Bangalore District Court
Hydro Products vs Micro Polymers on 31 July, 2024
KABC170016612023
IN THE COURT OF LXXXIII ADDL. CITY CIVIL & SESSIONS JUDGE,
COMMERCIAL COURT, BENGALURU (CCH-84)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
LXXXIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
COM.OS.No.3838/2018
Dated on this 31st day of July 2024
Plaintiff M/s. Hydro Products,
by its Proprietor,
Haridas Pottath,
#B184, 4th Main, II Stage,
Peenya Industrial Estate, Peenya,
Bengaluru-560058.
(By Sri.Rangaswamy .S, Advocate)
// versus //
Defendants 1. M/s. Micro Polymers,
A registered Partnership Firm,
having its place of office at:
#B184, 4th Main, II Stage,
Peenya Industrial Estate, Peenya,
Bengaluru-560058.
Represented by its partners:
Sri. R. Malleshappa and
Sri. N.R.Dinesh.
2. Sri. R. Malleshappa
S/o K.H.Rangappa,
Aged about 40 years.
3. Sri.N.R.Dinesh,
S/o. Revanasiddappa,
2
CT 1390_Com.OS.3838-2018_Judgment.doc
KABC170016612023
Aged about 38 years.
Both defendants 2 and 3 above are at:
B-184, 4th Main, II Stage,
Peenya Industrial Estate, Peenya,
Bengaluru-560058.
(D1 to D3 by Sri.K.G.Sadashivaiah,
Advocate)
Date of Institution of suit : 01/06/2018
Nature of the suit : Ejectment
Date of commencement of : 12/12/2019
recording of the evidence
Date on which the : 31/07/2024
Judgment was pronounced.
: Year Month/ Day/s
Total duration /s s
06 02 00
JUDGMENT
This is a suit filed by plaintiff which is a proprietorship concern represented by its proprietor against defendant No. 1 to 3 of which defendant No. 1 is partnership firm and defendant No. 2 and 3 are its partners, for ejectment and damages / mesne profits.
2. The plaint averments in brief are that, the plaintiff is the absolute owner of the composite property measuring 5,000 square feet and out of the said 5,000 square feet, an extent of 3 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 3,500 square feet [Suit Schedule Property] has been leased out by the plaintiff to the defendants on 1-06-2010 by receiving advance amount of Rs. 5,00,000 and on monthly rent of Rs. 35,000. Although the defendants were inducted with effect from 1-06-2010, no written lease deed was entered into between the parties. The defendants paid the monthly rent for June 2010 by way of cheque dated 14-09-2010. Thereafter the defendants have not paid rent for the succeeding months. This prompted the plaintiff to cause legal notice terminating the tenancy dated 2-6-2011 which was replied to by the defendants under reply dated 5-7-2011. In the meantime, the defendants entered into unregistered sale agreement with the plaintiff dated 26-3-2011 for purchasing the Composite Property measuring 5,000 square feet for total sale consideration of Rs. 1,31,00,000 and paid Rs. 34,00,000 as advance sale consideration amount, under the said sale agreement. However, the defendants failed to get the sale deed registered within the prescribed period i.e., before 15- 04-2011 and therefore, according to the plaintiff, the said sale agreement has been terminated. For specific performance of the said sale agreement and since the sale agreement 4 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 contained arbitration clause, the defendants initiated arbitration and the learned sole arbitrator has passed award dated 23-06-2015 refusing the relief of specific performance but ordering for refund of advance amount of Rs. 34 Lakhs, along with interest. Challenging the said arbitral award, the defendants had filed AS-119 of 2015 which has been disposed off, by modifying the award only in so far as date from which interest is payable but confirming the refusal of specific performance. Since the defendants have not vacated the premises in terms of the termination notice dated 02-06- 2011, the plaintiff issued reminder dated 28-12-2015 but till date the defendants have not vacated the premises. With these pleadings, contending that the possession of the defendants is unlawful since the tenancy of the defendants has already been terminated, the suit is filed for relief of ejectment of the defendants from the suit schedule property and for damages at the rate of Rs. 1,49,590 from date of suit till date of handing over vacant possession.
3. The suit schedule property is described as follows; 5
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 All that piece and parcel of 3,500 square feet of industrial shed bearing No. B-184 situated at 4th Main, 2nd Stage, Peenya Industrial Estate, Peenya, Bangalore 560058, out of total extent of 5,000 square feet bounded as follows;
North by property No. B-183, South by service road, East by 4th Main Road, West by remaining portion of the plaintiff.
4. In response to the suit summons, the defendants have entered appearance through counsel and filed detailed written statement denying the plaint averments. It is contended that the defendants have challenged the judgment in A.S. 119 of 2015 in MFA 3425 of 2018 and thereby it is contended that till adjudication of rights of the parties in the said MFA, the plaintiff is not entitled to seek eviction of the defendants. The defendants denied the jural relationship of landlord and tenant between the plaintiff and defendants on the ground that, they are in possession under the sale agreement having paid huge advance amount of Rs. 39 lakhs [which includes Rs. 5 lakhs paid as advance at the time of being inducted as tenants]. The defendants denied termination of tenancy on the 6 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 ground that, although the original notice allegedly terminating the tenancy was issued on 2-6-2011, the same has not been acted upon and therefore seeking ejectment at this point of time is barred by limitation. Insofar as relief of damages / mesne profits is concerned, it was contended that the plaintiff cannot claim either rent or mesne profits since plaintiff is holding on to huge advance amount paid under the sale agreement without paying any interest thereon. Apart from this, it is contended that out of the total extent of 5000 sqft of Suit Schedule property, the plaintiff is in possession of 1500 sqft and is utilizing the electricity from the common electricity meter for which the electricity bills are being paid by the defendants and therefore if the charges towards electricity consumption of the plaintiff's portion is deducted, then the plaintiff will not be entitled to any rent or mesne profits. Certain other contentions were raised in relation to the sale agreement and contending that, it was the plaintiff who was at fault in not coming forward to execute the sale deed, although the defendants were ready and willing to perform their part of the contract. It was contended that, in any event, the plaintiff is not justified in claiming that 7 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 advance amount of Rs. 5 lakhs is adjusted towards rental dues. With these contentions, the defendants prayed for dismissal of the suit.
5. On the basis of the above pleadings, my Learned Predecessor has framed the following issues;
1) Whether the plaintiff proves that the jural relationship of landlord and tenant is existed between him and the defendants?
2) Whether the plaintiff proves that jural relationship of landlord and tenant is legally terminated by way of quit notice dated 2-6- 2011?
3) Whether the plaintiff proves that defendants are liable to pay damages at the rate of Rs. 1,49,590 per month from 1-6-2018 up to the date of actual payment and also for 20% of enhanced amount per annum after every 12 months till handing over of possession?
4) Whether the defendant proves that there is no relationship of landlord and tenant between plaintiff and defendant?
5) Whether the defendant proves that on execution of agreement of sale in respect of the suit premises, the tenancy is terminated?
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CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023
6) Whether the defendant proves that plaintiff has executed an agreement of sale in favour of the defendant by receiving the sum of Rs. 39 lakhs and plaintiff has not executed sale deed?
7) Whether the defendant proves that defendant is in lawful possession of suit premises?
8) Whether the plaintiff is entitled for the reliefs as prayed?
9) What order or decree?
6. In the trial, the proprietor of the plaintiff is examined as PW1 and got marked Ex. P1 to P11. On behalf of the defendants, Defendant No. 3 is examined as DW1 and got marked Ex. D1 to D4. In his cross-examination, Ex. P12 to 16 are got marked by confronting to DW1.
7. To complete the narration of facts, it is to be noted that, at the stage of cross-examination of DW1 on 8-02-2023, Counsel for Plaintiff filed IA under Section 151 of CPC for direction to the defendants to deposit arrears of lease rentals and / or damages of Rs. 1,89,74,852, failing which to strike off the defence of the defendants. My Learned predecessor rejected the said application by orders dated 12-04-2023. 9
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 Aggrieved by the rejection of the said application, the plaintiff challenged the said orders before Hon'ble High Court of Karnataka in WP 25332 of 2023 and said WP was disposed off as withdrawn by orders dated 21-02-2024 and in the said order, Hon'ble High Court has directed the trial court to dispose off the present suit on merits as expeditiously as possible and at any rate within four months from the date of receipt of order copy. The said order copy was received by this court on 23-04-2024 and therefore the four-months period fixed by Hon'ble High Court of Karnataka expires on 23-08- 2024.
8. I have heard the arguments of both sides and perused the records of the case. In addition, after the matter is reserved for judgment, both sides have filed written arguments. The Counsel for Plaintiff has filed written arguments on 27-07-2024. The Counsel for Defendants has filed written arguments today, i.e. on 31-07-2024 and I have perused the written arguments filed by both sides.
9. My answer to the Issues are as follows;
Issue No. 1 and 2 : In the affirmative.
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CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 Issue No. 3 : As per finding.
Issue No. 4 and 5 : In the negative.
Issue No. 6 : Does not arise for consideration. Issue No. 7 : In the negative.
Issue No. 8 : As per finding.
Issue No. 9 : As per final order for the following :-
REASONS Issue No. 1, 4 & 5 :-
10. All these issues are interconnected because they deal with the question of existence or otherwise of jural relationship of landlord and tenant between the parties on the basis of contention of the defendants that the tenancy terminated immediately on execution of the sale agreement between the parties and therefore, the defendants are in possession of the Suit Schedule property as agreement holders and not as the tenants of the plaintiff and therefore all these issues are considered together.
11. The case of the plaintiff is that, the plaintiff is the absolute owner of the composite property measuring 5,000 square feet and out of the said 5,000 square feet, an extent of 3,500 square feet [Suit Schedule Property] has been leased 11 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 out by the plaintiff to the defendants on 1-06-2010 by receiving advance amount of Rs. 5,00,000 and on monthly rent of Rs. 35,000. Although the defendants were inducted with effect from 1-06-2010, no written lease deed was entered into between the parties. The defendants paid the monthly rent for June 2010 by way of cheque dated 14-09-2010. Thereafter the defendants have not paid rent for the succeeding months. This prompted the plaintiff to cause legal notice terminating the tenancy dated 2-6-2011 which was replied to by the defendants under reply dated 5-7-2011. In the meantime, the defendants entered into unregistered sale agreement with the plaintiff dated 26-3-2011 for purchasing the Composite Property measuring 5,000 square feet for total sale consideration of Rs. 1,31,00,000 and paid Rs. 34,00,000 as advance sale consideration amount, under the said sale agreement. However, the defendants failed to get the sale deed registered within the prescribed period i.e., before 15- 04-2011 and therefore, according to the plaintiff, the said sale agreement has been terminated. For specific performance of the said sale agreement and since the sale agreement contained arbitration clause, the defendants initiated 12 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 arbitration and the learned sole arbitrator has passed award dated 23-06-2015 refusing the relief of specific performance but ordering for refund of advance amount of Rs. 34 Lakhs, along with interest. Challenging the said arbitral award, the defendants had filed AS-119 of 2015 which has been disposed off, by modifying the award only in so far as date from which interest is payable but confirming the refusal of specific performance. Since the defendants have not vacated the premises in terms of the termination notice dated 02-06- 2011, the plaintiff issued reminder dated 28-12-2015 but till date the defendants have not vacated the premises. With these pleadings, contending that the possession of the defendants is unlawful since the tenancy of the defendants has already been terminated, the suit is filed for relief of ejectment of the defendants from the suit schedule property and for damages at the rate of Rs. 1,49,590 from date of suit till date of handing over vacant possession.
12. In support of its case, the plaintiff has examined its proprietor as PW1 and got marked Ex. P1 to 11 in his chief examination and in addition in the cross-examination of DW1 13 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 on behalf of the plaintiff, Ex. P12 to 16 are marked by confronting to DW1.
13. Ex. P1 is the legal notice dated 29-08-2012 issued by the defendants initiating arbitration in respect of disputes arising under the sale agreement between the parties. Ex. P2 is legal notice dated 28-12-2015 caused by the plaintiff to the defendants which is the reminder to the earlier legal notice terminating the tenancy dated 02-06-2011. Ex. P3 and 4 are the postal documents in respect of issuance of Ex. P2. Ex. P5 is the arbitration award passed by the Learned Sole Arbitrator refusing relief of specific performance to the defendants herein, but, directing the plaintiff herein to refund advance amount of Rs. 34 lakhs along with interest. Ex. P6 is the original deed of dissolution of partnership firm under which the proprietor of plaintiff has acquired title to the Suit Schedule property. Ex. P7 to Ex. P9 are the revenue records to show that the khata of Suit Schedule property is standing in the name of the plaintiff. Ex. P10 is the rejoinder dated 02- 06-2011 issued on behalf of the plaintiff. Ex. P11 is certified copy of judgment in AS-119 of 2015 modifying the arbitral 14 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 award at Ex. P5 only in respect of date from which interest has to be paid on the advance amount to be refunded by the plaintiff herein. Ex. P12 to 16 are marked in the cross- examination of DW-1 by confronting to him. Ex. P12 is the office copy of letter caused by plaintiff to the defendants enclosing three cheques towards refund of the advance amount as per the arbitral award as modified in AS-119 of 2015. Ex. P13 to P15 are the three cheques which were enclosed with the letter at Ex. P12. Ex. P16 is the reply issued by defendants returning the said cheques on the ground that the amount sent under the cheques are not in consonance with the judicial order.
14. Per contra, the case of the defendants is denial of plaint averments and contending that, the defendants have challenged the judgment in A.S. 119 of 2015 in MFA 3425 of 2018 and thereby it is contended that till adjudication of rights of the parties in the said MFA, the plaintiff is not entitled to seek eviction of the defendants. The defendants have denied the jural relationship of landlord and tenant between the plaintiff and defendants on the ground that, they 15 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 are in possession under the sale agreement having paid huge advance amount of Rs. 39 lakhs [which includes Rs. 5 lakhs paid as advance at the time of being inducted as tenants]. The defendants have denied termination of tenancy on the ground that, although the original notice allegedly terminating the tenancy was issued on 2-6-2011, the same has not been acted upon and therefore seeking ejectment at this point of time is barred by limitation. Insofar as relief of damages / mesne profits is concerned, it was contended that the plaintiff cannot claim either rent or mesne profits since plaintiff is holding on to huge advance amount paid under the sale agreement without paying any interest thereon. Apart from this, it is contended that out of the total extent of 5000 sqft of Suit Schedule property, the plaintiff is in possession of 1500 sqft and is utilizing the electricity from the common electricity meter for which the electricity bills are being paid by the defendants and therefore if the charges towards electricity consumption of the plaintiff's portion is deducted, then the plaintiff will not be entitled to any rent or mesne profits. Certain other contentions are raised in the Written Statement in relation to the sale agreement and contending that, it was 16 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 the plaintiff who was at fault in not coming forward to execute the sale deed, although the defendants were ready and willing to perform their part of the contract. It was contended that, in any event, the plaintiff is not justified in claiming that advance amount of Rs. 5 lakhs is adjusted towards rental dues. With these contentions, the defendants prayed for dismissal of the suit.
15. In support of their case, the defendants have examined Defendant No. 3 as DW-1 and got marked Ex. D1-D4. Ex. D1 is a document drawn up in the letterhead of the plaintiff and it records the terms on which the suit schedule premises was let out to the defendants. Ex. D2 are the electricity bills in respect to the suit schedule premises of the period 2021-22. Ex. D3 is a calculation by the defendants in respect of interest payable on excess rental advance amount. Ex. D4 is a receipt issued by BWSSB collecting fees for providing copy of ledger extract along with the information provided by BWSSB in respect of the water bills paid in respect of suit schedule premises.
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16. Having considered the rival cases set up by both sides and the oral and documentary evidence on record, at the outset, this court is called upon to consider the question whether there is jural relationship of landlord and tenant between the plaintiff and defendants. In this regard, it is to be noted that, there is absolutely no dispute that plaintiff is the absolute owner of the composite property measuring 5000 square feet of which suit schedule premises is a portion measuring 3500 square feet. The ownership of the plaintiff over suit schedule property is not disputed by the defendants and on the other hand, the defendants contend that the plaintiff as absolute owner has executed sale agreement agreeing to sell the composite property in favour of the defendants and it is for specific performance of the said sale agreement that arbitration proceedings which culminated in the passing of the arbitral award at Ex. P5 was initiated by the defendants. Therefore, since the defendants claim that plaintiff as absolute owner executed sale agreement in favour of the defendants, it is clear that the defendants do not dispute that the plaintiff is the original owner of suit schedule property. Even otherwise, the plaintiff has produced deed of 18 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 dissolution of partnership firm dated 5-3-1993 at Ex. P6 which shows that under the said deed of dissolution, the suit schedule property was allotted to the share of plaintiff. The plaintiff has also produced katha certificate at Ex. P7 which reflects that the katha of suit schedule property is standing in the name of the plaintiff. Similarly, the tax demand extract at Ex. P8 and tax paid receipt at Ex. P9 are also produced which also shows that the revenue records of suit schedule property are standing in the name of the plaintiff. On this basis, there cannot be any doubt that plaintiff is admittedly the original owner of suit schedule property. It is the specific case of the plaintiff that, the plaintiff inducted the defendants as the tenants of suit schedule property with effect from 1-6- 2010 by receiving advance amount of Rs 5,00,000 and on monthly rent of Rs 35,000. Even in this regard, there is no serious dispute because the defendants admit that they were originally inducted into the suit schedule property as the tenants. This is admitted by the defendants at paragraph 5 of written statement by pleading as follows;
"Originally the defendants entered the premises as lessees and later on by virtue of agreement of 19 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 sale executed in favour of defendants, the tenancy was terminated."
17. Therefore, the defendants also do not dispute that their original entry into suit schedule property was as the tenants. The only contention of the defendants is that, subsequently, the plaintiff executed sale agreement agreeing to sell the suit schedule property in favour of the defendants and in view of execution of the sale agreement, the jural relationship has come to an end and the defendants are in possession as agreement holders and not as the tenants. DW 1 in his cross examination has also admitted at paragraph 2 as follows;
"We have occupied the schedule premises in June 2010. We have declared the schedule premises as our place of business for all correspondence and statutory requirements. We have paid Rs. 5 lakhs as security deposit to the plaintiff and agreed to pay monthly rent at Rs. 33,000 in respect of the schedule premises. There is no written rental agreement with the plaintiff. The plaintiff has reduced the terms of lease in his letter head."
(Emphasis Supplied)
18. Further, DW 1 has produced the said later head under which the terms of the lease was reduced into writing at Ex.D1 which also shows that the original entry of the 20 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 defendants into suit schedule property was as the tenants. Therefore, it follows that, firstly, there is no dispute that plaintiff is absolute owner of suit schedule property. Secondly, there is no dispute that the plaintiff initially inducted the defendants into suit schedule property as the tenants in June 2010.
19. The only contention of the defendants to dispute jural relationship of landlord and tenant between the parties is that subsequently the plaintiff executed sale agreement and in view of the execution of the sale agreement and receiving of advance amount by the plaintiff, the tenancy has come to an end and the defendants are in possession of the property as agreement holders and not as the tenants. In this regard, it is to be noted that, in the Plaint itself, there is an admission by the plaintiff that sale agreement was executed by the plaintiff agreeing to sell the composite property measuring 5000 sq. ft. to the defendants for total sale consideration of Rs. 1,31,00,000 under sale agreement dated 26-03-2011 and under the said sale agreement, plaintiff has received advance amount of Rs. 34,00,000. Be it 21 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 noted that, there is a slight dispute between the parties regarding advance amount because according to the plaintiff, the advance amount received was Rs. 34,00,000 whereas according to the defendants, the advance amount paid was Rs. 39,00,000. However, this dispute can be reconciled by taking note of the fact that, the defendants include the advance amount of Rs. 5,00,000 paid at the time of taking Property on lease and on that basis, claim that advance sale consideration amount paid under the sale agreement was Rs. 39,00,000. Anyhow, this dispute is not relevant for the purpose of the present suit since the question of specific performance of the said sale agreement is subject matter of the arbitration proceedings. Anyhow, it is admitted fact between the parties that, for specific performance of the said sale agreement, the defendants invoked arbitration which culminated in the arbitration award at Ex. P5 under which the relief of specific performance was refused but alternative relief of refund of advance amount of Rs. 34,00,000 along with interest was granted. The said arbitral award was challenged by the defendants in AS 119 of 2015 and by judgment dated 18-01-2018 which is at Ex.P 11, the arbitral 22 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 award was modified by confirming the refusal of relief of specific performance but holding that interest on refund of advance amount of Rs. 34,00,000 shall be payable from 15- 04-2011 as against the finding of the arbitral tribunal to pay interest from 11-01-2012. Admittedly, the judgment in said AS 119 of 2015 is under challenge before the Hon'ble High Court of Karnataka in MFA 3425 of 2018 which is pending and therefore, one of the contentions of defendants in the written arguments filed today is that, till disposal of said MFA and till the question of specific performance is finally decided by Hon'ble High Court, this suit should be kept pending.
20. In this background, the question which arises is whether in view of the admitted fact of execution of sale agreement by plaintiff in favour of the defendants in respect of the same property dated 26-03-2011, whether it can be held that the jural relationship of landlord and tenant between the parties came to an end. This contention of defendants cannot be accepted for more than one reason. Firstly, as noted supra, admittedly the initial entry of defendants into Suit Schedule premises was as the tenants 23 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 with effect from 1-06-2010. The question is whether by mere execution of sale agreement by the landlord in favour of the tenants, the status of the tenants' possession over the demised property / tenanted property will change. This question has to be answered in the negative because the law is settled that, mere execution of sale agreement will not amount to transfer of any interest in immovable property. This is clear from section 54 of the Transfer of Property Act, which is as follows;
54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.-- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
(Emphasis Supplied) 24 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023
21. In this regard reference may also be made to law laid down by Hon'ble Apex Court in the case of K. Basavarajappa v. Tax Recovery Commr., (1996) 11 SCC 632, wherein at Paragraph 8, it is observed that, "It is axiomatic that mere agreement to sell creates no legal interest or right in the property which is the subject-matter of the agreement".
22. Therefore, when the sale agreement does not amount to transfer of any interest in the immovable property, it follows that, by mere execution of sale agreement, the status of the tenants in the suit schedule premises will not change and the possession of the tenants will not get converted from possession as tenants to possession as agreement holders.
23. Even section 53A of the Transfer of Property Act will not come to the aid of the defendants in the present case, because, even for the sake of argument, if it is conceded that, defendants have always been ready and willing to perform their part of the contract [although, this is properly considered the subject matter of arbitration proceedings and has been 25 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 negated by the Arbitral Award at Ex. P5 duly confirmed by judgment in A.S. 119 of 2015 at Ex. P11], the fact remains that in order to claim protection under section 53A of the Transfer of Property Act, it should be shown that the defendants acquired possession under a registered sale agreement. This is because by The Registration And Other Related Laws (Amendment) Act, 2001, Act 48 of 2001, Section 17 (1A) has been inserted in The Registration Act as follows;
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
(Emphasis Supplied)
24. Therefore, after the Amendment Act of 2001, the position is that, for claiming protection under section 53A of the Transfer of Property Act, it is necessary to show that the possession was acquired under registered sale agreement and a person who claims to be in possession of an immovable 26 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 property under unregistered document cannot claim the protection of section 53A of the Transfer of Property Act, even if he proves his readiness and willingness to perform his part of the contract. In this regard, it is relevant to refer to the observations of Hon'ble Delhi High Court in the case of Joginder Tuli v State Nct of Delhi and Others in W.P. (CRL) 1006/2020 and CRL.M.A. 8649/2020 Decided on January 17, 2022 reported in 2022 SCC OnLine Del 146, as follows;
33. It is well settled that in order to give benefits of Section 53A of the Transfer of Property Act, the document relied upon must be a registered document. Any unregistered document cannot be looked into by the court and cannot be relied upon on or taken into evidence in view of Section 17(1A) read with Section 49 of the Registration Act. Thus, benefit of Section 53A could have been given to the respondent, if and only if the alleged Agreement to Sell cum receipt satisfied the provisions of Section 17(1) A of the Registration Act (Refer Arun Kumar Tandon v. Akash Telecom Pvt. Ltd., 2010 SCC OnLine Del 918).
34. Even assuming that the MoU should be read as an Agreement to Sell and the petitioner has been in possession for which there is no evidence at all, this Court in Earthtech Enterprises Ltd. v. Kuljit Singh Butalia, (2013) 199 DLT 194 has observed as under:--
"12. A bare perusal of the aforesaid provision makes it clear that a person can protect his 27 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 possession under Section 53-A of the Transfer of Property Act on the plea o part performance only if it is armed with a registered document. Even on the basis of a written agreement he cannot protect his possession. In this case, plea of existing oral agreement has been set. In any event, in this case, appellant cannot protect his possession under the shield of Section 53-A of the Transfer of Property Act. Even otherwise, mere Agreement to Sell of an immovable property, even if the plea of oral agreement is accepted for the sake of argument, would not create any right in favour of the tenant-appellant to hold over the possession of the suit property."
(Emphasis Supplied)
25. Therefore, the position which emerges is that, by execution of unregistered sale agreement by the plaintiff in favour of the defendants, the nature of possession of defendants over the Suit Schedule premises did not undergo a change. The defendants were inducted into Suit Schedule premises in June 2010 as the tenants and since, mere sale agreement does not transfer / create any interest in immovable property in favour of the agreement holder, the status of defendants continues to be that of the tenants. Therefore, once it is admitted that, initial entry of the defendants into Suit Schedule premises was as tenants, it follows that, their status till date has continued to be that of 28 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 the tenants. Therefore, the defendants having entered into possession of Suit Schedule premises as the tenants of plaintiff cannot now turn around and deny jural relationship between the parties. Accordingly, I answer issue No. 1 in the affirmative and Issue No. 4 in the negative holding that plaintiff has proved jural relationship of landlord and tenant between the plaintiff and defendants in respect of the suit schedule premises.
26. Turning to Issue No. 5, I have already held supra that, the execution of the unregistered sale agreement by the plaintiff in favor of the defendants did not have any effect on the status of the defendants insofar as their possession over the suit schedule property is concerned and the defendants continued in possession of the suit schedule property as the tenants despite execution of the said sale agreement. Therefore, it follows that the tenancy of the defendants did not terminate merely due to execution of the sale agreement.
27. Further, it is to be noted that, the circumstances in which lease is determined is laid down by section 111 of the Transfer of Property Act as follows;
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111. Determination of lease.--A lease of immovable property, determines--
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event--by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; [***]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. Illustration to clause (f) A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.
(Emphasis Supplied) 30 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023
28. In the case on hand, none of the circumstances for determination of lease as provided under section 111 of TP Act are attracted, merely by execution of the sale agreement. As already noted Supra, mere sale agreement does not create or transfer any interest in immovable property. Therefore, the same does not amount to termination of interest of the lessor over the property or vesting of the interest of lessee or lessor in same person at same time. Therefore, clause C and D of section 111 is not attracted. Clause A and B are certainly not attracted because by mere execution of sale agreement, the lease will not be determined by efflux of time. There is also no express or implied surrender of lease, by mere execution of the sale agreement and in any event, the said sale agreement is not produced and got marked to show that there was any recital in the said sale agreement that, merely by execution of the same, there is express or implied surrender of the lease. Therefore, clause E and F of section 111 are also not attracted. There is also no forfeiture because the lessee has never set up title in third person or in himself, but lessee is merely claiming execution of sale agreement by the lessor. Therefore, I hold that viewed from any angle, execution of the 31 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 sale agreement will not amount to termination of the lease and accordingly I answer issue No. 5 in the negative. Issue No. 2 & 7 :-
29. Having answered issue No. 1 as above holding that the plaintiff has proved jural relationship of landlord and tenant between the parties in respect of suit schedule premises, the next question to be decided is whether the plaintiff has proved due termination of the tenancy of the defendants. In this regard, it is the case of the plaintiff at paragraph 10 of the Plaint that the tenancy of the defendants in respect of suit schedule premises has been terminated by legal notice dated 2-6-2011. This legal notice dated 2-6-2011 is produced and marked as Ex. P-10. However, on perusal of the contents of the same, it is clear that, it is in fact a rejoinder issued to reply of the defendants and it is not a notice terminating the tenancy. However, this is not fatal to the plaintiff's case because the plaintiff has pleaded that, another notice styled as a reminder was issued dated 28-12-2015, again, terminating the tenancy. The said notice [styled as a reminder] caused by the plaintiff to the defendants is marked 32 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 as Ex. P-2. In the penultimate paragraph of Ex. P-2, it is stated as follows;
"Therefore, you are hereby called upon to vacate the industrial shed and pay the arrears of monthly rents as well as damages/ mesne profits as stated herein above on or before expiry of two weeks from the date of receipt of this reminder, failing which, we have instructions from our client to proceed against you legally before the competent court of law under the relevant provisions of TP Act and to get you evicted from the leased industrial shed and vacant possession thereof delivered to our client."
(Emphasis Supplied)
30. No doubt, under Section 106 of TP Act, leases for agricultural and manufacturing purposes are terminable by six months' notice and leases for other purposes terminable by 15 days' notice. In the case on hand, although, in the above notice at Ex. P-2, only two weeks' time is granted to vacate the premises, the fact remains that, the suit is filed much after 15 days and much after six months. Anyhow, even considering that suit schedule premises is industrial shed and assuming that the lease was for manufacturing purpose, the defendants are not entitled to six months' notice for termination because they are the lessees under unregistered document. In this regard, reference may be 33 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 made to the law laid down by Hon'ble High Court of Karnataka in the case of G. Kusuma Devi v. Gowramma, 2006 SCC OnLine Kar 456 : AIR 2006 Kar 295 : (2006) 6 Kant LJ 120 : (2006) 5 AIR Kant R 478 : (2007) 2 ICC 516 : (2007) 1 All LJ (NOC 94) 30 : 2006 AIHC 3499 : (2007) 1 CCC 28 at page 300, as follows;
18. It is clear from plain language of Section 107 of the Transfer of Property Act that the lease of immovable property for any term exceeding one year can be made only by registered instrument. In the absence of registered instrument, the lease must be a monthly lease and not yearly lease or a lease beyond one year. In this case also, as the lease is for a period beyond one year and as the same is created by unregistered instrument, it shall have to be construed only as monthly lease and not yearly lease or a lease beyond one year and therefore, the termination of lease would be only by giving 15 days quit notice under S. 106 of the T.P. Act. It is not in dispute that quit notice is issued under S. 106 of the T.P. Act by the plaintiffs calling upon the defendant-lessee to quit and vacate the premises, in this matter.
(Emphasis Supplied)
31. In the light of the above law, it is clear that, even considering that the lease is for manufacturing purposes, since defendants were inducted as lessees under unregistered document [Ex.D 1], defendants cannot claim six months' 34 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 termination period and the lease of the defendants is terminable by 15 days' period. In the case on hand, under the notice at Ex. P-2, two weeks was given and admittedly, the suit is filed nearly three years after the said notice. Further, it is to be noted that, due service of the legal notice at Ex. P-2 is admitted in the written statement. In this regard, it is to be noted that, said reminder notice dated 28-12-2015 is pleaded at paragraph 13 of the plaint. The said paragraph of the plaint is traversed at paragraph 12 of written statement as follows;
"The averments made in paragraph 12-14 of the plaint that defendants are liable to pay damages in respect of usage of the premises is an imaginary claim of the plaintiff. As such, there is no tenancy in existence between the plaintiff and defendants and the alleged termination is an invalid termination and the same is on imaginary facts of creating a cause of action to file a suit. It may be noted here that Defendants have already replied to the legal notice the question of paying damages contrary to oral promise simply do not arise. It may be mentioned here that defendants are not liable to pay neither the damages nor enhanced alleged rents as claimed."
(Emphasis Supplied)
32. Therefore, while traversing paragraph 13 of the plaint, it is the categorical contention of the defendants that, they 35 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 have replied to the said legal notice i.e. the reminder dated 28-12-2015. Such being the case, it follows that Defendants admit due service of the notice at Ex. P2. Even otherwise, the plaintiff has produced and got marked the RPAD receipt and RPAD acknowledgement card at Ex. P3 and 4 in respect of issuance of Ex. P2, which is not disputed in cross- examination of PW1.
33. Therefore, from the above discussion, what emerges is that, the plaintiff has proved that plaintiff has caused legal notice dated 28-12-2015 terminating the tenancy and the service of said legal notice on defendants is admitted in written statement and even otherwise the service of legal notice is duly proved by the postal documents at Ex. P3 and P4. No doubt, there is a slight defect in the said legal notice in that only two weeks notice period is given, whereas Section 106 of TP Act requires 15 days notice. However, suit is admittedly filed much after 15 days and in fact after nearly 3 years from the date of said legal notice and therefore I hold that the tenancy of the defendants has been duly terminated by the plaintiff.
36
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023
34. One contention raised in the written statement of defendants is that since suit was not filed soon after said notice, suit filed in 2018 is barred by limitation. This contention cannot be accepted because as per article 67 of Schedule of Limitation Act, period of limitation for suit by landlord to recover possession from tenant is 12 years from the date on which tenancy is determined. The present suit is filed within 12 years from date of termination of tenancy and therefore suit is filed within the period of limitation. Accordingly, I answer issue no. 2 in the affirmative holding that plaintiff has duly terminated the tenancy of the defendants in respect of suit schedule premises and therefore plaintiff is entitled to relief of ejectment of the defendants from the suit schedule premises. Consequently, issue No. 7 is answered in the negative holding that since the tenancy of the defendants has been duly terminated, the possession of the defendants over the suit schedule premises is not lawful possession.
35. Before parting with this point, one contention raised by Learned Counsel for defendants in the written arguments 37 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 may be noted. It is contended in the written arguments filed today by the defendants that, present suit for ejectment is not maintainable as there is conflict of proceedings since MFA 3425 of 2018 is pending challenging judgment in AS 119 of 2015 in respect of refusal of relief of specific performance of the sale agreement and therefore, at paragraph 4 of the written arguments, it is contended that, judgment in the present suit should be deferred till disposal of MFA 3425 of 2018. This contention cannot be accepted because as already noted, the execution of sale agreement will not result in transfer of any interest in immovable property in favour of the defendants. Moreover, as already noted Supra, since the sale agreement in favour of the defendants is admittedly unregistered document, the defendants also cannot claim protection under Section 53A of the Transfer of Property Act. The defendants were inducted into possession of suit schedule premises as tenants and therefore, notwithstanding execution of unregistered sale agreement, their possession has continued to be that as tenants of the property. Such being the case, once the tenancy is terminated, the defendants are liable to be evicted from the suit schedule 38 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 premises. If the defendants succeed in MFA in getting relief of specific performance, it is for defendants to reclaim the possession of suit schedule premises on the strength of their title and therefore, merely because MFA is pending in which question of specific performance of sale agreement is pending consideration, the defendants cannot seek deferring of judgment in the present ejectment suit. Accordingly, this contention of Learned Counsel for Defendants raised in the written arguments is rejected.
36. Another contention raised in written arguments is that, initially the tenancy was for entire 5,000 sq. ft. and plaintiff has taken back 1,500 sq. ft. and not paid rents for the said 1,500 sq. ft. This contention cannot be accepted because as per Ex. D1 produced by the defendants themselves, initial tenancy was for only 3,500 sq. ft. out of 5,000 sq. ft. of composite property. Therefore, the document produced by defendants themselves goes against the said contention raised in written arguments and therefore, cannot be accepted.
39
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023
37. Another contention raised in written arguments is that plaintiff has not complied with the directions in the arbitral award as modified in judgment in A.S. 119 of 2015, for refunding advance amount with interest. This contention cannot be raised in the present suit and if so advised, it is for the defendants to execute the arbitral award and therefore, raising this contention in the present suit is not relevant. Accordingly, none of the contentions raised in written arguments can be accepted and for the reasons already noted supra, I hold that plaintiff having proved due termination of tenancy of defendants is entitled to relief of ejectment. Issue No. 3 :-
38. Having held that the plaintiff has proved due termination of tenancy of defendants, the next question to be considered is the question of rate of damages / mesne profits to which plaintiff is entitled from the date of suit. In this regard, it is to be noted that, there is a slight dispute between the parties as to what was the initial rent at which defendants were inducted as tenants in June 2010. According to the plaintiff, as pleaded at paragraph 4 of the Plaint, the initial 40 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 rent was Rs. 35,000 per month. Per contra, as per the affidavit evidence of DW1, at paragraph 2, the initial rent fixed was Rs. 33,000 per month. In the arbitral award at Ex. P5, at paragraph 2, it is noted that, the contention of the defendants herein was that, initial rent for first year was Rs. 33,000, for second year rent was Rs. 36,000 and for third year rent was Rs. 40,000. Admittedly, the plaintiff has received advance amount of Rs. 5 lakhs at the time of inducting the defendants as tenants in June 2010. According to the plaintiff, the defendants paid the rent only for June 2010 and thereafter, they have not paid any rent at all. Although this is disputed by the defendants, at paragraph 5 of the written statement, it is pleaded as follows;
"Originally, defendants entered the premises as lessees and later on by virtue of agreement of sale executed in favour of defendants, the tenancy was terminated. In fact, the plaintiff received huge amount of more than Rs. 39 lakhs. Hence the defendants have stopped paying the rents to the plaintiff."
(Emphasis Supplied)
39. Therefore, the defendants also admit that since the date of execution of the sale agreement which is 26-03-2011, the defendants have not paid any rent to the plaintiff. Even 41 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 assuming that the rent was Rs. 33,000 as claimed by the defendants, the advance amount of Rs. 5 lakhs would be fully consumed by adjusting the same towards rent, by the end of 16 months from date of sale agreement i.e. by the end of the year 2012, the entire advance amount of Rs. 5 lakhs would stand adjusted towards the monthly rent which is admittedly not paid. It is to be noted that, in the present suit, the plaintiff is not claiming any arrears of rent and in fact the plaintiff is disentitled from claiming any arrears of rent since the suit is filed in the year 2018 whereas the tenancy was terminated in 2015 and therefore, claim for arrears of rent prior to 2015 would be barred by limitation. Be that as it may, in view of the above finding, when admittedly defendants have not paid the rent from date of sale agreement viz. 26-03-2011, it follows that the entire advance amount of Rs. 5 lakhs paid by the defendants to the plaintiff has been adjusted towards the rent by the end of 2012 itself. Therefore, defendants are not entitled to refund of the advance amount. The contention of Defendants that, Plaintiff was holding huge advance amount and hence, could not claim rent, cannot be accepted because as per the arbitral 42 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 award at Ex.P 5 as modified by judgment in AS 119/2015 at Ex.P 11, Plaintiff has been directed to refund the advance amount with interest from 15-04-2011.
40. Now, turning to the question as to what is the rate of damages/ mesne profits to be awarded from the date of suit is concerned, the plaintiff is claiming mesne profits at the rate of Rs. 1,49,590 per month with 20% enhancement every 12 months. The plaintiff has arrived at the said amount, as per the calculation at paragraph 20 of the plaint, by seeking 20% enhancement every year. However, plaintiff has failed to prove that there was any agreement between the parties to enhance the rent by 20% every year and viewed from any angle, the said rate of enhancement claimed by the plaintiff appears to be unduly excessive. On scanning the entire documentary evidence produced by the plaintiff, it is noted that, the plaintiff has not produced any material to show what is the prevailing rent for similar premises in the same locality. No doubt, in the cross-examination of DW1, at paragraph 11, he has answered as follows;
43
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 "As I have not continued the tenancy, I have not denied the damages claimed by the plaintiff at Rs. 1 lakh per month."
41. Merely because the defendant has not denied the rate of damages claimed by the plaintiff, the court cannot automatically grant damages at said rate, particularly when the plaintiff has not produced even an iota of material to show what is the prevailing rate of rent in the locality and the calculation made by the plaintiff by claiming 20% enhancement of rent per annum appears to be unduly excessive. Therefore, I am of the view that, the question of damages / mesne profits to which plaintiff is entitled to from the date of suit till date of handing over of vacant possession by the defendants, is a matter to be determined in a separate inquiry in terms of Order 20, Rule 12 of the CPC.
42. However, doing so would cause injustice to the plaintiff who has been deprived of the possession of the immovable property since the year 2010. No doubt, as contended by the defendants, the plaintiff has had the benefit of advance amount of Rs. 34 lakhs paid under the sale agreement. 44
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 However, as per the arbitral award at Ex. P5, as modified by the judgment in A.S. 115 of 2019 at Ex. P11, the plaintiff has been directed to pay interest on the advance amount from 15- 04-2011. Therefore, in order to avoid injustice to the plaintiff, I am of the view that, at this stage, a tentative rate of damages should be fixed subject to adjustment between the parties once the rate of damages / mesne profits is finally determined in separate inquiry under Order 20, Rule 12 of the CPC. In this regard, it is to be noted that, Hon'ble High Court of Karnataka has held that it is always open to the Court in a suit for ejectment and mesne profits to determine damages tentatively in the preliminary decree, leaving it open to be adjusted on final determination of the rate of damages in separate inquiry. In this regard, reference may be made to the law laid down by Hon'ble High Court of Karnataka in the case of Praveen Gupta v. C.L. Seshadri, ILR 2014 KAR 4302, as follows;
19. It is, no doubt, true that there is no express provision for the Court to determine a tentative damage. But, considering the background of this case, since the suggestion was made by the Counsel for the defendants that if the property had been let out, it would have fetched a sum of Rs. 45
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 3,00,000/- per month as on the date of cross- examination of PW1, even though the plaintiffs have claimed damages at the rate of Rs.
10,00,000/- per month, since the said amount has to be finally adjudicated after a full-dressed trial under Order XX Rule 12 CPC, the Trial Court using its discretion, in order to mitigate the hardship to the plaintiffs, since the defendants were enjoying the property of the plaintiffs without paying any rent, has fixed the tentative damage. This Court is of the opinion that such determination has to be accepted by this Court, as the same would be subject to the final outcome in the enquiry to be held under Order XX Rule 12 CPC. We are also of the view that if the plaintiffs are able to show that they are entitled to mesne profits of more than Rs. 3,00,000/- or Rs. 10,00,000/-, as contended by them, the tentative amount paid by the defendants would be adjusted finally. However, if the plaintiffs fail to prove that they are entitled to the damages at the rate of Rs.
10,00,000/- per month and if ultimately the damages to be determined is less than Rs.
3,00,000/-, in such an event, the plaintiffs would have to return the excess amount so collected by them to the defendants with interest to be ordered in the final decree proceedings. Litigations take time to complete. Therefore, the Court is invested with inherent power to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the Court. Delaying the proceedings can also be considered as abuse of process of the Court. The legal rights of the parties require to be appropriately considered. However such a tentative assessment has to be based on some material. The lower Court has relied upon the available material. It has applied its mind while passing the order. It is under these circumstances that the Trial Court has exercised its inherent 46 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 power to pass an order to fix the damages tentatively. We have no hesitation to hold that the Court has inherent power to fix the damages tentatively. Therefore, in order to protect the interest of both parties, the Court below has fixed the tentative damage at the rate of Rs. 3,00,000/- per month and that it cannot be said that the Court is without jurisdiction. The Court while exercising its discretionary power, in order to protect the interests of the parties and to safeguard the property, shall always direct the parties to pay tentative damages. Therefore, we are of the view that no illegality or irregularity or error is committed by the Trial Court in determining the tentative damage.
(Emphasis Supplied)
43. Therefore, it is in the light of the above law of Hon'ble High Court of Karnataka that I propose to award tentative damages at this stage, subject to adjustment in the separate inquiry under Order 20 Rule 12 of CPC. For arriving at the rate of tentative damages, it is relevant to note that, even according to the defendants, as per the contention taken in the arbitration proceedings, which is duly recorded in the Arbitral Award at Ex. P5, the rent for the first year, i.e., from June 2010 to June 2011, was Rs 33,000 and thereafter the rent was Rs 36,000 for the second year and the rent for the third year, i.e., from June 2012 to June 2013, was Rs 40,000. 47
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 At this rate of enhancement, which is even as per the case of defendants, the rent in the year 2018 would be not less than Rs 60,000 per month. However, it is to be noted that, in the Chief Examination Affidavit of PW-1, at paragraph 17a, it is stated that the electricity consumption charges is payable by plaintiff to the defendants since both parties are using same common electricity meter for first six months, i.e., for initial period of lease, and at paragraph 17b, it is stated that his liability towards power consumption is to be set off by the defendants against the damages payable by them in respect of the leased premises. Therefore, although in the present suit, the defendants have not claimed any set-off or counterclaim, the plaintiff has voluntarily conceded that from the damages payable to him, his liability towards power consumption has to be adjusted. This matter of adjustment is also a question to be gone into in the separate enquiry under Order 20, Rule 12 of the CPC. Since plaintiff has himself conceded that his power consumption is to be adjusted towards the damages payable by the defendants, I am of the view that, it would be safe to award tentative mesne profits at the rate of Rs 50,000 per month from date of suit till date of 48 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 handing over of vacant possession of the suit schedule premises by the defendants to the plaintiff subject to adjustment in separate proceedings in which the rate of damages shall be finally determined. Accordingly, I answer Issue No. 3.
Issue No. 6:-
44. This issue deals with question whether defendants prove the execution of sale agreement by plaintiff in favour of the defendants by receiving advance amount of Rs 39 lakhs. However, this issue does not really arise for consideration in the present suit because the question of specific performance is a subject matter of arbitration proceedings and defendants have not raised any counterclaim. Therefore, this issue is not necessary to be determined in present suit, since, the only reliefs being claimed in the present suit is for ejectment and mesne profits and I have already decided the said issues. Accordingly, I answer Issue No. 6 by holding that this issue does not arise for consideration.
Issue No. 8 :-
45. Having answered Issue No. 1 to 7 as above, I hold that plaintiff is entitled to relief of ejectment of the defendants 49 CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 from the suit schedule property and insofar as claim for mesne profits from the date of suit is concerned, plaintiff is entitled to separate enquiry under Order 20 Rule 12 of the CPC for determination of the rate of mesne profits, subject to granting tentative mesne profits, at this stage, of Rs 50,000 per month from date of suit till date of handing over of vacant possession of suit schedule property by the defendants. Accordingly, I answer Issue No. 8.
Issue No. 9:-
46. Having answered above issues, I proceed to pass the following:-
ORDER The suit is partly decreed, with cost.
It is held that plaintiff is entitled to decree of ejectment of the defendants from suit schedule property and accordingly, defendants are directed to vacate and hand over vacant possession of the suit schedule property to the plaintiff within two months from today.50
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 Insofar as prayer for mesne profits / damages is concerned, it is held that there shall be a separate enquiry as to quantum of mesne profits / damages to which Plaintiff is entitled to from date of suit till date of handing over of vacant possession of Suit Schedule Property, under Order 20 Rule 12 of the CPC.
However, at this stage, tentative damages / mesne profits is awarded at the rate of Rs 50,000/= per month payable by the defendants to the plaintiff from date of suit till date of handing over of vacant possession of suit schedule property and the amount paid as tentative damages by the defendants to the plaintiff shall be adjusted towards the final mesne profits / damages ascertained in the separate inquiry and in case, the final mesne profits so ascertained is lesser than the tentative mesne profits awarded herein, Plaintiff shall be liable to refund the excess amount received, to the Defendants.51
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 Office is directed to collect court fee under Section 42 [1] of the Court Fee and Suit Valuation Act on the tentative damages awarded herein.
After collecting the court fee, as above, Office to draw decree in accordance with this judgment.
Office to issue soft copy of this judgment to both sides, by email, if furnished.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 31st day of July, 2024] (Sri. S. Sudindranath) LXXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.
ANNEXURE
1. List of witnesses examined on behalf of Plaintiff:
PW.1 : Haridas Pottath
2. List of witnesses examined on behalf of Defendants:
DW.1: Dinesh N.R
3. List of documents marked on behalf of Plaintiff:
Ex.P.1 : Notice dated 29/8/2012.
Ex.P.2 : Reminder notice dt.28/12/2015.
Ex.P.3 : Postal Receipt.
52
CT 1390_Com.OS.3838-2018_Judgment.doc KABC170016612023 Ex.P.4 : Postal Acknowledgment.
Ex.P.5 : Order in CMP No.152/18.
Ex.P.6 : Deed of Resolution dt.5/3/1993.
Ex.P.7 : Certificate dt.2/11/2019 by BBMP.
Ex.P.8 : Khatha Extract of suit property.
Ex.P.9 : Tax Paid Receipt.
Ex.P.10 : Notice dt.2/6/2011.
Ex.P.11 : C.C of order in AS No.119/15.
Ex.P.12 : Letter dt.9/4/2018 sent by plaintiff.
Ex.P.13to15: 3 Cheques bearing No.609184 for Rs.34 lakhs, Ch.No.609185 for Rs.21,93,000/- and ch.No.609186 for Rs.4,35,945/-.
Ex.P.16 : Reply Notice dt.16/4/2018.
4. List of documents marked on behalf of Defendants:
Ex.D.1 : Original advance payment for factory shed dt.8/3/2010.
Ex.D.2 : 19 Electricity bill arrears upto 1/4/2022 paid by defendant upto date.
Ex.D.3 : Interest on excess rental amount payable by plaintiff.
Ex.D.4 : Payment made to BWSSB as per demand notice dt.18/11/2022.
(Sri. S. Sudindranath) LXXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.