Bangalore District Court
K.V.Prabhudev vs Vasanth Kumar on 2 November, 2015
IN THE COURT OF IX ADDL.CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 2nd day of November 2015
Present: Shri Krishnamurthy B.Sangannanavar,
B.Com.LL.B.,(Special)
IX Addl. C.C & S.J, Bangalore.
O.S. NO.7481/2013
Plaintiff: K.V.Prabhudev, S/o.K.R.Veeranna,
Aged about 62 years, Residing at
No.1, N.S.Palya, I Cross, BTM
Layout, 2nd Stage, Bangalore-560
076.
[By Sri. S.K.Nagaraj, advocate]
-Vs-
Defendant: Vasanth Kumar, S/o. Umedmalji,
Major, Proprietor, M/s.Vasanth
Cloth Emporium, No.39/3F,
Ground Floor, Kanakapura Main
Road, Bangalore-560 070.
(By Sri.P.D.Surana, advocate)
Date of institution of the suit 09.10.2013
Nature of the suit Ejectment
Date of commencement of 27.09.2014
recording the evidence
Date on which the judgment 02.11.2015
was pronounced
2 O.S.No.7481/13
Total duration : Day/s Month/s Year/s
23 00 02
JUDGMENT
This is a suit filed by plaintiff for ejectment of defendant from suit schedule premises and for recovery of Rs.1,12,000/- towards arrears of rent/damages for the month of February 2013 to September 2013.
2. On facts, case of the plaintiff is pleaded below:
The defendant is a tenant in occupation of non-residential premises bearing No.39/3F, situated at Kanakapura Main Road, Banashankari 2nd Stage, Bangalore-70. The measurement of the premises is East to West 22' and North to South 24' this is referred to as schedule premises owned by plaintiff. The defendant is in occupation of schedule premises on a monthly rent of Rs.14,000/- and he is carrying on business under the name and style of M/s.Vasanth Cloth Emporium. Initially, a lease agreement dated 1.10.1999 came to be entered in between plaintiff 3 O.S.No.7481/13 and defendant for nine years and the rent payable by defendant was Rs.5,100/- from 1.10.1999, it was agreed to be enhanced by 10% after completion of every two years and defendant was required to pay rent of Rs.7,466/- p.m. till expiry of lease agreed under the lease agreement dated 1.10.1999. He has paid a sum of Rs.1.0 lakh towards security deposit refundable by plaintiff at the time of vacating and handing over vacant possession of schedule premises. The lease expired on 30th September 2008. A legal notice issued on 1.11.2008, terminating tenancy and the supplemental agreement dated 15.7.2009, came to be entered was continued from 1.11.2008 till 30th June 2012 and defendant had agreed to pay Rs.14,000/- p.m. without any enhancement and presently, he is paying monthly rent at that rate as per the terms of the supplemental agreement dated 15.7.2009, without seeking further extension of time is bound to vacate, but he did not adhere to the terms of the said agreement, as such a quit notice issued dated 7.2.2013 terminating tenancy in compliance with S.106 of the Transfer of Property Act, 1882 as amended by Amendment Act, 2002. The defendant is a defaulter in paying 4 O.S.No.7481/13 rent. He has paid Rs.98,000/- in cash which has been adjusted towards arrears of rent from July 2012 till January 2013 and in this suit, sought for eviction of defendant from schedule premises and for recovery of Rs.1,12,000/- towards arrears of rent at the rate of Rs.14,000/- p.m. for the month of February 2013 to September 2013.
3. On facts, defence put forth by defendant is as follows:
He has admitted that he is in occupation of the plaint schedule premises as tenant and presently, he is paying monthly rent of Rs.14,000/- In fact, he has become a tenant in the year 1999 and at the time of entering into lease agreement, rent was Rs.2,050/- and he has paid Rs.60,000/- advance. HRC No.2687/1999 was filed which was ended in compromise and as per the settlement, it was agreed that the rent shall be paid at the rate of Rs.3,050/- from 1st March 1991 which has to be enhanced by 10% once in 2 years. The duration of the tenancy is permanent in nature. He agreed to pay Rs.5,100/- p.m. from 1.10.1999. Further, it was enhanced by 10% once in two years and he was agreed to pay Rs.7,466/- till the end of 30th 5 O.S.No.7481/13 August 2008. Further, he has paid Rs.40,000/- advance and he is paying rent at the rate of Rs.14,000/- p.m. without insisting for the rent being increased for a period till 30th June 2012 and thereafter, rent has to be increased by 10% once in two years. He is tendering rent at the rate of Rs.15,400/- p.m. immediately after expiry of four years from 1.7.2012. He offered to pay rent at the rate of Rs.15,400/- for the month of July 2012. However, plaintiff wanted to enhance not by 10% but by 20% and he is playing gimmicks to victimize defendant to secure higher enhancement of rent. He denied receipt of legal notice dated 7.2.2013 and denied that tenancy is terminated by issuance of such notice and he has sent Rs.98,000/- by way of bearer cheque towards rent at the rate of Rs.14,000/- p.m. till the end of January 2013. It is therefore, suit of the plaintiff is liable to be dismissed.
4. In view of the above prime pleadings, this court formulated the following issues for the purpose of trial:
(1) Whether the plaintiff proves that he has terminated the tenancy rights of the defendant legally and validly?6 O.S.No.7481/13
(2) Whether the plaintiff further proves that the defendant is in arrears of rent as claimed by him?
(3) Whether the plaintiff is entitled for the reliefs as prayed for?
(4) To what decree or order?
5. In support of the above issues, plaintiff examined himself as P.W.1 and through him, Exs.P-1 to P-3 documents got marked. On the contrary, defendant examined himself as D.W.1 and through him, Exs.D-1 and D-2 got marked.
6. After closure of evidence on either side, having heard the learned counsels on record, this court would prefer to record the following findings on the above issues:
Issue No.1: In the Affirmative Issue No.2: Does not arise, since the defendant has paid arrears of rent during pendency of the suit.
Issue No.3: Partly in the Affirmative Issue No.4: As per final order, for the following:7 O.S.No.7481/13
REASONS
7. Issue Nos.1 to 3: At the very outset, it would be just and proper to make mention of admitted facts of the case. That plaintiff and defendant are, lessor and lessee in respect of the suit schedule property and the defendant is in occupation of schedule premises to carry on business under the name and style of M/s.Vasanth Cloth Emporium. In this regard, they have admitted that lease agreement was entered between father of plaintiff and defendant and thereafter, between plaintiff and defendant and the initial rent agreed and the present rent payable by defendant as pleaded in the plaint is also admitted. They admit that initially, defendant has paid Rs.60,000/- towards security deposit refundable by plaintiff at the time of vacating and handing over of the vacant possession of the schedule premises and admit that Rs.40,000/- was subsequently paid as an additional security deposit refundable by plaintiff. In other words to say that the plaintiff had Rs.1,00,000/- with him which was paid by defendant towards security deposit refundable by plaintiff at the time of vacating and handing over of the suit premises.
8 O.S.No.7481/138. According to plaintiff, supplement agreement dated 15.7.2009 came to be expired on 30th June 2012. He has pleaded further and deposed that the defendant was irregular in payment of rents. Of course, he has paid Rs.98,000/- in cash which has been adjusted towards arrears of rent for the month of July 2012 till January 2013. In so far as this payment made by defendant is for the said period is concerned was in cash but the defendant submits that it was paid by bearer cheque in the name of plaintiff for Rs.98.000/-. Anyhow, whether it was paid in cash or in cheque, makes no difference, since the plaintiff admit payment of Rs.98,000/- towards arrears of rent for the month of July 2012 till January 2013.
9. According to plaintiff, the defendant had agreed to vacate schedule premises by 30th June 2012 as the period of lease was continued from 1.11.2008 to 30th June 2012 and as defendant had agreed to pay Rs.14,000/- p.m. without any enhancement, but defendant failed to abide by the agreed terms in occupation of suit premise even after several and repeated requests and demand 9 O.S.No.7481/13 made to him to quit and deliver vacant physical possession of schedule premises in his favour as such, caused legal notice dated 7.2.2013 to the address of the schedule premises in the name of defendant by RPAD calling upon him to quit and vacate the schedule premises within 15 days from the date of receipt of said notice. However, the defendant denied receipt of this notice in his written statement. On the contrary, plaintiff has pleaded that by issuance of such notice, he has terminated tenancy as contemplated u/s.106 of T.P.Act, 1882 as amended by Amendment Act, 2002. According to plaintiff, the said notice served to the address of the defendant to the schedule premises on 9.2.2013 and he has not complied with his demand made in the notice as such, he is liable to be evicted from schedule premises.
10. If we examine evidence of P.W.1, in cross- examination, it is elicited he could able to say the quantum of rent when defendant occupied the schedule premises about 30 years ago and could have been approximately Rs.3,050/- p.m. and he did not know whether occupied the premises initially for Rs.2,050/- p.m. when his father was 10 O.S.No.7481/13 alive. He admits that on 1.10.1999, rent paid by defendant was at Rs.5,100/- p.m. and it was as agreed to pay at enhanced rate of rent and thereafter, rent enhanced by 10% and in the month of August 2008, it was Rs.7,466/- p.m. He admits that from 1.7.2012 to 31.1.2013, defendant at the rate of Rs.14,000/- p.m. has paid as the lump sum and he has paid rent from 1.2.2013 to 31.5.2014 at the rate of Rs.15,400/- p.m. and he has paid Rs.2,56,200/- for 16 months of rent by way of cheque. It is therefore, according to defendant, the plaintiff without raising any objections has received Rs.2,56,200/- towards enhanced rate of rent. However, he denied about receipt of rent contending that he never asked him to pay rent. It is also found in his evidence about his admission that from 1.6.2014 to 31.12.2014 at the rate of Rs.15,400/- p.m. defendant has paid Rs.1,07,800/- by way of cheque and the same has been received by him, has encashed on 15.1.2015 and he admits that from 31.12.2014, he has received the rent at Rs.15,400/- p.m. and he is receiving rent from defendant from 2008 and prior to that, his father was receiving rent from him. He denies that no arrears was due by defendant as on 11 O.S.No.7481/13 7.2.2013 when notice was caused, but he admits that the said fact is not mentioned in the notice about the arrears of rent to be payable by defendant but facts remain found from cross- examination of this witness and the evidence of P.W.1 that defendant was due and he has paid arrears of rent in lump sum by way of cheque as stated above as such, it goes without saying that he was irregular in payment of monthly rents to the plaintiff.
11. If we examine evidence of D.W.1, he reiterated contents of written statement and sworn in that Rs.2,56,200/- was paid towards arrears of rent by way of cheque dated 18.6.2014 and he has paid Rs.1,07,800/- also by way of cheque dated 15.1.2015. In cross-examination, he admits that by efflux of time on 30.9.2008, lease entered on 1.10.1999 came to be end. He admits about receipt of remind notice two months prior to 16.7.2008. It is to be noted here that plaintiff and defendant further entered into supplement agreement on payment of Rs.14,000/- p.m. and it was for four years, which is admitted by defendant. According to plaintiff, in the said supplement agreement, 12 O.S.No.7481/13 defendant has agreed to vacate schedule property in favour of plaintiff without raising any objections by 30th June 2012 but the defendant in cross- examination has deposed that although agreed, plaintiff promised orally for extension of lease by holding over which of course is denied by plaintiff.
12. D.W.1 admits that his address in the cause title is correct. He admits receipt of legal notice dated 7.7.2013. It is to be noted here that this notice is marked as Ex.P-1. Ex.P-2 is postal acknowledgement wherein he admits his signature, therefore his contention that Ex.P-1 legal notice caused prior to institution of suit terminating tenancy is not received is held untenable when he admits in his own evidence. His evidence that plaintiff asked him to enhance rent at Rs.40,000/- p.m. and advance of Rs.5.0 lakhs has to be held afterthought, since not pleaded in his written statement and when he failed to reply Ex.P-1 notifying such facts. If we examine Ex.P-1 legal notice dated 7.2.2013 wherein notified the defendant that in spite of this notice of termination of tenancy after expiry of 15 days from the date of service of this notice on him, if he continue to be in 13 O.S.No.7481/13 possession of the schedule premises, his occupation would be unlawful and unauthorized and consequently, liable to pay a sum of Rs.500/- per day as damages for use and occupation of the schedule premises which is the prevailing market rent in the area or locality in which the schedule premises is situated. Ex.P-2 as already stated above, is postal acknowledgement which being admitted by defendant. The contrary documents placed on record by defendant is Ex.D-1 certified copy of compromise in HRC No.2687/1989 and Ex.D-2 order sheet thereon recording compromise disposing of the HRC as settled between petitioner and respondent is nothing to do with present suit.
13. Learned counsel for plaintiff placed reliance reported in ILR 2010 Kar.2936 in Karnataka State Co-operative Consumers Federation Ltd., Rep. by its Managing Director vs. Smt.Lakshmamma @ Venkatalaksmamma wherein it was held, "It is settled that mere acceptance of the amounts equivalent to rent by a landlord from the tenant after a lease has been determined either by efflux of time or by notice to quit 14 O.S.No.7481/13 cannot be regarded as evidence of a new agreement of tenancy."
It is therefore, submits that plaintiff is entitled for a decree in his favour to evict defendant from schedule premises.
14. On the contrary, learned counsel for defendant placed reliance reported in AIR (36) 1949 Federal Court 124 in Kai Khushroo Bezonjee Capadia vs. Bai Jerbai Hirjibhoy Warden and another and another decision in AIR 1972 SC 819(1) in Bhawanji Lakhamshi and others vs. Himatlal Jamnadas Dani and others wherein the first ruling is followed wherein, it was held in paragraph-9 "The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance 15 O.S.No.7481/13 in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise."
15. Further placed reliance reported in 2011 (1) KLJ 258 in M/s. Auto World vs. Smt. K.V.Sathyavathi wherein followed the above two rulings wherein it was held, "It is also to be kept in view that "rent" is defined as the consideration for a lease. When that relationship is terminated, it would be incongruous to receive any further 16 O.S.No.7481/13 consideration, except when the law expressly enables such receipt. As for instance under Section 112 of the T.P. Act, or where Rent Acts permit such receipt of rent even during pendency of proceedings for eviction. Further, receipt of any amount as damages unilaterally, without determination of the same at an enquiry, cannot be binding on the tenant, and would be speculative as to the possibility of any such damages being quantified at a later stage.
The trial Court has rendered the impugned judgment mechanically and without any reasoning being assigned to agree with the plaintiff's arguments or how the decisions of the Apex Court discussed above, are to be distinguished."
16. Further, relied on AIR 2005 KAR.1884 in M/s.Amar Promoters, Bangalore vs. J.S.A. Gajendra Reddy and others wherein held, "(A) Transfer of Property Act (4 of 1882), Ss. 111(g), 112 - Lease - Determination of, by forfeiture and re-entry - Is in eventuality of lessee failing to construct a multi-storeyed 17 O.S.No.7481/13 building within a period of three years from the date of deed - Determination of lease on grounds of default in payment of rent preceded by quit notice - Not intended as per lease deed- Lessor is not entitled to exercise a right of re-entry prematurely.
(B) Transfer of Property Act (4 of 1882), S.106 - Lease - Determination on grounds of default in payment of rent - Tenant whether "habitual defaulter" - Notice does not clearly indicate actual months for which rent was due - Letter acknowledging payment towards arrears of rent does not contain particulars of cheques or amounts for which same were issued, nor the date of issue - That apart, it was open for lessor to adjust arrears of rent out of refundable security deposit which is larger than amount of arrears - It cannot be said that lessee was in arrears of rent - Determination of lease on this count is invalid."
did not come to the assistance of defendant in view of the fact that defendant proved to be irregular in payment of the rent and his unilateral payment during pendency of the suit cannot be said that he 18 O.S.No.7481/13 is still a tenant in occupation of suit premises when plaintiff could able to prove termination of tenancy as per Ex.P-1 which has to held legal and valid. As already pointed out that his payment of rent could be found in lump sum as stated above while appreciating evidence of P.W.1 and D.W.1 by way of cheques and his payment of rent during pendency of this suit in lump sum unilaterally deciding himself that it was towards rent cannot be said that he has paid such amount to the plaintiff towards rent and the plaintiff has accepted such amount as rent. It is to be noted here that if he was prompt in payment of rent as agreed and rent as per supplement of agreement, matter would have been different but facts remain established from his own conduct that he was not regular in payment of arrears of rent and the payment made by him was by way of cheques in lump sum. It is therefore, the principles enunciated in the decisions relied upon by him did not come to his assistance. In this view of the matter, plaintiff has to be held terminated the tenancy rights of the defendant legally and validly. In this view of the matter, finding on issue No.1 would be record in the Affirmative.
19 O.S.No.7481/1317. In view of submission made by learned counsel for plaintiff that defendant has paid arrears of rent claimed in the suit during pendency of the suit and he received it as arrears of damages, as such, recording finding on issue No.2 does not survive for consideration. Accordingly, finding has been recorded on this issue.
18. In view of the above findings, plaintiff is entitled for relief of eviction of defendant from suit schedule premises as prayed as such, finding on issue No.3 would be record in so far as such relief is concerned in the Affirmative.
19. Issue No.4: In view of the above findings and in the result, this court passes the following:
O R D E R
(a) The suit of the plaintiff is hereby decreed in part with cost.
(b) The plaintiff is held entitled to evict defendant from schedule premises.
Consequently, defendant is directed to quit and vacate the vacant possession of schedule premises within ninety (90) days.
(c) Draw a decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the 20 O.S.No.7481/13 open court, on this the 2nd day of November 2015).
(Krishnamurthy B.Sangannanavar) IX Addl. City Civil & Sessions Judge, Bangalore.
A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 K.V.Prabhudev List of witnesses examined for defendant:
D.W.1 Vasanth Kumar List of documents exhibited for plaintiff:
Ex.P-1 Copy of legal notice Ex.P-2 Postal acknowledgement Ex.P-3 Postal receipt
List of documents exhibited for defendant:
Ex.D-1 Settlement in HRC 2687/89
Ex.D-1(a) Signature of plaintiff in HRC No.
2687/89
Ex.D-2 Order sheet in HRC No.2687/89
IX Addl. City Civil & Sessions
Judge, Bangalore.