Karnataka High Court
M/S. Umiya Holding Private Limited vs M/S. Sarga India Company on 28 July, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.1033 OF 2020 (GM CPC)
C/W
WRIT PETITION NO.6050 OF 2020 (GM CPC)
IN W.P.NO.1033 OF 2020
BETWEEN:
M/S. UMIYA HOLDING PRIVATE LIMITED,
COMPANY INCORPORATED UNDER THE
PROVISIONS OF COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT #29/3,
H.M. STRAFFORD, 2ND FLOOR, 7TH CROSS,
VASANTH NAGAR, BENGALURU - 560 052,
REPRESENTED BY ITS AUTHORIZED SIGNATORY,
SRI. G. SRIKANTH REDDY,
AGED ABOUT 50 YEARS.
... PETITIONER
(BY SRI. KEMPE GOWDA, ADVOCATE FOR
SRI. SANJAY NAIR, ADVOCTE FOR
SRI. ANUP S SHAH LAW FIRM)
AND:
M/S. SARGA INDIA COMPANY
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
REGISTERED OFFICE AT #4,
3RD FLOOR, DIVYA SREE BUILDING,
19TH CROSS, 20TH MAIN,
J. P. NAGAR, 5TH PHASE,
BENGALURU - 560 078,
REPRESENTED BY ITS AUTHORIZED SIGNATORY AND
DIRECTOR,
SRI. MADHU KUMAR MANTENA,
AGED ABOUT 42 YEARS.
... RESPONDENT
(BY SRI. G. SUKUMARAN, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
AT ANNEXURE-A DATED 31.10.2019 PASSED IN
O.S.NO.25315/2018 ON I.A.NO.3 BY THE LEARNED XXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BANGALORE AND CONSEQUENTLY ALLOW THE I.A.NO.3;
AND ETC.,
IN W.P.NO.6050 OF 2020
BETWEEN:
M/S. UMIYA HOLDING PRIVATE LIMITED,
COMPANY INCORPORATED UNDER THE
PROVISIONS OF COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT #29/3,
H.M. STRAFFORD, 2ND FLOOR, 7TH CROSS,
VASANTH NAGAR, BENGALURU - 560 052,
REPRESENTED BY ITS AUTHORIZED SIGNATORY,
SRI. G. SRIKANTH REDDY,
AGED ABOUT 48 YEARS.
... PETITIONER
(BY SRI. KEMPE GOWDA, ADVOCATE FOR
SRI. SANJAY NAIR, ADVOCTE FOR
SRI. ANUP S SHAH LAW FIRM)
AND:
M/S. SARGA INDIA COMPANY
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
REGISTERED OFFICE AT #4,
3RD FLOOR, DIVYA SREE BUILDING,
19TH CROSS, 20TH MAIN,
J. P. NAGAR, 5TH PHASE,
BENGALURU - 560 078,
REPRESENTED BY ITS AUTHORIZED SIGNATORY AND
DIRECTOR,
SRI. MADHU KUMAR MANTENA,
AGED ABOUT 42 YEARS.
... RESPONDENT
(BY SRI. G. SUKUMARAN, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
AT ANNEXURE-A DATED 31.10.2019 PASSED IN
O.S.NO.25315/2018 ON I.A.NO.4 BY THE LEARNED XXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BANGALORE AND CONSEQUENTLY DISMISS THE SUIT IN
O.S.NO.25315/2018 AS PRAYED FRO IN I.A.NO.4; AND ETC.
THESE WRIT PETITIONS COMING ON FOR FURTHER
HEARING THIS DAY THROUGH VIDEO CONFERENCE, THE
COURT MADE THE FOLLOWING:
ORDER
In both these petitions, petitioner-landlord-company which is running the business of real estate development, happens to be the defendant in a civil suit in O.S.No.25315/2018 filed by the respondent-tenant for injunctive relief; petitioner-company had filed two applications, one in I.A.No.3 and the other in I.A.No.4 in substance for a direction to the respondent-tenant to pay a monthly a rent of Rs.2,36,000/- per month along with water & electricity bills; it has also sought for dismissal of suit; both these applications having been rejected, petitioner-company has knocked at the doors of writ court.
2. After service of notice, the respondent-plaintiff- tenant having entered appearance through its counsel, makes submission in justification of the impugned orders and 4 seeking dismissal of Writ Petitions, mainly contending that it has been making the payment of rent at the rate of Rs.94,900/- per month which includes GST and excludes water/electricity charges and that it is not in arrears of rent.
3. Since common questions of law & facts arise in both these petitions in which a challenge to a common order of the court below is laid, both they are taken up for final disposal together, as suggested at the Bar.
4. I have heard the learned counsel for the parties and I have perused the Petition Papers; the following is my discussion:
(a) The suit in question is for an injunctive relief; the vinculum juris of tenancy is not in dispute; the court below has granted interim relief to the respondent-tenant vide order dated 14.03.2018 which is since continued after dismissal of petitioner's application for vacating, is also not in dispute;
petitioner-company too has filed a civil suit in O.S.No.2594/2019 for a decree of possession; the only and short question is as to the rate of rent.
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(b) Petitioner contends that the rate of rent is Rs.2,36,000/- per month and that the respondent is liable to pay the water & electricity charges as well; this is prima facie substantiated by the Rental Agreement dated 31.12.2012 which is not in dispute; the contention of the respondent- tenant that the petitioner has let out an adjoining portion in front of the suit premises to another person for running the similar business and eventually, the business of the respondent has suffered and therefore, what is payable by way of rent is only Rs.94,900/- per month, is bit difficult to accept; however, this question to be determined after the trial, is also true; but that per se will not come in the way of this court making some equitable arrangement that would serve interest of both the sides pending disposal of the suit.
(c) The interim relief granted to the respondent herein vide order dated 31.07.2018 by the court below was put in challenge by the petitioner herein, in M.F.A.No.8835/2018 (CPC) which came to be disposed off by a Co-ordinate Bench of this Court, wherein at para 4, the following observation is made:
"4. In view of the fact that the suit for ejectment is filed by the appellant, the respondent's apprehension that the respondent 6 will be dispossessed without due process of law no longer survives. However, the appellant is justified in insisting on the respondent to pay the rent regularly to it, and therefore, the respondent shall pay the rent regularly to the appellant."
This also shows that there is an obligation resting on the shoulders of respondent-tenant to pay the rents regularly; it goes without saying that the existence of very obligation warrants tentative ascertainment of the rate of rent and other payables, which again will be subject to outcome of the suit; thus, an eminent case is made out for making some equitable arrangement ad litem and subject to final outcome.
(d) The Apex Court in Maria Margarida Sequeria Fernandes Vs. Erasmo Sequeria Fernandes Vs. Erasmo Jack de Sequeria, (2012) 5 SCC 370 at paras 85 & 86, has observed as under:
"... The Court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities and pass proper order for mesne profits. The Court must make serious endeavour to ensure that even-handed justice is given to both the parties...
...The Court can also direct payment of a particular amount and for a differential, direct furnishing of a security by the person who wishes to continue in possession. If such 7 amount, as may be fixed by the Court, is not paid as security, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence. This is a very important exercise for balancing equities. Courts must carry out this exercise with extreme care and caution while keeping pragmatic realities in mind and make a proper order of granting mesne profit. This is the requirement of equity and justice."
(e) The reasoning of the court below that the petitioner can seek a direction to the respondent for payment of rent at the asserted rate by filing an application in his ejectment suit, appears to be too technical a ground when parties are same, tenancy is admitted and only rate of rent is disputed; the learned Judge appears to have fallen in error of law and ignored the requirement of doing justice to the litigants by some equitable measure even during the pendency of the main matters; this apart, no reasonable effort is made by him to ascertain what is prima facie payable by way of rent on the basis of the material already on record; thus, the impugned order to that extent is infected with an error apparent on the face of the record, warranting indulgence of this court.
In the above circumstances, the challenge to the order dismissing petitioner's application for a direction for payment 8 of the rent at the rate of Rs.2,36,000/- per month, is partly favoured; a direction issues to the respondent-tenant to pay rent at the rate of Rs.2,36,000/- per month of which Rs.94,900/- (which is not disputed by respondent) shall be paid to the petitioner-landlord in addition to water & electricity bills, on or before fifth day of every calendar month and that the remainder shall be deposited in the court below with retrospective effect from the date of institution of the suit; the said amount shall be held in trust for the benefit of the party emerging victorious in the legal battle; the learned Judge of the court below shall take all coercive steps to enforce this direction and the same will necessarily include the striking off the pleadings/evidence of the respondent and eventual dismissal of his suit.
The other Writ Petition laying a challenge to the order dismissing petitioner's application for dismissal of the suit, is rejected, subject to the observations made herein above.
Now, no costs.
Sd/-
JUDGE DS/rv