Bangalore District Court
Mr.C.S.Nagaraj vs Mr.A.Nataraj on 19 February, 2016
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XIII ADDL. CITY CIVIL JUDGE,
Form No.9 MAYOHALL UNIT, BANGALORE.
(Civil)
Title sheet for
Judgment in
Present: Sri.B.Narayanappa, M.A.LL.B.,
suits (R.P.91) (Name of the Presiding Judge)
OS No.25340/2008
(CCH-22)
Plaintiff:- Mr.C.S.Nagaraj,
S/o Late Sri.C.Subramaniam,
Aged about 52 years,
R/at #811/15, 1st Block,
8th Main Road,
Banashankari I Stage,
Hanumanthanagar,
Bangalore-50
(By Sri. CR Advocate)
V/s.
Defendant:- 1. Mr.A.Nataraj,
S/o Late A.A.Eshwar,
Major, R/at 6 A, MIG II Stage,
KHB Colony, Basaveshwaranagar,
Bangalore-17
Since deceased by his LRs)
D1(a) N.Sundar, Aged about 45 years,
D1(b) Sri.N.Shekar,
Aged about 42 years,
Both are sons of late Sri.A.Nataraj
Both are R/at No.6A, MIG II Stage,
2 O.S.25340/2008
KHB Colony, Basaveshwara Nagar,
Bangalore-79.
(By Sri.TS Adv., for D.1 & D.2)
Date of Institution of the suit 20.2.2008
Nature of the (Suit or pro-
note, suit for declaration and Mandatory Injunction
possession, suit for
injunction, etc.)
Date of the commencement of 25.7.2009
recording of the Evidence.
Date on which the Judgment 19.2.2016
was pronounced.
Year/s Month/s Day/s
Total duration 07 09 28
XIII ADDL.CITY CIVIL JUDGE, BANGALORE.
3 O.S.25340/2008
JUDGMENT
The plaintiff has filed suit against the defendants seeking the mandatory injunction directing the defendants to put the plaintiff in vacant possession of newly constructed area East to West 14' and North to South 10' namely suit schedule "B" property and to direct the defendant to pay damages for the delay upto the date of suit amounting to Rs.1,44,000/- from the date of suit till surrender at Rs.15,000/- per month.
2. Brief facts of the plaintiff's case is that the plaintiff was a tenant under the defendant in respect of suit schedule 'A' property one shop premises bearing No.52, "Jyothi Building" K.V.Temple Street, 1st cross, Manavarthpet, Bangalore. The defendant approached and requested the Plaintiff to vacate and surrender the vacant possession of the aforesaid premises i.e. suit schedule A property in occupation of the plaintiff to enable the defendant to put up construction. The 4 O.S.25340/2008 defendant assured the plaintiff that he will put up new construction and put the plaintiff in vacant possession of newly constructed area measuring east to West 14' and North to South 10' ft i.e., schedule 'B' property. On the assurance of the defendant, agreement dated 21/11/2002 was came to be entered into between the plaintiff and the defendant. In accordance with the terms of the agreement, the plaintiff surrendered the vacant possession of the premises believing that the defendant will put up construction and deliver the premises in the newly constructed area and it was agreed between the parties that the defendant has to put up construction of entire building within 1 year from the date of surrender of vacant possession. The Defendant completed the construction after a great delay on 16/8/2006. Inspite of completion of the construction of the building the defendant did not keep up his promise and has not called upon the plaintiff to occupy the portion of the newly constructed building. The plaintiff had requested the defendant to put him in possession as per agreement. 5 O.S.25340/2008 But, the defendant avoided the same for the best reasons known to him. Therefore, the plaintiff is entitled to damages for the delay from the defendant at Rs.8,000/- per month till the date of filing of the suit and from the date of suit at Rs.15,000/- p.m. till the plaintiff put in vacant possession of the newly constructed premises. Hence, this suit.
3. After the institution of the suit, suit summons were issued to the defendant. The defendant appeared before the court through his counsel and filed the written statement denying all the material averments made in the plaint. He has contended that the plaintiff has occupied a portion of shop premises measuring 10 x 10 ft as per lease agreement dated 1.1.94 on monthly rental basis for a term of 11 months with a assurance of vacating the said premises, after lapse of expiry of 11 months, the plaintiff had to handover vacant possession to the defendant to put up construction by the defendant after demolishing the existing construction. After expiry 6 O.S.25340/2008 of lease period plaintiff approached the defendant for extension of time. Accordingly, lease period was extended and as per the agreement dated 12.2.1999, the plaintiff had agreed to hand over the vacant possession, but the plaintiff has not vacated the said premises even after expiry of lease agreement dated 12.12.1999. The Plaintiff again approached the defendant for further extension of time. Therefore, the defendant agreed to extend time for a period of 2 years as per agreement dated 1.1.2001. On the assurance given by the plaintiff to vacate the premises on or before 31.12.2002. The advance amount given by the plaintiff of Rs.10,000/- was adjusted towards the rent. The plaintiff after adjusting, deposited amount agreed to vacate the premises and he has made arrangements to shift his business to the adjacent premises M/s Devi Graphics, bearing No.# 10A, D.Block, Balaji Complex, measuring 10 x 15' and taken a said premises on lease. The defendant made arrangements for demolishing the existing building to put up construction, but surprisingly the Plaintiff put a 7 O.S.25340/2008 condition to vacate the premises only in the event of defendant conceding for execution of agreement to accommodate him in the new building to the extent of the same measurement which was in his occupation, the defendant had conceded and forced to sign the agreement on the instructions of the plaintiff. The plaintiff got prepared the agreement and he obtained signature of the defendant. On the date of agreement dt.21.11.2002 the plaintiff had not paid any amount to the defendant. Hence, agreement dated 21.11.2002 is without consideration. Inspite of his best efforts, the defendant could complete the building in the month of December 2005. After completion of the new building, the defendant called upon the plaintiff to occupy the new building on terms and conditions of the lease. But, the plaintiff did not occupy any portion in newly put up premises. The defendant completed the construction of the main building in the month of Dec.2005, but the plaintiff did not occupy any portion in the new building. The defendant waited for 2 years for occupying the 8 O.S.25340/2008 premises by the plaintiff and he suffered loss to the extent of Rs.13,000/- per month totally Rs.3,12,000/- Therefore, the defendant claimed the total claim of Rs.3,12,000/- from the plaintiff for a period of two years.
4. The plaintiff has filed rejoinder denying the counter claim of the defendant contending that the plaintiff bonafidely demanded the defendant to surrender vacant possession of the building. He denies the averments that the defendant communicated to the plaintiff to occupy the premises in the newly constructed building on 30.12.2015. He contends that no such communication given to the plaintiff and due to delay caused by the defendant he had to take premises on lease and he had to pay huge rents. Therefore, the defendant is liable to pay damages for the delay. But, the plaintiff is not able to pay any amount much less Rs.3,12,000/- to the defendant and he further contended that he is not aware of the facts that the defendant kept the building Vacant for 2 years.
9 O.S.25340/2008
5. On the above said pleadings, my predecessor in office framed the following issues:
1) Whether the plaintiff proves that on 21.11.2002 the defendant has executed an agreement in his favour agreeing to deliver a portion of premises to be newly constructed by him?
2) Whether the plaintiff is entitle to the vacant , physical possession of the suit 'B' schedule property in pursuance of the agreement dated 21.11.2002?
3) Whether the defendant proves that the agreement dated 21.11.2002 is without consideration and is void?
4) Whether the defendant proves that he called upon th3e plaintiff and he failed to occupy the suit 'B' schedule premises as contended in para 8 of his written statement?
5) Whether the plaintiff is entitle for damages of Rs.1,44,000/- till the date of suit against the defendant?
6) Whether the plaintiff is entitle for damages of Rs.15,000/- p.m. from the date of suit and till the date of delivery of 'B' schedule premises to him?
7) Whether the valuation of the suit and payment of court fee is proper?
8)Whether the agreement dated 21.11.2002 is not enforceable for the reasons stated in para 17 of written statement?
9) Whether the suit is barred by limitation?10 O.S.25340/2008
10) Whether the suit for Mandatory injunction without seeking the relief of specific performance of agreement is not maintainable?
11) Whether the defendant is entitle to damages of Rs.13,000/- p.m. against the plaintiff from 1.1.2006 to 9/12/2007 amounting to Rs.3,12,000/- as contended in para 24 of written statement and counter claim.
12) What order or decree?
6. The plaintiff in order to prove his case has filed his affidavit and in support of his case he got filed affidavits of his two witnesses by way of examination in chief, same was taken as PW1 to 3 and got marked Ex.P1 to 14. During the pendency of the suit, the original defendant died. Hence, his LRs were brought on record. On behalf of the defendants, defendant No.1 (a) N.Sundar son of the deceased defendant has filed his affidavit by way of examination in chief same was taken as DW1 and got marked D1 to 6 and closed the evidence of Defendants.
7. Heard, the arguments both sides.
11 O.S.25340/2008
8. My finding on the above issues are as under:
Issue No.1 ....... In the affirmative
Issue No.2 ....... In the Negative
Issue No.3 ....... In the Negative
Issue No.4 ....... In the Affirmative
Issue No.5 & 6:.......In the Negative.
Issue No.7:........ Court fee paid on the plaint
is proper
Issue No.8:...... In the affirmative.
Issue No.9:....... In the affirmative
Issue No.10:..... In the Negative
Issue No.11:..... In the Negative.
Issue No.12: As per final order.
For the following:
REASONS
8. Issue No.1: PW1/plaintiff in his affidavit evidence has reiterated and reaffirmed the plaint averments and got marked Ex.P1 to Ex.P14. In his cross examination he states that he took a suit property on lease for the first time in the year 1994 and he further admits that 12 O.S.25340/2008 building was very old. He admits that he had agreed to vacate the premises whenever the defendant needs to demolish the old building and construct a new building. He further admits the suggestion that on every 2 years, he used to execute the lease agreement and agreed to vacate the premises whenever the defendant is ready to demolish the building and further he admits the lease dated 1.1.2000 and admits the suggestion that the defendant had agreed to prepare sanction plan to put up new construction and he put forth the condition that defendants should grant him a portion in newly constructed building. The defendant himself prepared the document and he admits the suggestion that the defendant completed the construction of new building in the month of Dec.2005 and he admits the suggestion that after vacating the building the defendant started to construct new construction in the suit schedule property. He continued the said business till today and he is residing in his own house. He denied that suggestion that he had not met the defendant and 13 O.S.25340/2008 discussed about taking premises on fresh terms and conditions. He did not issue any notice to defendant. He admits the suggestion that as per terms of Ex.P1 if he failed to take premises within 15 days from the date of communication by the defendant he is at liberty to lease out building for others. He denied the suggestion that the defendant had got the premises vacant on 30/12/2005 to 10/12/2007 as he would come and take the same. He denied the suggestion that he did not approach the defendant to take the premises on lease and he admits the suggestion that defendant sustained loss of Rs.13,000/- p.m. as premises was kept vacant, and he answered to the question put forth by the counsel, that he is ready to pay damages of Rs.3,12,000/- if the defendant is ready to lease out the suit schedule premises.
9. PW2 in his affidavit evidence he supported the affidavit evidence of PW1. In his cross-examination he has stated that himself and plaintiff are very close friends. The plaintiff vacated the premises due to 14 O.S.25340/2008 assurance of reconstruction. Plaintiff had not occupied the constructed building because of not giving the same. He denied the suggestion that defendant No.1(a) got vacant the constructed building for about 2½ years. He does not know that due to kept vacant of premises for 2 ½ years and defendant No.1(A) has sustained loss of Rs.3,00,000/-. PW3 in his affidavit evidence has supported the affidavit evidence of Pw1 & 2 but, he has not been cross-examined by the defendant counsel.
10. DW1 in his affidavit evidence has reiterated and reaffirmed the contents of written statement. In his cross examination lead by Ld. Plaintiff counsel he has stated that the suit schedule property measures East West 39 ½ ft. North South 33 ½ ft. building was constructed on the suit property as per license and sanction plan. In the month of December 2002, old building was demolished and new building was constructed in the year 2005. On 16.03.2006 new building was opened. In the old building plaintiff was a tenant. After opening the new building on 30/12/2005 15 O.S.25340/2008 his father called the plaintiff and told him that he would lease out 10 x 10 ft shop to the plaintiff. He denied the suggestion that after construction of the new building plaintiff was not called and not offered to occupy new premises. He denied the suggestion as they did not offered premises in new building to the Plaintiff, they had to pay damages to the plaintiff.
11. Though the defendant has contended that the plaintiff has taken his signature forcibly on the Ex.P1 surrender of lease agreement dated 21/11/2002, therefore, he had signed on the same, but the defendant has not at all denied the execution of surrender of lease agreement Ex.P1 in favour of the plaintiff. The defendant admits his signature on Ex.P.1. When the defendant has admitted his signature on Ex.P.1 it is crystal clear that he had executed Ex.P.1 in favour of the plaintiff. It is not in dispute that the plaintiff was a tenant under the defendant in respect of suit schedule 'A' property and as per agreement entered into between plaintiff and defendant as per Ex.P1, the plaintiff had vacated the suit 16 O.S.25340/2008 schedule 'A' property and surrendered the same to the defendant for construction of new building and the defendant had agreed to deliver a portion of the premises in the newly constructed building i.e., suit schedule 'B' property in favour of the plaintiff. PW1 in his cross examination has clearly stated that he took the schedule property on lease in the year 1994. In his further cross- examination he has admitted the suggestion of learned defendant counsel that before vacating the premises the security deposit was adjusted towards rent and he is aware of contents of Ex.P.1. Therefore, from the aforementioned admission of PW1 it is crystal clear that the defendants have not at all disputed the execution of Ex.P.1 the surrender of lease agreement executed in favour of the plaintiff. Therefore, I am of the considered view that plaintiff has proved that on 21.11.2002 the defendant has executed an agreement in his favour agreeing to deliver a portion of the premises to be newly constructed by him. Hence, I answer issue No.1 in the affirmative.
17 O.S.25340/2008
11. Issue No.2: As I have already stated above while discussing the issue No.1 it is not in dispute that the defendant had executed an agreement dated 21/11/2002 i.e. Ex.P1 in favour of the plaintiff agreeing to deliver a portion of the premises in the newly construed building by him as per the terms and conditions of Ex.P1, within 1 year from the date of vacating the premises by the plaintiff and it was agreed between the parties that the defendant shall put up construction within 1 year from the date of surrendering vacant possession by the plaintiff and to deliver vacant possession i.e. suit schedule 'B' property in a newly constructed building to the plaintiff but as agreed by the defendant he was unable to complete the new building within a stipulated period as per terms of agreement ExP1 and as per the contention of the defendant, the defendant completed the new building in the month of December 2005 and asked the plaintiff to occupy the suit schedule 'B' property. But, as per the contention of the defendant the plaintiff did not occupy the new shop premises in the 18 O.S.25340/2008 newly constructed building. Dw1 in his cross examination has clearly stated that in the month of December 2002 old building was demolished and new building was constructed in the year 2005. On 16/3/2006 building opening ceremony was performed and he further stated in his cross examination that on 30-12-2005 his father defendant called the plaintiff and asked him to occupy 10 x 10 ft shop in the newly constructed building , but the plaintiff does not turn up. Therefore, a portion of shop constructed in the new building was not given to the plaintiff and it was kept vacant for a period of 2 years waiting for the plaintiff to occupy the same. DW1 got marked Ex.D6, the notice issued to the plaintiff by defendant wherein it is stated that he has put up a commercial building in the property No.50, (old No.52), K.V.temple street, Bangalore. The construction is already completed , if you are interested in occupying any portion as a tenant under him in the said premises, you may come and meet him to discuss the terms and conditions of the lease. So, from the ExD6 19 O.S.25340/2008 it is crystal clear that the defendant by issuing notice to plaintiff called upon him to occupy a portion in newly constructed building as a tenant, but the plaintiff did not occupy any portion in the newly constructed building and as per the contention of the defendant that the plaintiff did not occupy any portion in the newly constructed building as he had shifted his business to the adjacent building.
12. Inspite of issuance of notice by defendant as per Ex.D6 to plaintiff to occupy a portion in the newly constructed building, he did not come forward to occupy the same and thereby he has violated the terms of agreement dt.21.11.2002. Therefore, the plaintiff is not entitled to the vacant physical possession of suit schedule 'B' property in pursuance of the agreement dated 21.11.2002. Hence, answer issue No.2 in the Negative.
13. Issue No.3: The defendant in his written statement has contended that as on the date of 20 O.S.25340/2008 agreement dt. 21.11.2002, the plaintiff has not paid any amount to the defendant as consideration for the purpose of accommodating the plaintiff in the newly constructed building. Hence, the agreement dated 21.11.2002 is without consideration and the same is void and the plaintiff cannot enforce the same.
14. Admittedly, the defendant had executed agreement dated 21.11.2002 without consideration and as per the agreement dated 21.11.2002 as per Ex.P1, the plaintiff had surrendered the vacant possession of suit 'A' property to the defendant for construction of new building and defendant had agreed to deliver a portion of premises in the newly constructed building to the plaintiff. When such being the terms and conditions incorporated in agreement dt. 21.11.2002, the contention taken by the defendant that agreement dated 21.11.2002 is without consideration holds no water. Therefore, I am of the opinion that the defendant has failed to prove that the agreement dated 21.11.2002 is without 21 O.S.25340/2008 consideration and is void. Hence, I answer the issue No.3 in the Negative.
15. Issue No.4: As per the terms and conditions of agreement dated 21.11.2002 i.e. Ex.P1, the defendant had to call upon the plaintiff to occupy the suit schedule 'B' property in the newly constructed building. Accordingly, the defendant called upon the plaintiff, but the plaintiff failed to occupy the suit schedule property. The defendant in his written statement clearly stated that in the month of December 2005, he had completed construction of new building and he had issued communication letter dated 30.12.2005 to the plaintiff to occupy any portion in the newly constructed building which could be seen from Ex.D6. On perusal of the letter issued by the defendant to the plaintiff Ex.D.6 dated 30.12.2005 it is crystal clear that the defendant called upon the plaintiff to occupy any portion in the newly constructed building as a tenant. But, inspite of receipt of notice issued by defendant, the plaintiff has 22 O.S.25340/2008 failed to occupy any portion in the newly constructed building and as per the contention of the defendant, the Plaintiff at the time of vacating the premises shifted his shop/business to adjacent building. Therefore, he did not come forward to occupy any portion in the newly constructed building and admittedly the plaintiff had not come forward to occupy any portion in the newly constructed building. Therefore, it is crystal clear that the defendant has proved that he called upon the plaintiff to occupy any portion in the newly constructed building, i.e., suit schedule 'B' property but, the plaintiff has failed to occupy the suit schedule 'B' property as contended in para 8 of written statement. Hence, I answer issue No.4 in the affirmative.
15. Issues No.5 and 6: Since, issue No.5 & 6 are interlinked with each other they are taken up together for common discussion in order to avoid the repetition of facts. The Plaintiff has contended that due to delay in construction of building by the defendant and as the 23 O.S.25340/2008 defendant did not deliver any portion in the newly constructed building, he has suffered loss to the extent of Rs.1,44,000/- till the date of filing of suit . Therefore, he is entitled for damages of Rs..1,44,000/- and damages of Rs.15,000/- per month from the date of filing of the suit till delivery of suit schedule 'B' property.
16. Admittedly the suit was filed on 20.2.2008 and admittedly the new building was constructed in the month of December 2005 and intimation was delivered to the plaintiff by the defendant as per Ex.D.6 on 30.12.2005 to occupy any portion in the newly constructed building. Inspite of it the plaintiff did not occupy any portion in the newly constructed building. Therefore, according to the defendant they waited for two years for the plaintiff to occupy any portion in the newly constructed building by the plaintiff, but plaintiff did not turned up and did not occupy any portion in the newly constructed building. If at all the plaintiff was in need of any portion in the newly constructed building, he would 24 O.S.25340/2008 have occupied the same as soon as he had received the intimation from the defendant as per Ex.D-6 on 30.12. 2005, but he did not occupy any portion in the newly constructed building. Even though the defendant had waited for two years for the occupation of any portion in the newly constructed building by the plaintiff, inspite of it, the plaintiff has come up with the present suit in the year 2008 i.e., after lapse of 3 years from the date of construction of new building in the year 2005. In view of the plaintiff has failed to occupy any portion in the newly constructed building inspite of issuance of communication by the defendant to the plaintiff as per Ex.D6. Therefore, I am of the view that the plaintiff is not entitled for damages of Rs.1,44,000/- till the date of filing of this suit as claimed by him and also he is not entitled for the damages of Rs.15000/- p.m. from the date of filing of this suit. Hence, I answer 5 & 6 in the affirmative.
25 O.S.25340/2008
17. Issue No.7 : The plaintiff has filed the suit for mandatory injunction directing the defendant to put the plaintiff in vacant physical possession in a newly constructed building i.e., suit schedule 'B' property and for damages of Rs.1,44,000/- till the date of filing of suit and for damages of Rs.15,000/- p.m. from the date of suit till surrender of vacant possession of 'B' schedule property and he has paid court fee of Rs.9,730/- . Out of it, he has valued the suit for prayer 'A' at Rs.1,000/- and paid Rs.25/- as Court fee and valued the suit for damages at Rs.1,44,000/- and has paid court fee of Rs.9,705/- and totally he paid court fee of Rs.9,730/- which is proper. Hence, I answer issue No.7 holding that the valuation of the suit and payment of court fee paid on the plaint is proper.
18. Issue No.8: The defendant has contended in his written statement that the agreement dated 21.12.2002 is not enforceable as the same was without consideration. Admittedly, the agreement dated 26 O.S.25340/2008 21.11.2002, i.e. Ex.P1 was entered into in between plaintiff and defendant and as per EX.P1, the plaintiff surrendered the vacant portion of suit schedule 'A' property to the plaintiff for the construction of new building and as per the terms and conditions of Ex.P1, the defendant had to complete the construction of new building within 1 year and he had to deliver the vacant possession of suit schedule property in the newly constructed building to the plaintiff. Hence, the agreement dated 21.11.2002 was executed by defendant No.1 in favour of the plaintiff without receiving any consideration as per the terms and conditions of the agreement i.e., Ex.P.1 . When Ex.P1 was entered into between both the parties without payment of any money i.e., without receiving any consideration by the defendant from the plaintiff. It is crystal clear that as per the terms and conditions of Ex.P1, it is a enforceable document. But, inspite of defendant has completed the construction of new building in the month of December 2005, and in spite of communication sent by the defendant to the 27 O.S.25340/2008 plaintiff i.e. on 30.12.2005 as per Ex.D6, the plaintiff did not come forward to occupy any portion in newly constructed building, and thereby, the plaintiff has failed to enforce the terms and conditions of agreement dated 21.11.2002 and he has come up with the present suit after lapse of 6 years from the date of agreement dt.21.11.2002 seeking enforcement of the agreement dated 21.11.2002 which is not enforceable since it is time barred . Hence, I answer issue No.8 in the affirmative.
19. Issue No.9: The defendant has contended that the suit is barred by limitation. The plaintiff has filed the present suit to enforce the agreement dated 21.11.2002 i.e., as per Ex.P1 after lapse of 6 years from the date of execution of agreement dated 21.11.2002. Any agreement entered into between the parties is valid for a period of 3 years from the date of its execution. But , the plaintiff without filing the suit within period of 3 years from the date of execution of Ex.P1 has come up 28 O.S.25340/2008 with the present suit after lapse of 3 years. Therefore, the suit is barred by limitation. Hence, I answer issue No.9 accordingly.
20. Issue No.10: The plaintiff and defendant have entered into agreement dated 21.11.2002 on the conditions that the plaintiff shall surrender vacant possession of suit schedule 'A' property to the defendant for the purpose of construction of new building and the defendant within one year had to put up new construction and had to deliver the vacant possession i.e. suit schedule 'B' property to the plaintiff. But, the defendant as agreed by him as per the terms of Ex.P1 dt. 21.11.2002 could not complete the construction of new building, but he completed the building in the month of December 2005 and intimated to the plaintiff in writing as per Ex.D6 to occupy any portion in the newly constructed building, but the plaintiff did not come forward to occupy any portion in the newly constructed building and the plaintiff has come with this suit seeking 29 O.S.25340/2008 relief of mandatory injunction directing the defendant to hand over vacant possession of 'B' schedule property to the plaintiff and to direct the defendant to pay damages of Rs.1,44,000/- till filing of the suit and damages of Rs.15,000/- per month from the date of suit till the date of surrendering the suit property. But, the defendant has contended that the suit for mandatory injunction without seeking specific performance of agreement is not maintainable.
21. As per the terms and conditions incorporated in the agreement dated 21.11.2002, the defendant had to deliver the vacant possession of schedule 'B' property to the plaintiff with in 1 year by constructing a new building. Accordingly, he had intimated the plaintiff as per Ex.D6, but plaintiff did not occupy any portion in the newly constructed building. Therefore, the plaintiff after lapse of 6 years from the date of execution of agreement dt.21.11.2002 has come up with the present suit for mandatory injunction. When such being the terms and 30 O.S.25340/2008 conditions incorporated in the agreement dated 21.11.2002 the plaintiff is not supposed to seek specific performance of agreement. But as per agreement dated 21.11.2002 , he was entitled for possession of suit schedule 'B' property in the newly constructed building, but he has failed to occupy any portion in the newly constructed building. Even though the defendant intimated the plaintiff as per ExD6 calling upon the plaintiff to occupy any portion in the newly constructed building. Under such circumstances, the contention of the defendant that the suit for mandatory injunction without seeking the relief of specific performance of agreement is not maintainable, holds no water. Hence, I answer the issue No.10 in the negative.
22. Issue No.11: The defendant by filing W.S. has claimed counter claim and sought for damages of Rs.15,000/- per month against the plaintiff from 1.1.2006 to 19.12.2007 amounting to Rs.3,12,000/- on the ground that as per the terms and conditions of the agreement dt.21.11.2002 the defendant called upon the 31 O.S.25340/2008 plaintiff by giving notice to the plaintiff as per Ex.D.6to occupy any portion in the newly constructed building but the plaintiff did not turned up and not occupied any portion in the newly constructed building. Therefore, the defendant waited for 2 years for the plaintiff to occupy any portion in the newly constructed building. In spite of it the plaintiff did not come forward and not occupied any portion in the newly constructed building. Therefore, the defendant suffered loss to an extent of Rs.13,000/- p.m. totally amounting to Rs.3,12,000/- Therefore, the defendant claimed counter claim claimed by way of damages of Rs.3,12,000/- against the plaintiff from 1.1.2006 to 9.12.2007. But the defendant has not at all produced any material document to show that he had waited for a period of two years for the plaintiff to occupy any portion in the newly constructed building except issuing Ex.D6 the notice in writing to the plaintiff calling upon the plaintiff to occupy any portion in the newly constructed building dated 30.12.2005. But, admittedly the plaintiff has failed to occupy any portion 32 O.S.25340/2008 in the newly constructed building in spite of receipt Ex.D6 Notice. In view of the defendant has failed to produce any document to show that he had waited for 2 years from the date of issuance of Ex.D6 for the plaintiff to occupy any portion in the newly constructed building by the plaintiff and admittedly the defendant had let out a portion measuring 10 x 10 ft. in the newly constructed building to some other tenant. In the absence of production of any document to show that defendant had waited for 2 years for the plaintiff to occupy any portion in the newly constructed building i.e. from 1.1.2006 to 9.12.2007 it cannot be said that the defendant has sustained loss to an extent of Rs.3,12,000/- for the said period. Therefore, I am of the considered view that the defendant is not entitled to damages of Rs.13,000/- p.m. against the plaintiff from 1.1.2006 till 9.12.2007 amounting to Rs.3,12,000/- Hence, I answer Issue No.11 in the Negative.
33 O.S.25340/2008
23. Issue No.12: In view of my findings on the above issues I proceed to pass the following :
ORDER The suit of the plaintiff is dismissed. No order as to costs. Draw decree accordingly.
(Dictated to the Judgment writer transcribed by her, then corrected and pronounced by me in the open court this the 19th day of February 2016) (B.Narayanappa) XIII Addl.CCJ, Mayohall, Bangalore.
SCHEDULE-A Premises bearing No.52, Jyothi Building, K.V.temple street, 1st cross, Manavarthpet, Bangalore 53 bounded on:
East by : Road West by : Private property North by: Road South by Private property Schedule B Newly built shop in premises bearing No.52, Jyothi building, K.V.Temple street, 1st cross, Manavarthpet, 34 O.S.25340/2008 Bangalore 53, measuring East to West 14' and North to South 10' facing K.V.temple street which was to be given to the plaintiff as per the agreement entered into between the plaintiff and defendant.
ANNEXURE List of witnesses examined for the plaintiff's side.
PW1: C.S.Nagaraj PW2: S.Sathyanarayan Pw3: K.G.Shankar List of witnesses examined for the defendant side:
DW1 : N.Sundar List of documents exhibited for the plaintiff's side:
Ex.P1: Surrender of lease agreement Ex.P2: Invitation card Ex.P3 to 12: photos Ex.p14: legal notice.
List of document exhibited on the side of defendant.
Ex.D1: agreement of lease Ex.D 2 to 5 Photos Ex,.D6: Legal notice.
(B.Narayanappa) XIII Addl.CCJ, Mayohall, Bangalore.35 O.S.25340/2008
19.2.2016 Judgement pronounced in the open court [vide separate detailed judgement] The suit of the plaintiff is dismissed. No order as to costs.
Draw decree accordingly.
XIII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL
UNIT, BANGALORE.
36 O.S.25340/2008