and closed the side.
Heard arguments an both side.
.6. My answers to the above Issues are:
Issue No.1 -in the affirmative.
Issue No.2 -partly affirmative Issue No.3- in the affirmative.
Issue No.4 -in the affirmative.
Issue No.5 -As per final order for the following:
REASONS .7. ISSUE No.1: The plaintiff contended that the defendant has installed mobile tower on the terrace of the schedule property on monthly rent and the same was collapsed on 05.01.2011, due to which damage caused to the roof of the building, the plaintiff has requested to remove the collapsed mobile tower and accessories and he is entitled to collect the rent, but the defendant has not 10 O.S.4614/2013 removed the debris and issued letter on 14.05.2011, but the defendant has not complied to the letter, etc. Per contra, the defendant contended that he is always ready to remove the equipments and debris, but the plaintiff himself is not allowing the same etc. The plaintiff himself examined as PW.1 who in his affidavit stated regarding the defendant installing mobile tower on the terrace of the schedule property on monthly rent, collapse of tower, informing the same to the defendant and also to remove the tower and accessories, till the date of cleaning the debris, he is entitled to collect rents, non-removing of debris and writing a letter on 14.05.2011, etc., by reiterating the averments of the plaint and got marked documents at Ex.P.1 to Ex.P.6. Per contra, the defendant got examined its official Executive Legal, as DW.1 who in his affidavit evidence stated regarding the defendant deciding to remove the equipments and intimating the same to the plaintiff, but 11 O.S.4614/2013 the plaintiff not allowing for the same and not liable to pay arrears of rent as claimed by the plaintiff, etc. It is not in dispute that the defendant is tenant under the plaintiff on monthly rent of Rs.13,700/- and collapse of mobile tower on 01.05.2011. The plaintiff has produced copy of e-mail dated 03.03.2012 at Ex.P.1, which shows the plaintiff intimating the defendant to settle the amount till date and remove the materials and restore the premises on the same condition. The plaintiff also produced copy of notice dated 05.02.2013 at Ex.P.6, which shows issuance of notice to the defendant stating about the execution of Lease Agreement on rent of Rs.13,700/- per moth, collapse of tower, causing damage, non-removal of equipments totally from the terrace and entitling to collect the rent of Rs.13,700/- per month from 01.01.2012, asking to pay due arrears of rent, failing which to initiate legal action, etc. DW.1 in his cross-examination admitted the plaintiff writing a letter stating that till removal of tower from the roof is entitled for rent. Though the plaintiff / 12 O.S.4614/2013 PW.1 in his cross-examination admitted that he has not allowed the workers of the defendant in the month of February 2012 to remove the tower, but the plaintiff contended that he has not allowed to remove the materials, since the defendant has not paid the arrears of rent and settled the amount. The defendant has not produced any reliable documentary evidence to show that he made attempt to remove the materials by paying arrears of rent or settling the amount. The plaintiff having issued notice as per Ex.P.6 has terminated the tenancy.
Hence, the plaintiff has proved the valid termination of tenancy of the defendant in respect of the schedule property, accordingly, I answered Issue No.1 in the affirmative.
.8. ISSUES NO.2 & 3:- As these Issues are connected to each other, I have taken both together for discussion for the sake of convenience and to avoid repetition. 13 O.S.4614/2013
The plaintiff has claimed arrears of rent of Rs.2,19,200/- and deducting the deposit amount of Rs.70,000/- and the defendant is liable to pay arrears of rent of Rs.1,49,200/- with interest at the rate of 18% p.a. from the date of suit till the date of payment and also future rent at the rate of Rs.13,700/- per month from the date of suit till disposal of the suit. The plaintiff has issued notice as per Ex.P.6 stating about the execution of Lease Agreement on rent of Rs.13,700/- per moth, collapse of tower, causing damage, non-removal of equipments totally from the terrace and entitling to collect the rent of Rs.13,700/- per month from 01.01.2012, asking to pay due arrears of rent, failing which to initiate Legal Notice, etc. DW.1 in his cross-examination defendant the plaintiff writing a letter stating that till removal of tower from the roof, he is entitled for rent. Though the plaintiff / PW.1 in his cross-examination admitted that he has not allowed the workers of the defendant in the month of February 2012 to remove the tower, but the plaintiff contended that he has not allowed to remove the materials, since the defendant 14 O.S.4614/2013 has not paid the arrears of rent and settled the amount. The defendant has not produced any reliable documentary evidence to show that he made attempt to remove the materials by paying arrears of rent or settling the amount. .9. DW.1 in his affidavit evidence stated regarding payment of rent till December 2012. The plaintiff / PW.1 in his cross-examination also admitted that the defendant might be paid the rent from the month of October 2012 to December 2012 through cheque bearing No.169033 dated 15.10.2012 for Rs.45,870/-. The defendant having paid the rent till December 2012, the contention of the plaintiff that the defendant is liable to pay arrears of rent from 01.01.2012 as per Ex.P.6, is untenable. The defendant having not removed the debris / materials from the suit schedule property, the plaintiff is entitled to collect the rent at the rate of Rs.13,700/- per month from the defendant from January 2013 and also future rent at the rate of Rs.13,700/- per month till delivery of vacant possession of the schedule premises. Considering the 15 O.S.4614/2013 nature of the claim being arrears of rent and future rent, plaintiff is not entitled for the interest. Hence, the plaintiff is entitled for arrears of rent at the rate of Rs.13,700/- from 01.01.2013 till the date of suit and also entitled for future rent at the rate of 13,700/- per month from the date of suit till delivery of vacant possession of the schedule premises by removing debris / materials from the terrace of the schedule premises. Hence, for these reasons, I answered Issue No.2 partly affirmative and Issue No.3 in the affirmative.
.10. ISSUE NO.4:- The plaintiff has filed this suit against the defendant directing the defendant to remove the collapsed tower and its accessories from the roof of the schedule property, to pay arrears of rent of Rs.1,49,200/- with 18% interest from the date of suit till the date of actual payment and also to pay future rent at the rate of Rs.13,700/- per month from the date of suit till the disposal of the suit, to return the roof in the same good 16 O.S.4614/2013 condition as it was handed over to him and to pay costs, etc. The plaintiff having proved the termination of tenancy and arrears of rent, is entitled for the possession of the schedule premises from the defendant by removing collapsed tower and its accessories and arrears of rent and future rent. Hence, the plaintiff is entitled for the reliefs of possession arrears of rent, accordingly, I answered Issue No.4 in the affirmative.
.11. ISSUE NO.5:- In view of the reasons and discussions on the above Issues No.1 to 4, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed with costs as under.
The defendant is hereby directed to handover vacant possession of the schedule premises to the plaintiff by removing the collapsed tower and its 17 O.S.4614/2013 accessories from the roof of the schedule property within three months from today, and further directed to pay arrears of rent at the rate of Rs.13,700/- per month from 01.01.2013 till filing suit and further directed to pay future rent at the rate of Rs.13,700/- from the date of suit till delivery of vacant possession of the schedule property by removing the collapsed tower and its accessories.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 28th day of March 2016.) (JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 -J.Janardhan S/o. Late A.Jayaram Naidu. 18 O.S.4614/2013 DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF:
Ex.P.1 Copy of E-mail dated 03.03.2012.
Ex.P.2 Copy of E-mail dated 21.03.2012.
Ex.P.3 Letter dated 14.05.2011 written to the defendant.
Ex.P.4 Postal Receipt. Ex.P.5 Postal Acknowledgment. WITNESSES EXAMINED ON BEHALF OF DEFENDANT:
DW.1 -Yeshwanth c.s., S/o. Sri.Shivaraj.
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANT:
Ex.D.1 Certified copy of Special Power of
Attorney.
(JINARALAKAR B.L.)
XL Addl.City Civil & Sessions judge,
Bengaluru.
19 O.S.4614/2013
ORDER
(SRI.JINARALAKAR B.L.)
XL Addl.City Civil & Sessions judge,
Bengaluru.