Bangalore District Court
Sri.B.N.Suresh vs M/S.Karnataka State on 25 August, 2015
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41)
AT BENGALURU.
Dated this the 24th day of August 2015.
PRESENT
SRI.JINARALAKAR. B.L.,
B.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.3467/2007
PLAINTIFFS: 1. SRI.B.N.SURESH,
Aged about 50 years,
2. SRI.B.N.VIJAY NARASIMHA,
Aged about 46 years,
3. SRI.B.N.SUJAY KUMAR,
Aged about 40 years,
2nd and 3rd plaintiffs represented by
their GPA holder Sri.B.N.SURESH-the
1st plaintiff.
All are sons of late B.P. Narasimha
Murthy, Residents of # 128, 22nd
Main, 3rd Cross, Vijayanagar,
Bengaluru-560 040.
(By Sri.N.S.Sanjay Gowda,
Advocate.)
AND:
DEFENDANTS: 1. M/S.KARNATAKA STATE
FINANCIAL CORPORATION,
No.1/1, Thimmaiah Road, Bengaluru-
560 052.
Represented by its General Manager
(AR),
2
2. M/S. SIMHA COMPLEX PVT. LTD.,
No.54, New, No.17, 3rd Main Road,
Gandhinagar, Bengaluru-9.
Represented by its Managing
Director, Sri.U.R.Bhimasena
S/o.U.R.Ramachar, Major.
(D-1 :By Sri.K.C.Mahesh., Advocate.)
(D-2 :By Sri.A.Y.N.Gupta, Advocate.)
***
i) Date of Institution of the
suit. 03.05.2007
ii) Nature of the suit. Possession & Arrears of rent
etc.
iii) Date of the commence- 25.11.2010
ment of recording of
evidence.
iv) Date on which the 20.08.2015
judgment was
pronounced.
v) Total Duration Year/s Month/s Days
08 03 17
***
JUDGMENT
The plaintiffs have filed this suit against the defendants for possession of the suit schedule property- All that part and parcel of property bearing No.54, New No.17, measuring East to West 100 feet and North to South 50 feet, situated at 3rd Main Road, Gandhinagar, Bengaluru-9, comprising with all structures thereon and bounded on East by: property allotted to the share of O.S.3467/2007 B.P.N.Murthy, West by: 3rd Main Road, North by: Central Jail Building and South by: 10 feet passage of Sri.B.P.N.Murthy and B.P.Rangaswamy's property bearing No.55, new No.18 and to direct the defendants jointly and severally to pay to a sum of Rs.5,58,000/- as claimed in Para-33 of the plaint with interest at the rate of 12% p.a., from the date of suit till the date of actual realization of the due amounts and also to direct the defendants to pay a sum of Rs.1,00,000/- from the date of suit as damages for unauthorized occupation of the suit schedule property and costs, etc. .2. The averments of the plaint in brief are that:
The plaintiffs had leased their vacant site, which was part and parcel of the schedule property under a registered Lease Deed dated 18th December 1985 in favour of the 2nd defendant for specific purpose of erecting a multistoried building. The lease was given for a very low rent, since it was stipulated that the 2nd defendant would invest money within a specific time frame to erect the commercial building and use the 4 property and building therein for a period of 30 years and thereafter, hand over the built up area to the plaintiffs.
The Lease Deed stipulated that the 2nd defendant should begin construction immediately in any event within a period of two years from the date of registration of the Lease Deed having regard to the fact that necessary sanctions and permission from various authorities was required to be obtained for the purpose of erecting the building under the Lease Deed dated 18.12.1985 and Lease Deed also stipulated that the entire construction should be completed within 10 years (including the said two years as stated) from the date of Registration of the Lease Deed and the construction was to be made in accordance with the sanctioned plan and as per the law for both commencement and completion of the building.
The Lease Deed was registered on 18.12.1985 and thus, the construction ought to have commenced within two years i.e., on or before 18.12.1987 and the O.S.3467/2007 construction ought to have been completed on or before 18.12.1995. These are the essential conditions of the contract. The 2nd defendant neither commenced construction before 18.12.1987 nor has the construction is completed before 18.12.1995 and violated the express stipulation of the lease enabling the plaintiffs to determine the lease.
The Lease Deed further stipulates that in the event of failure of the 2nd defendant to commence construction on or before 18.12.1987, the 2nd defendant would be liable to pay 3 times of rent as penalty and if the 2nd defendant fails to complete construction within 10 years, i.e., on or before 18.12.1995, he would be liable to pay 3 times of the rent that was payable as on 11th year as penalty. As on 18.12.1987, as per the Lease Agreement, the 2nd defendant was liable to pay Rs.2,000/- per month as ground rent. However, since the 2nd defendant did not commence construction before 18.12.1987, the 2nd defendant had rendered himself liable to pay rent at the rate of Rs.6,000/- per month from 18.12.1987. The 2nd 6 defendant did not also complete the construction on or before 18.12.1995 and thus, the 2nd defendant also became liable to pay rent at the rate of three times of the rent that was payable as on 11th year. As on 18.12.1995, the rent payable was Rs.4,000/- per month and thus, from 18.12.1995, the 2nd defendant became liable to pay the rent at the rate of Rs.12,000/- per month for the leased premises.
The fact that the construction was not commenced within the period stipulated under the Lease Deed and construction of the building was also completed is proved that no commencement Certificate was issued by the Municipal Authorities and also no Completion Certificate and occupancy Certificate has been issued to the 2nd defendant.
The stipulation to pay 3 times the rent as penalty was not complied with by the 2nd defendant and thus, the plaintiffs were constrained to issue of notice and in response to this notice, the 2nd defendant contended that O.S.3467/2007 he was not liable to pay rent as penalty as he had started construction and he however, conceded that if the construction was not completed within 10 years, the plaintiffs may have a right to sue. The 2nd defendant has not complied with his obligation under the Lease Deed even after the issuance of notice. Since the demand of the plaintiffs was not complied with eviction proceedings were initiated against the 2nd defendant in HRC No.793/1991, under the then existing provision of S.21(1)(a) of the Karnataka Rent Control Act, 1961. The Eviction Petition was dismissed and the plaintiff preferred a Revision in HRRP No.825/2001 before the Hon'ble High Court of Karnataka. During the pendency of the said proceedings, the Karnataka Rent Control Act, 1961 was repealed and the Karnataka Rent Act 1999 came into force under which all proceedings in respect of premises to which the new Act did not apply stood abated and thus, the above said proceedings also stood abated. Since the new Act did not apply to the suit property, the Hon'ble High Court, by its order dated 5th December 2003 held that Revision petition stood abated and 8 however, clearly observed that the abatement of the proceedings would not come in the way of the plaintiffs to initiate a fresh action against the 2nd defendant.
The plaintiffs thereafter, caused the issuance of statutory quit notice to the 2nd defendant, which was served to the 2nd defendant on 8th June 2004. A demand to pay a sum of Rs.17,88,000/- was also made in the quit notice. Despite service of quit notice, the 2nd defendant neither replied nor complied with the demand made therein nor delivered possession of the suit property. The plaintiffs recently noticed a public notice published in the newspapers, which stated that the 1st defendant was offering for sale the 'Leasehold rights' of the schedule property for recovery of dues from the 2nd defendant. The 1st defendant is deemed to have taken over possession of the schedule property in exercise of its powers conferred under S.29 of the State Financial Corporation Act. It appears that the 1st defendant has taken over possession of the building constructed on the suit property as the 2nd defendant had defaulted in O.S.3467/2007 repayment of the outstanding loans. The 1st defendant even under the Lease Deed cannot exercise any right beyond 18.12.2012. By virtue of the fact that the 1st defendant has taken over the complex constructed by the 2nd defendant, i.e., the tenant, the 1st defendant has stepped into the shoes of the tenant i.e., the 2nd defendant and has become the tenant of the schedule property. As a necessary consequences, the 1st defendant by virtue of succeeding to the interests of the tenant, it has also succeeded to all the liabilities of the tenant i.e., the 2nd defendant. Therefore, the 1st defendant has committed the breach of terms of lease. A quit notice was also issued to the 1st defendant calling upon to hand over possession of the schedule property and to pay the amount demanded in the notice. In the quit notice, the plaintiffs also stated that they no longer wished to continue the tenancy created in favour of 2nd defendant, which presently had been taken over by the 1st defendant, because of the several breaches of the express stipulation of the Lease Deed. The 2nd defendant deliberately refused to receive the notice, which returned 10 with a Shara of 'refusal'. The 1st defendant received the quit notice and proceeded to issue a reply. In the said reply, it had lent a loan to the 2nd defendant for the construction of the hotel in 1993. The 2nd defendant had defaulted in repayment of the loan and it had initiated the recovery proceedings and had brought the assets of the 2nd defendant for sale, but, it had not received any offers from any purchasers. However, their paper Notification clearly stated that it had not taken over the suit property under S.29 of the SFC Act and stated that it had not taken over the possession of the suit property. It was clear that in order to avoid its liability, whose liabilities they had succeeded to by virtue of the fact that they had taken over lease hold rights along with the building, the defendant was trying to put forth a plea that it was not the tenant and they were not liable to hand over possession to answer to the claim of the plaintiffs.
The defendants have no right to remain in possession especially after the lease has been determined and for having committed the breach of O.S.3467/2007 contract. The defendants are also liable to pay the amounts claimed. Since, the 1st defendant has taken over the schedule property and is the successor in interest of the 2nd defendant, the 1st defendant has become liable to honour all the liabilities created by the 2nd defendant in respect of the suit property. As on April 2007, the defendants are due a sum of Rs.5,70,000/- for the period of 18.12.1987 to 17.12.1995, i.e, for 8 years at Rs.6,000/- per month and Rs.17,64,000/- for the period from 18.12.1995 to 31.03.2007 i.e., for 12 years 3 months @ Rs.12,000/- per month. In total Rs.23,40,000/-. Both the defendants jointly and severally apart from being liable to hand over possession, is liable to pay a sum of Rs.23,40,000/-.
As per the stipulation in the lease, the 2nd defendant was obliged to give to the plaintiffs a constructed area of 200 square feet in the 2nd and 3rd floor facing the road. The said accommodation was to be made available to the plaintiffs after the completion of the construction and issuance of the Occupancy 12 Certificate by the Corporation. Since the 2nd defendant did not complete the construction of the building, the Corporation did not issue the Occupancy Certificate and consequently, the constructed area of 200 square feet was not handed over to the plaintiffs. The plaintiffs, for this breach of lease condition, became entitled to claim and receive from the defendant, the value of the rental that the said 200 feet of constructed area would have fetched to them. Since the 1st defendant has taken over all the liabilities of the 2nd defendant by virtue of succeeding to the interest of the 2nd defendant, the 1st defendant would become liable for compensating the loss suffered by the plaintiffs. Even by a conservative estimate, in the year 1995-1996 the Rentals in Gandhinagar was more than 10/- per square feet and as on today, 200 square feet would easily fetch Rs.25/- per square feet. Thus, for non-compliance of the lease conditions, the 1st defendant would become liable to reimburse the loss caused to the plaintiffs at the rate of Rs.3,500/- per month from 18.12.1995. The plaintiffs quantify the total loss that they have incurred due to the O.S.3467/2007 fact that they were not provided with 200 feet of constructed area at Rs.3500 X 147 months (12 years 3 months) = Rs.5,14,500/= even after deducting the amount payable to the plaintiffs. That apart from being liable to hand over possession of the said property, the 1st defendant as on 2007, liable to pay the plaintiffs a sum of Rs.23,40,000/- on account of rent and further sum of Rs.5,14,500/- on account of loss suffered due to the none handing over the possession of 200 square feet constructed area. The 1st defendant is liable to pay in all a sum of Rs.28,54,500/-. However, in view of the law of limitation, the plaintiffs are restricting the right to claim the arrears of rent for the past 3 years only from January 2004. The defendants are thus, liable to pay a sum of Rs.12,000/- X 36 months i.e., Rs.4,32,000/- towards arrears of rent and a sum of Rs.3,000 X 36 = 1,26,000/- towards loss in a total sum of Rs.5,58,000/-. The 1st defendant has not whispered anything about its liability to pay the rentals from the date of its taking over the lease hold rights and the building, which amounts to a breach of the condition of the Lease Deed. The conduct 14 of the 1st defendant being a statutory body is both arbitrary and illegal. Hence, the plaintiffs have filed the present suit.
.3. In pursuance of summons, defendants No.1 and 2 appeared through their respective counsels and filed their written statements.
The 1st defendant in the written statement denied the material averments / allegations of the plaint regarding stepping into the shoes of the 2nd defendant and become a tenant of the suit schedule property, succeeding all liabilities of the 2nd defendant, the alleged physical possession, calculations given at Paragraph 27 of the plaint, liability of compensating the loss, the loss quantified by the plaintiffs etc. Further this defendant contended that the plaintiffs have no cause of action and suit is bad for mis-joinder of parties and cause of action. The reliefs claimed are unsustainable and this defendant is not liable to pay claim amount and prayer for possession is unsustainable. The suit schedule property has not been leased to this defendant and not lessee.
O.S.3467/2007 There is no privity of contract between the plaintiffs and this defendant. This defendant is not a party to Lease Deed dated 18.12.1985. it is only between the plaintiff and the 2nd defendant and this defendant has nothing to do with the same. The proceedings before the Court narrated at Paragraph 13, this defendant is not a party. The 2nd defendant had borrowed a sum of Rs.79.37 lakhs from this defendant and as a security for the payment, the 2nd defendant has executed Loan Agreements, hypothecation deeds and mortgaged leasehold rights of the suit schedule property. In view of the default in repayment of the loan, after issuing a notice to the 2nd defendant, this defendant initiated recovery action under Sec.29 of the State Financial Corporation Act and the Managing Director has also passed an order to that effect. Thereafter, this defendant took symbolic possession of the mortgaged property and at no point of time, took physical possession of the same. After taking over the mortgaged assets, the same brought for sale 7 times, ever since, the year 2000 by way of Paper Publication. The plaintiffs are not entitled to question the 16 action of this defendant, which is wholly legal and in accordance with law. This defendant is not liable to hand over possession of the suit schedule property and to pay any amount claimed by the plaintiffs. The question of breach of the conditions does not arise. The 2nd defendant has closed the account on one time settlement on 01.03.2007 and this defendant has no charge or interest in the schedule property and prays to dismiss the suit with exemplary costs.
.4. The 2nd defendant in his written statement denied the material averments / allegations of the plaint regarding liable to pay penal rent, refusing to receive the notice, etc. Further, this defendant contended that the agreed terms and conditions of the lease are incorporated in the Lease Deed dated 18.12.1985. This defendant was required to put up construction in accordance with terms and conditions of the said Lease Deed. This defendant has complied with the terms and conditions of the said Lease Deed. The proceedings initiated in HRC No.793/1991 claiming rents at penal rates, alleging the O.S.3467/2007 delay in construction of the building, has been dismissed and the order has become final and conclusive between the parties. The Lease Deed contains the time for commencement and completion of the construction of the building. The averments in Para-7 are not correct and this defendant has not violated any terms and conditions of the Lease Deed. The Court has negatived the claim at penal rates and the plaintiffs cannot agitate the same once again in the suit. This defendant is liable to pay rent at Rs.2,000/- per month and paying the rent as stipulated in the Lease Deed.
This defendant has commenced the construction in time and completed the construction in stages. As and when the construction was completed, the property is assessed to tax periodically by the Bangalore Mahanagara Palike. The plaintiffs were unsuccessful in proving or establishing the alleged violation of terms and conditions of the Lease Deed by the defendant in earlier proceedings. This defendant has not conceded the alleged violation. The averments relating to HRC 18 No.793/1991 and HRRP No.825/2001, orders passed by the Courts in the cases are matters of Court records. This defendant is not served with notice dated 08.06.2004. Subsequent to publication of the notice, this defendant has settled the debt with 1st defendant, the averments in Paras-16 to 21 become redundant.
The lease in force till 18.12.2015. This defendant has right to enjoy the property. The plaintiffs have not determined the lease. The plaintiffs have no right to determine the lease unilaterally during subsistence of the lease. This defendant is paying rents and the plaintiffs are accepting the same. This defendant is not liable to pay amount claimed by the plaintiffs. The 1st defendant has not taken over the suit property and not a successor in interest of this defendant. At no point, the plaintiffs accepted the room in 2nd and 3rd floor deliberately to avoid payment, of rents, provided in the Lease Deed, since there was no necessity for them. The plaintiffs were / are only interested in creating problems for causing harassment. The plaintiffs are not entitled to the O.S.3467/2007 rent claimed in the plaint. The averments in Paras-29 to 31 of the plaint are denied. This defendant is not liable to pay the claim amount. The plaintiffs have not suffered loss and not entitled for the alleged loss. This defendant is not liable to surrender possession of the suit property. The suit is barred by time. The plaintiffs are not entitled for the reliefs sought for and this defendant prays to dismiss the suit with costs.
.5. On the basis of pleadings, the following Issues framed:
1. Whether the plaintiffs prove that 2nd defendant has breached the terms of Agreement dated 18.12.1985 in not completing the construction of structure in the suit schedule property as alleged?
2. Whether the plaintiffs further prove that 2nd defendant being the lessee of the plaintiffs property under the Lease Agreement had raised loan from the 1st defendant and became defaulter in repayment and as such the property was attached by 2nd defendant as alleged?
3. Whether the plaintiffs further prove that the 1st defendant has taken over complex constructed by 2nd defendant and has stepped into the shoes of the tenant 2nd defendant and liable to pay the suit claim as alleged? 20
4. Whether the 1st defendant proves that 2nd defendant had raised loan by mortgaging the leasehold rights of the plaintiffs property and thereafter on 01.03.2007, 2nd defendant has repaid the entire dues on one time settlement and there is no charge or interest in the schedule property as alleged?
5. Whether the 2nd defendant proves that after taking the plaintiffs property on lease under the Agreement he has completed the construction within the stipulated period and offered the property in the second and third floor to the plaintiffs but they have deliberately avoided payment of rents as alleged in Para- 10 of the written statement?
6. Whether the suit is time barred as alleged by the 1st defendant
7. Whether the plaintiffs are entitled to recover possession of the suit schedule property with the suit claim and interest as prayed ? If so, from whom?
8. To what reliefs if any the parties are entitled .6. In support of the case, the 1st plaintiff examined as PW.1, got marked documents at Ex.P.1 to Ex.P.16 and closed the side. The Managing Director of the 2nd defendant examined as DW.1, got marked documents Ex.D.1 to Ex.D.27 and closed the side. The defendant O.S.3467/2007 No.1 got examined its Manager as Dw.2 and closed the side.
.7. Heard arguments on both side.
.8. My answers to the above Issues are:
Issue No.1 - in the affirmative. Issue No.2 to 4 - do not survive for consideration. Issue No.5 - in the negative.
Issue No.6 - in the negative.
Issue No.7 - partly in the affirmative. Issue No.8 - As per final order for the following:
REASONS .9. ISSUE Nos.1 & 5: As these Issues are connected to each other, I have taken both together for discussion for the sake of convenience and to avoid repetition. .10. The plaintiffs contended that the 2nd defendant has violated express stipulation of the lease and breach of terms and conditions of the Lease Deed dated 18.12.1985 in not commencing and completing the 22 construction of the building on the suit schedule property within the stipulated period, etc. Per contra, the 2nd defendant has denied the said contention of the plaintiffs and interalia contended that he has completed the construction within the stipulated period, at no point of time, the plaintiffs accepted the room in 2nd and 3rd floor deliberately to avoid payments of rents, since there was no necessary for them and are only interested in creating problems to cause harassment, etc. To substantiate the respective contentions of the parties, the 1st plaintiff examined as PW.1 who in his affidavit evidence stated regarding registered Lease Deed dated 18.12.1985; essential conditions of contract regarding commencement and completion of construction of building within a stipulated period, penal clause, non-
completion of construction within the stipulated period, committing breach of terms of the lease, etc., by reiterating the averments of the plaint, got marked documents at Ex.P.1 to Ex.P.16.
O.S.3467/2007 .11. Per contra, Managing Director of 2nd defendant examined as DW.1 who in his affidavit evidence also stated regarding agreed terms and conditions incorporated in Lease Deed dated 18.12.1985, require to put up construction in accordance with said terms and conditions; complying with the same; not violating the terms and conditions of the Lease Deed; commencing the construction within two years from the date of Lease Deed and completion of the construction in stages within 10 years; offering 200 square feet of super built up area in 2nd or 3rd floor as provided in the Lease Deed; non- acceptance of the same by the plaintiffs deliberately to avoid payment of rent, since there was no necessity for them, etc., by reiterating the averments of the written statement and got marked documents at Ex.D.1 to Ex.D.27.
It is not in dispute that the registered Lease Deed dated 18.12.1985 entered into between the plaintiffs and the 2nd defendant, in terms and conditions of the said Lease Deed the 2nd defendant should begin construction within two years from the date of Registration of the 24 Lease Deed and should complete the entire construction within 10 years from the date of Registration of Lease Deed. The plaintiffs alleges that the 2nd defendant has committed breach of terms and conditions of the Lease Deed and not commenced and completed the construction of the building over the schedule property as per the said terms and conditions. Per contra, the 2nd defendant has denied the said contention of the plaintiffs and interalia contended that he has complied with the terms and conditions of the Lease Deed and not violated any such terms and conditions, at no point of time, the plaintiffs accepted the room in 2nd and 3rd floor deliberately to avoid the payment of rent since there was no necessity for them and were only interested in creating problems to cause harassment, etc. .12. The Plaintiffs have produced certified copy of the reply notice dated: 13.12.1990 issued by the proprietor of defendant No.2 at Ex.P.1 wherein it is stated that defendant No.2 has already commenced construction and in fact two RCC columns are put up and further stated that plaintiffs have written a letter dated: 22.12.1987 O.S.3467/2007 requesting to produce commencement certificate. The Plaintiffs have produced Certified Copy of the endorsement dated 15.12.1988 issued by the Corporation at Ex.P7 wherein it is stated that no application was filed seeking for commencement certificate and the same not issued, party applied for occupation certificate, on 11.8.1985, on inspection it was found that he had not completed the construction and advised to apply after completion of the construction. Further, plaintiffs have got marked Xerox copy of endorsements issued by the BBMP dated 19.5.1995 and 2.12.1995 at Ex.P13 and 14 respectively stating that on spot inspection it is found that construction work is not completed as such request to issue occupation certificate is rejected. From the above referred documentary evidence go to show that the 2nd defendant has not completed the construction of the building as per terms and conditions of the lease deed Ex.P12. Further, DW1 in his cross examination also admitted that BBMP had inspected the spot on 6.12.1990 and at that time only two columns were erected, which 26 impliedly also shows that the building was not commenced within two years as per the terms and conditions of the lease deed Ex.P12. The 2nd defendant who has contended regarding completion of the building within stipulated period though produced certified copy of the licence dated: 3.8.1979 at Ex.D11, true copy of the sanctioned plan at Ex.D12, certified copy of the notes and orders maintained by the Bangalore City Corporation at Ex.D13, Certificate dated 10.8.1985 issued by the Architect at Ex.D15, certified copy of the letter dated:
11.8.1995 written to the Engineer, Corporation of City of Bangalore Ex.D16, Certified copy of the letter dated:
5.9.1995 written to the Deputy Director, Town Planning, Bangalore at Ex.D17, Certified copy of the letter dated:3.11.1995 written to the Deputy Director of Town Planning, Bangalore, at Ex.D18, letter dated; 21.9.1995 written by the Buildwell Engineers at Ex.D23, Certificate dated: 20.9.2012 issued by the BBMP at Ex.D26, letter dated: 22.11.1995 at Ex.D27 are not sufficient to prove that the 2nd defendant has commenced and completed the building as per the terms and conditions of the lease O.S.3467/2007 agreement since the 2nd defendant has not produced commencement certificate or completion certificate issued by the competent authority. The documents produced by the plaintiffs are more reliable than the documents produced by the 2nd defendant in respect of commencement and completion of the building in question. The 2nd defendant also contended regarding offering the property in the 2nd and 3rd floor, plaintiffs non acceptance of the rooms deliberately to avoid the payment of rent since there was no necessity for them, etc. As per the terms of the lease, the rooms will be made available by the 2nd defendant on getting the occupancy certificate as soon as the 2nd and 3rd floors in which the building room is to be completed. But the 2nd defendant has not produced any reliable documentary evidence to show offering of the rooms and the plaintiffs non acceptance to avoid payment of rent etc. Hence, the said contention of the 2nd defendant is not acceptable.
From the evidence of PW1 coupled with the documents produced by the plaintiffs go to show that the 2nd defendant has breached the terms and conditions of the 28 lease agreement dated 18.12.1985 in not completing the construction of structure over the suit schedule property and the 2nd defendant has failed to prove that he has completed the construction within a stipulated period and offered the property in the 2nd and 3rd floor to the plaintiff and they have deliberately not accepted to avoid payment of rents, accordingly, I answer issue No.1 in the affirmative and issue No.5 in the negative. .13. Issue No. 2, 3 and 4:- These issues do not survive for consideration since the plaintiffs have filed a memo on 21.10.2013 to dismiss the suit as against the 1st defendant as not pressed stating that after filing the suit the 1st defendant has stated that it has given back possession of the suit premises to the 2nd defendant as the 2nd defendant has repaid the due outstanding etc., and prays to dismiss the suit as against the 1st defendant and permit to prosecute the suit only against the 2nd defendant. In view of the said memo for dismissal of the suit as against the 1st defendant, these issues do not survive for consideration and I answer these issues accordingly.
O.S.3467/2007 .14. However, PW1 in his cross examination admitted that defendant No.2 has repaid entire dues of the loan to KSFC under one time settlement scheme, the defendant No.1 KSFC has issued loan clearance certificate to defendant No.2 and defendant No.2 has cleared the loan on 1.3.2007 and got the property free from the charges and thereafter they have filed this suit against the 1st defendant to harass them. The plaintiffs having knowledge of clearance of due amount by the 2nd defendant payable to the 1st defendant under one time settlement scheme having cleared the loan, on 1.3.2007 have filed the suit against the 1st defendant on 3.5.2007, who is nothing to do with the lease agreement between the plaintiffs and the 2nd defendant. Considering these aspects and memo filed by the plaintiffs, the suit as against the 1st defendant is liable to be dismissed with costs of Rs.10,000/-.
.15. Issue No.6:- The defendant no.2 contended that the suit is barred by time, but has not adduced satisfactory evidence in support of the said contention. On the other hand plaintiffs have produced certified copy of the order 30 in HRRP No.825/2001 at Ex.P.2, wherein their Lordships observed that however, the abatement of the proceedings would not come in the way of the petitioners/ landlords to initiate any fresh action or proceedings against respondents / tenants in accordance with law in an appropriate forum. The plaintiffs having filed this suit after disposal of the said HRRP, the suit cannot be termed as barred by time as alleged, accordingly, I answer issue No.6 in the negative. .16. Issue No.7:- Plaintiffs have filed this suit against defendants for possession of the suit schedule property and to direct the defendants to pay a sum of Rs.5,58,000/- as claimed in Para-33 of the plaint with interest at the rate of 12% p.a., from the date of suit till the date of actual realization of the due amounts and also to direct the defendants to pay a sum of Rs.1,00,000/- from the date of suit as damages for unauthorized occupation of the suit schedule property and costs, etc. O.S.3467/2007 .17. The learned counsel for the 2nd defendant during the course of arguments submitted that lease period is not expired and still in force, there is no forfeiture clause as such the plaintiffs are not entitled for possession of the schedule property and the plaintiffs unilaterally cannot determine the lease and not entitled for recovery of possession etc., and also relied upon the following decisions:-
AIR 1989 SC 1510 in the case between Modern Hotel, Gudur, V/s. K. Radhakrishnaiah and others, wherein their Lordships held that :-
"Houses and Rents - Lease for 30 years - No forfeiture clause - Eviction during its subsistence - Not permissible"
ILR 1992 Kar 1296 in the case between Sri Ramakrishna Theaters Ltd. V/s. General Investments & Commercial Corporation Ltd., wherein their Lordships held that:-
"No right to evict tenant even before expiry of lease period by resort to provisions of Act, resultant mischief being irreparable - Even where lease deed provides determination of lease, recovery of possession only by recourse to section 21(1). 32 In the instant case there is no dispute regarding the execution of the registered lease deed dated:
18.12.1985. As per the said lease deed, the lease is for 30 years from the date of registration as such the lease is in force.
PW1 in his cross examination also admitted that the lease is in existence till 18.12.2015. Further, as per Ex.P12 certified copy of the lease deed period of lease is for 30 years commencing from the date of registration of the lease deed. The lease deed is registered on 18.12.1985 and the lease period is till 18.12.2015. Since the lease period is not expired, the plaintiffs are not entitled for possession of the schedule property. However, the 2nd defendant having breached terms of the lease deed in respect of commencement and completing the building is liable to pay penal rent as claimed by the plaintiffs for the last three years of Rs.4,32,000/- towards arrears of rent and Rs.1,26,000/- towards loss for non handing over possession of 200 Sq. Ft. built up area in all Rs.5,58,000/- with interest at the rate of 6% p.a. from the date of suit till realization. However, PW.1 O.S.3467/2007 in his cross examination admitted that they are receiving rent from defendant no.2 and defendant no.2 is paying rent according to periodically increase of rent as mentioned in agreement Ex.P.12. Thus, the plaintiffs are entitled for Rs.5,58,000/- with interest at the rate of 6% p.a. from the 2nd defendant subject to deduction of admitted rent paid by the 2nd defendant from the date of suit till realization, accordingly I answer issue No.7 partly in the affirmative.
.18. Issue No.8:- In view of my finding on the above issues 1 to 7, I proceed to pass the following:-
ORDER Suit of the plaintiffs is hereby partly decreed with cost as against defendant no.2 as under:-
The plaintiffs are entitled for a sum of Rs.5,58,000/- with future interest at the rate of 6% p.a. from the 2nd defendant subject to deduction of admitted rent paid by the 2nd defendant from the date of suit till realization.34
The 2nd defendant is directed to pay the decretal amount to the plaintiffs within three months from today, failing which plaintiffs are at liberty to recover the said amount from the 2nd defendant in accordance with law.
The suit as against the 1st defendant is dismissed with cost of Rs.10,000/-.
Draw decree accordingly.
(Dictated to the Judgment Writers, transcript computerized by her/him print out taken by him/her and after correction, pronounced by me in the open court on this the 24th day of August, 2015) (JINARALAKAR B.L.) XL. Addl.City Civil Judge, Bengaluru.
O.S.3467/2007 ANNEXURE List of witnesses examined for plaintiffs:-
PW1 : Sri B.N. Suresh S/o. Late B.P. Narasimha Murthy List of exhibits marked in the evidence of plaintiffs:- Ex.P1 : Certified copy of reply notice dated:
13.12.1990 issued by U.R. Bhimsena as proprietor of defendant No.2 Ex.P2 : Certified copy of orders dated:
5.12.2003 in HRRP No.825/2001 Ex.P3&4 : Copy of legal notice dated: 6.6.2004 issued to defendant No.2 with postal acknowledgement.
Ex.P5 : Public Notice issued by defendant No.1 in the daily newspaper Ex.P5(a) : Relevant portion in Ex.P5 Ex.P6 : Copy of legal notice dated: 5.9.2006 issued to defendants.
Ex.P7 : Certified copy of endorsement dated:
15.12.1998 issued by corporation Ex.P8 : General Power of attorney executed by B. Sujay Kumar.
Ex.P9 : GPA executed by Vijayanarasimha B.N. plaintiff No.2.
Ex.P10 : Unserved postal cover sent to defendant No.2 36 Ex.P11 : Reply notice dated:27.11.2006 from defendant No.2 Ex.P12 : Certified copy of registered lease deed dated: 18.12.1985 Ex.P13 : Xerox copy of endorsement issued by BBMP to DW1 Ex.P14 : Xerox copy of endorsement dated:2.12.1995 issued by BBMP to DW1 Ex.P15 : Service certificate issued by concerned electricity company Ex.P16 : Assessment of tax issued by BBMP for the year 1997 List of witnesses examined for defendants:-
DW1 : U.R. Bheemasena
S/o. Sri U.R. Ramachar
List of exhibits marked in the evidence of defendants:-
Ex.D1 : Registration Certificate issued by Commercial Tax Officer Ex.D2 : Certificate issued by Commercial Tax Department Ex.D3 : Registration certificate issued by commercial tax department to run hotel in the premises Ex.D4 : Loan clearance letter issued by KSFC Ex.D5to8 : Copies of letters sent to plaintiffs demanding rent O.S.3467/2007 Ex.D9 : Power Licence Issued By City Corporation, Bangalore Ex.D10 : Certified copy of final order passed on 8.7.1993 in HRC 793/91 Ex.D11 : Certified copy of licence dated:
13.8.1979 issued by Deputy Director, Bangalore City Corporation.
Ex.D12 : True copy of sanctioned plan Ex.D13 : Certified copy of notes and orders maintained by Bangalore City Corporation Ex.D14 : Certified copy of circular dated:
11.10.1982 issued by the commissioner, Bangalore City Corporation Ex.D15 : CC of completion certificate dated:
10.08.1995 Ex.D16 : Cc of letter dated:11.8.1995 to Chief Engineer, Corporation of City of Bangalore Ex.D17 : Cc of letter dated 5.9.1995 written to Dy. Director, Town Planning, Bangalore.
Ex.D18 : Cc of letter dated: 3.11.1995 written to Dy Director, Town Planning, Bangalore.
Ex.D19 : Copy of Application dated: 27.9.2012 given to BBMP 38 Ex.D20 : Letter dated: 19.10.2012 written by BBMP to Bhimasen Ex.D21 : Letter dated: 2.2.1994 Ex.D22 : Letter dated:7.7.94 Ex.D23 : Letter dated:21.9.95 written by Buildwell Engineers and Builders to Bhimsen Ex.D24 : Registration certificate of establishment Ex.D25 : Pramana Pathra dated:30.4.1996 Ex.D26 : Certificate dated: 20.09.2012 issued by BBMP Ex.D27 : Letter dated: 22.11.1995.
(JINARALAKAR B.L.) XL. Addl.City Civil Judge, Bengaluru.
O.S.3467/2007 40 24.08.2015 Plaintiff by Sri NSSR Defendant No.1 by Sri BH Defendant No.2 by Sri AYNG Judgment pronounced in he open court (Vide separate detailed judgment) Suit of the plaintiffs is hereby partly decreed with cost as against defendant no.2 as under:-
The plaintiffs are entitled for a sum of Rs.5,58,000/- with future interest at the rate of 6% p.a. from the 2nd defendant subject to deduction of admitted rent paid by O.S.3467/2007 the 2nd defendant from the date of suit till realization.
The 2nd defendant is directed to pay the decretal amount to the plaintiffs within three months from today, failing which plaintiffs are at liberty to recover the said amount from the 2nd defendant in accordance with law.
The suit as against the 1st defendant is dismissed with cost of Rs.10,000/-.
Draw decree accordingly.
(SRI.JINARALAKAR B.L.) XL Addl.City Civil & Sessions judge, Bengaluru.
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