Bangalore District Court
Smt. Chandralekha vs ) Sri Manas Ranjan Satapathy on 16 December, 2015
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 16th day of December, 2015.
Present
Sri G.K. GOKHALE, M.A., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.4510/2010
Plaintiff: Smt. Chandralekha
w/o Late D.V. Jagadish, 65 years
r/at No.2(19), Mahanta Mutt
Building, P.S. Char Lane, A.S. Char
Street Cross, Chickpet
Bangalore-560 053.
(By Sri V.B. Shivakumar, Adv.)
Vs.
Defendants: 1) Sri Manas Ranjan Satapathy
s/o Late Arjun Satapathy
59 years, r/at No.127
3rd Main, 3rd Stage, 3rd Block
West of Chord Road
Basaveswaranagar
Bangalore-560 079.
2) M/s Manas Hosting,
A Proprietary Concern, having
Its Office at No.28, 'Lalitkunj'
1st Main, 3rd Stage, 3rd Block
West of Chord Road
Bangalore-560 079
Also at
Sri Manas Ranjan Satapathy
s/o Late Arjun Satapathy
59 years, No.28, 'Lalitkunj'
1st Main, 3rd Stage, 3rd Block
West of Chord Road
Bangalore-560 079.
(By Sri Udayashankar, Adv.)
2 O.S.No.4510/2011
Date of institution of the suit 25.06.2011
Nature of the suit For ejectment &
mesne profit
Date of the commencement 11.06.2013
of recording of evidence
Date on which the judgment 16.12.2015
Pronounced
Total duration Years Months Days
04 05 21
JUDGMENT
This is a suit filed by plaintiff against the defendants for decree directing the defendants/tenants to quit, vacate and deliver vacant possession of the schedule property by granting a decree of ejectment and for determination of mesne profits under Order XX Rule 12 CPC.
2. The brief facts of the plaint averments are that:-
The plaintiff is the absolute owner of property bearing No.28, West of Chord Road, Basaveswaranagar, Bangalore. The defendants under an unregistered agreement of lease became tenants in respect of non- residential premises in the second floor put to use for non-residential purpose and the shop premises on monthly rent of Rs.11,300/- as on the date of entering 3 O.S.No.4510/2011 into the agreement to lease. The present rate of rent of the premises in the occupation of the defendants is Rs.13,850/-. The rent has been escalated. However, it has not been enhanced. As per the agreement of lease dated 17.03.2008, it is specifically mentioned that the status of the business which the defendants are required to carry on is business of web hosting only and not for any other purpose. That apart the defendants are also directed not to carry on any business prohibited by law and in addition thereto they are also prohibited from causing nuisance to the neighbours. That has been stated in the lease agreement. The defendants are in possession of original agreement to lease. The defendants have caused acts of nuisance to the neighbours as noticed by the complaints of the neighbours to the plaintiff. In that regard, the plaintiff seeks termination of tenancy of the defendants. That apart it creates doubtful occupation of the premises by the first defendant. The plaintiff was informed that the rate of rent paid is insufficient. It is not commensurate with the prevalent market rate and the present market rate in the said area for utilization of the premises is Rs.25,000/- per month. That apart the 4 O.S.No.4510/2011 plaintiff is not interested in continuation of the occupation of the defendants in the premises. In that regard, the plaintiff issued a legal notice dated 06.06.2011 terminating the tenancy of the defendants. The plaintiff has given 15 days time to quit, vacate and hand over the vacant possession of the premises. The tenancy of the defendants has been legally and lawfully terminated. The defendants are required to quit, vacate and hand over vacant possession of the premises to the plaintiff, which the defendants have failed to despite service of notice upon them as contemplated u/s 106 of Transfer of Property Act. Therefore, the plaintiff is seeking ejectment of the defendants from the premises by due process of law. Therefore, the defendants are liable to quit, vacate and hand over vacant possession of the premises to the plaintiff within 15 days from the date of receipt of such notice. The present prevalent market rate of rent for use and occupation of the premises is Rs.25,000/- per month and in the alternative for an adjudication under Order XX Rule 12 of CPC. Hence, the suit is filed.
3. The first defendant appeared and filed written statement stating that suit is not maintainable in law and 5 O.S.No.4510/2011 on facts. The plaintiff had not valued the suit and also not paid the correct court fee for the claim of the mesne profit. In fact for the mesne profits being claimed the plaintiff has not even mentioned the period knowing that he would need to pay court fee as this. The defendant has already vacated the premises by giving a letter dated 15.07.2011 to the plaintiff with a request to take the key of the building and to return the security deposit after deducting any arrears. Hence, the first prayer in the suit is not sustainable and the suit is liable to be dismissed. The lease agreement entered into between the plaintiff and first defendant on 17.03.2008 for a period of 3 years expired on 16.03.2011. Thereafter the first defendant continued the lease by paying rent and the lease property in their possession without any interruption by anyone. On 09.06.2011, the plaintiff had sent the legal notice stating that defendants have to vacate the premises. For that legal notice the defendants replied on 01.07.2011 stating that they are ready to hand over the premises provided that the plaintiff has to return the lease deposits simultaneously. The plaintiff again sent a letter to the defendants stating that they have filed case 6 O.S.No.4510/2011 before the City Civil Court for the vacation of the tenancy. They also state that on or before 17.07.2011 the defendants have to vacate the premises. The defendants replied on 15.07.2011 stating that they are ready to hand over the possession on or before 10.08.2011 provided the plaintiff has to return back the lease deposit simultaneously. The defendant has paid the escalated monthly rent of Rs.13,856/- after the end of lease period for the month of April, May & June 2011. The plaintiff had received the same without any dispute. The defendants had not paid rent for two months i.e., July & August. That rent amounts to Rs.27,712/- is to be deducted from the lease deposit and the remaining amount of Rs.1,32,288/- has to be returned back to the defendants by the plaintiff. On 09.06.2011 a legal notice was sent on behalf of the plaintiff stating that the defendants were not vacating the leased premises. The defendant had sent a reply to the legal notice stating that they are ready to vacate the premises provided that plaintiff must pay the lease deposit. For this request of the defendants the plaintiff never replied nor returned the lease deposit amounting to Rs.1,50,000/-. On 7 O.S.No.4510/2011 15.07.2011 the defendant had issued the letter of termination of the lease and requested to return the security deposit and take the key of the building. The plaintiff kept quiet with respect to the mesne profit. To make unreasonable demand, he is making a claim for mesne profit when the defendant has already agreed to vacate the premises. Instead of returning of security deposit the plaintiff has come with the suit for ejectment of the defendants from the leased premises. But actually the defendant had given notice of vacation and is ready and willing to vacate the premises. The defendants are carrying the business of web hosting and there are no waste materials to be disposed of. The allegations have been made to show the defendants in a bad light. The defendants had vacated the premises. There is no question of any nuisance to the public as alleged in the plaint. The defendants are in possession of the premises and are looking forward for the return of security deposit for handing over the key to the plaintiff. The main intention to take the property is that to carry the business establishments. The first defendant- Manas Ranjan Satapathy is the Proprietor of the second 8 O.S.No.4510/2011 defendant. In the lease agreement it is clearly shows that the property for business purpose as per Clause-1 of the lease agreement dated 17.03.2008. The defendant had sent a letter dated 15.07.2011 stating that they agree to vacate the office and plaintiff has to give the security deposit in return. The defendants also agreed for deductions towards the electricity charges and rent which is due. The defendants agreed to vacate the premises and the same is intimated to the plaintiff. But the plaintiff with wrong intention has gone to the court for seeking ejectment. The plaintiff has a wrong intention to harass the defendants who are having a good name in the society. The defendants had already vacated the premises and ready to hand over the premises to the plaintiff on return of the security deposit. The plaintiff has to return back the lease deposit which is deposited at the time of lease agreement. The defendants also agreed to deduct two months rent from the deposit. The defendants are not liable for the rent thereafter. Letter to this effect to the plaintiff was served on 29.08.2011 to the plaintiff. Hence, they pray for dismissal of the suit. 9 O.S.No.4510/2011
4. In view of averments of plaint and written statement, the following issues and addl. Issue have been framed by my predecessor:-
ISSUES
1) Whether the plaintiff proves that there is valid termination of tenancy?
2) Whether the defendants prove that they have vacated the schedule premises on 10.08.2011?
3) Whether the plaintiff is entitled for mesne profits?
4) What order or decree?
ADDL. ISSUE
1) Whether defendants are entitled for amount claimed in counter claim?
5. During the course of trial, the plaintiff examined P.W.1 and got marked documents Ex.P.1 to Ex.P.14 and closed side. On the other hand, the defendants examined D.W.1 and got marked the documents Ex.D.1 to Ex.D.10 and closed side.
6. Heard arguments.
7. My answer to the above issues are as follows:-
Issue No.1:- Partly in the affirmative, does not arise for consideration;10 O.S.No.4510/2011
Issue No.2:- Partly in the affirmative; Issue No.3:- Partly in the affirmative; Addl. Issue No.1:- In the negative;
Issue No.4:- As per final order, for the following:-
REASONS
8. ISSUES No.1 TO 3 & ADDL. ISSUE No.1:- The plaintiff is the owner of the suit schedule property. He has leased out his property non-residential premises in the second floor to the defendants. In that regard, there is lease agreement dated 17.03.2008 between plaintiff and defendants. The lease agreement is admitted by both parties. The monthly rent is fixed for Rs.11,3000/- on the date of entering into agreement to lease. The plaintiff had issued legal notice dated 06.06.20111 terminating the tenancy of the defendants. The plaintiff has given 15 days time from the date of receipt of notice by the defendants. After receiving the notice, the defendant has to quit, vacate and deliver vacant possession to the plaintiff. The defendants have failed to do so despite of service of notice upon as contemplated u/s 106 of T.P. Act. Then the plaintiff has filed this suit for ejectment. After filing the suit, the defendant 11 O.S.No.4510/2011 appeared and filed written statement. Thereafter he has handed over the key to the plaintiff and vacant possession. As per Ex.P.14, the defendant has filed memo. On that day key was handed over to the plaintiff. On the same day in regarding the mesne profit they have appointed the Court Commissioner. The Court Commissioner has submitted a report. On 04.09.2012 memo filed by the plaintiff reporting deposit of Rs.1,50,000/- in Court through D.D. dated 03.09.2012. The key is handed over the plaintiff. Thereafter Court has framed the issues. The Commissioner has filed report and stated that wiring and electricity damages, electricity switch boards, fans and tube light, glasses, door and wall, toilet damage and painting charges, total Rs.33,325/-.
9. The P.W.1 has filed sworn affidavit in lieu of his examination in chief. In the sworn affidavit they have stated that suit filed by the plaintiff against the defendant. Plaintiff has accepted the key of the premises. There is an interest free deposit of Rs.1,50,000/-. They have appointed the Commissioner. The Commissioner has stated the damages of Rs.33,325/-, which consists of 12 O.S.No.4510/2011 wiring and electricity damages and others. They have stated the rent due in his calculation towards electricity and water charges. They have stated total damage claim is Rs.1,46,251/-. Less advance amount of Rs.1,50,000/-. The amount of Rs.3,749/- is payable by the plaintiff to the defendant.
10. The P.W.1 has produced the documents in respect of his case. The Ex.P.1 is special power of attorney. The Ex.P.2 is copy of legal notice. The Ex.P.3 is three postal acknowledgements. The Ex.P.4 is three postal receipts. The Ex.P.5 is reply notice. The Ex.P.6 to Ex.P.9 are four electricity bills. The Ex.P.10 is electricity receipt. The Ex.P.11 is water bill with receipt. The Ex.P.12 is water bill. The Ex.P.13 is report of Court Commissioner. The Ex.P.14 is memo dated 24.01.2012.
11. In the cross-examination, the P.W.1 has admitted that the lease agreement was entered into between his mother and defendant No.1. He cannot remember the actual rate of rent agreed at the time of lease agreement. The defendants took the premises on lease in or around 2009 or 2010. He has admitted the initial lease period was for three years. The period of lease 13 O.S.No.4510/2011 expired on March/April 2011. There is no any fresh lease agreement for extending the lease period. Witness volunteers that he collected all 36 post dated cheques from defendants with enhanced rent. After expiry of lease period the defendants paid post dated cheques for two or three months. He does not remember whether the defendants have paid rent upto July 2011. He has issued legal notice in the month of June/July, 2011. The defendants assured to vacate the premises but not vacated. He has not produced any documents to show that the defendants thrown the garbage in front of business and caused new sense. Further he has admitted that the defendants sent a letter agreeing to vacate the premises in August 2011. He has admitted that the defendants sent a letter dt.22.8.2011 stating that they have already vacated the premises on 10.8.2011 and demanded to refund the security deposit amount. Further he has admitted that they were regular in payment of rent till March 2011 and he has received the letter dated 1.7.2011 from defendants. The same document is confronted and marked as Ex.D1. The defendants have claimed for refund of security amount of 14 O.S.No.4510/2011 Rs.1,50,000/-. He has admitted the letter dated 15.7.2011, which is received by him on 29.7.2011 and same is marked as Ex.D2. Though it is an admitted fact that prayer of the plaintiff to vacate the schedule premises is fulfilled.
11. The important ingredient in this case is whether the defendant has damaged the property and due of arrears of rent. That can be decided by this Court. The important material witness in this case is Court Commissioner. The Commissioner is important witness and as per consent of the parties, the Court Commissioner has visited the spot and inspected the entire premises and submitted report.
12. The first defendant is examined as D.W.1. The D.W.1 has filed sworn affidavit in lieu of examination-in- chief and reiterated the entire written statement averments. In support of his case, the D.W.1 has produced the documents. The Ex.D.1 to Ex.D.3 are letters sent to the plaintiff by the defendants. The Ex.D.4 is special power of attorney. The Ex.D.5 is copy of letter dated 01.08.2011 addressed to defendant by Ennarveekay Properties Pvt. Ltd. The Ex.D.6 is copy of 15 O.S.No.4510/2011 letter dated 01.09.2011. The Ex.D.7 is copy of letter dated 01.10.2011. The Ex.D.8 is copy of Airtel Invoice dated 11.07.2014. The Ex.D.9 is copy of invoice details dated 11.07.2014. The Ex.D.10 is copy of invoice details dated 11.07.2014.
13. The D.W.1 in the cross-examination has admitted that he was not present at the time of visit of the court commissioner. But their Manager was present. He has admitted that on 24.1.2012, they have deposited the key in Court by filing Ex.P14 memo. The witness volunteers that he was all along ready to handover the key and the plaintiff refused to receive the key every time and therefore the key is deposited in the Court. They have issued letter to the plaintiff several times to receive the key and to take the possession. The key is handed over in the open Court. He has admitted that on 1.7.2011, he wrote a letter to plaintiff for settlement of advance amount. They have not mentioned his changed address in the letter Ex.D2 and Ex.D3. When he has handed over the key he has not paid the arrears of rent. He has denied the suggestion for damaging the wall. 16 O.S.No.4510/2011
14. It is an admitted fact that the defendant has occupied the suit schedule premises as per the lease agreement dated 17.03.2008. The plaintiff is claiming rentals due from 17.06.2011 to 31.01.2012 as Rs.1,03,920/-. It is an admitted fact that after receiving legal notice, the defendants' counsel has replied the legal notice. They have ready to vacate the suit premises after returning the advance amount of Rs.1,50,000/-. They have given contact number of mobile. The plaintiff has not replied. Both the mobile numbers are switched off they have not contacted. The Ex.D.2 is important document. It has been accepted by the plaintiff. They are ready to settlement of the advance amount on 10.08.2011 deduction towards electricity charge. On perusal of the order sheet dated 04.09.2012, D.D. has been deposited. On 21.12.2012, the key was handed over in the open Court. The memo filed by the plaintiff reporting deposit of Rs.1,50,000/- on 04.09.2012. Once the key is handed over, the key is accepted by the plaintiff. He is not entitled to rent from the defendants. After taking key also the defendant has not deposited the amount. The documents electricity bill furnished by the 17 O.S.No.4510/2011 plaintiff as per document the lease period is expired on 16.03.2011. Thereafter the defendant continued the lease by paying rent and the leased property is in the defendant's possession without any interruption by the plaintiff or any person claiming under him after the end of lease period i.e., 16.03.2011. The defendant has requested the plaintiff to extend the lease period and wanted to continue the premises. The plaintiff agreed the same orally. The plaintiff himself has enhanced monthly rent of Rs.13,856/- upto 16.06.2011 and collected 3 post dated cheques. The plaintiff during the course of his cross-examination at page-7 has admitted the fact after expiry of lease period the defendant paid post dated cheques for 2 or 3 months. This itself shows that the plaintiff himself allowed the defendant to continue in the possession for May and June 2011. On 09.06.2011, the plaintiff sent a legal notice stating that the defendant has to vacate the premises. The defendant has replied the legal notice on 01.07.2011 stating that they are ready to hand over the premises provided that simultaneously plaintiff has to return lease deposit. The defendant also issued legal notice to the plaintiff. The defendant handed 18 O.S.No.4510/2011 over the key but the plaintiff never returned back to refund the lease deposit and collected the key. The defendant vacated the premises in the month of August 2011 and were ready to return the keys to the plaintiff on the first appearance before the Court. But the plaintiff himself has failed to appear before the Court on continuous three hearings held on 05.08.2011, 20.08.2011 & 29.08.2011. The defendant issued another notice on 22.08.2011 stating that they had already vacated the premises and they are not responsible for the rent from August 2011. Though the defendant has filed I.A. on 15.09.2011 seeking direction from the Court that defendant would not be liable for payment of rent after 17.08.2011 onwards. The letter dated 22.08.2011 is marked as Ex.D.3. Though the defendant has filed written statement counter claim in the above suit directing the plaintiff to return back the lease deposits of Rs.1,32,288/- with 12% interest till the date of suit and take back the keys of the premises, the defendant has not paid the Court fee for the counter claim. It is submitted by the plaintiff in the Court. The plaintiff has cited the decisions reported in AIR 2013 ANDHRA 19 O.S.No.4510/2011 PRADESH 7 (Alok Kumar Sharma v/s Smt.T. Hemalatha), AIR 1996 DELHI 32 (Vinod Khanna & others v/s Bakshi Sachdev (Deceased) Through LRs & others, 2006(2) AIR KARN.R.45 (B. Savithramma v/s B. Rajagopala Naidu) and AIR 2007 KAR.46 (M.C. Mohammed v/s Smt.Gowramma & others). These citations are not applicable to the case on hand. When the defendants are trying to hand over the key, the plaintiff has avoided to take back the key. In that regard the plaintiff is not entitled to future rent from the defendants. With the consent of both counsels, the Commissioner has been appointed. The Commissioner has submitted report in regarding of damage of the property. That amount of Rs.33,3225/- is entitled by the plaintiff with due of 2 months Rs.27,712/- as admitted by the defendants. That amount has been given deducted in the advance amount and remaining amount has to be returned to the defendant. Though the defendant is claiming interest he is not entitled for interest. The amount has already deposited by the plaintiff in the Court. Hence, the plaintiff is entitled for damages including two months rent, in all total of Rs.61,037/-. These are the above grounds I 20 O.S.No.4510/2011 come to the conclusion that the plaintiff has proved the termination of tenancy and defendant has proved that they have vacated the schedule premises and the plaintiff is entitled for damages. Accordingly I answer issue No.1 in affirmative, issue No.2 & 3 partly in affirmative.
15. The defendant has claimed counter claim without paying Court fee. It is a suit for ejectment. There is dispute arises between the plaintiff and defendant regarding non-returning of deposit amount. If really the defendant has vacated the schedule premises immediately though he has tried to hand over the key the plaintiff has avoided to take the key the counter claim made by the defendant is for interest on deposited amount it is not in the agreement. These are the above reasons I come to the conclusion that the defendant has not made out ground for counter claim. Hence, I answer addl. Issue No.1 in negative.
16. ISSUE No.8:- For the reasons stated above, I proceed to pass the following:-
ORDER The suit of the plaintiff is partly decreed with cost.21 O.S.No.4510/2011
The plaintiff is entitled for damages with two months arrears of rent, in all total of Rs.61,963/-. This amount is deducted from the interest free advance deposit amount of Rs.1,50,000/- payable to the defendants. The plaintiff is hereby directed to pay remaining amount of Rs.88,963/- to the defendants without interest, after the appeal period is over.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on computer, printout taken, corrected and then pronounced in the Open Court on this the 16th day of December, 2015).
(G.K. GOKHALE) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : BA.J. Vedamurthy List of documents exhibited for plaintiff:
Ex.P1 : Special power of attorney
Ex.P2 : Copy of legal notice
Ex.P3 : Three postal Acknowledgements
Ex.P4 : Three postal receipts
Ex.P5 : Reply notice
Ex.P6 to 9: Electricity bills
Ex.P10 : Electricity receipt
22 O.S.No.4510/2011
Ex.P11 : Water bill with receipt
Ex.P12 : Water bill
Ex.P13 : Commissioner report
Ex.P14 : Memo dated 24.01.2012
List of witnesses examined for the defendants:
DW.1 : Janagya Dutta Satapathy List of documents exhibited for defendants:
Ex.D1 to 3: Letters issued by the defendants Ex.D4 : Special power of attorney Ex.D5 : Copy of letter dt.1.8.2011 addressed to defendant by Ennarveekay Properties Pvt.Ltd., (subject to proof).
Ex.D6 : -do- dt.1.9.2011 (sub.to proof)
Ex.D7 : -do- dt.1.10.2011 (sub.to proof)
Ex.D8 : Copy of Airtel Invoice dt.11.7.2014
sub.to proof
Ex.D9 : -do- dt.11.7.2014 sub.to proof
(Invoice details)
Ex.D10 : -do- dt.11.7.2014 sub.to proof
(Invoice details)
(G.K. GOKHALE)
X Addl. City Civil & Sessions Judge,
Bangalore.