Bangalore District Court
In Smt.Geetha Krishnamurthy vs In Wife Of Sri on 23 February, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 23RD DAY OF FEBRUARY 2015
O.S.No.591/2010
clubbed with
O.S.No.7843/2011
Plaintiff in Smt.Geetha Krishnamurthy,
O.S.No.591/2010 and About 58 years age,
defendant in Wife of Sri.
O.S.No. 7843/2011:- V.M.Krishnamurthy, residing
at No.193, 4th Main, BEML
Layout, Basaveshwaranagar,
Bangalore -560079.
(By Sri.M.R.Vijayaraghavan-
Advocate)
-vs-
Defendants in 1. Sri.Mohammed Haseeb,
O.S.No.591/2010 and 35 years,
Plaintiffs In O.S.No. s/o. late Abdul Gani,
7843/2011:-
2. Smt.Rahimunnisa,
63 years,
wife of late Abdul Gani,
1 and 2 both doing
business in ground floor of
2 O.S.No.591/2010 &
O.S.No.7843/2011
No.14, Commercial street,
Bangalore 560001,
And now residing at
No.26/1, "A" Benson
Town Cross,
Millers Road,
Bangalore -560046.
(By Sri.M.Shanmukhappa
Advocate)
O.S.No.591/2010
Date of Institution of the suit : 28/01/2010
Nature of the suit : Ejectment
Date of commencement of
recording of the evidence : 23/10/2010
Date on which the Judgment was
pronounced : 23/02/2015
Total Duration Years Months Days
: 05 00 26
O.S.No.7843/2011
Date of Institution of the suit : 04/11/2011
Nature of the suit : Specific Performance
Of the Clause 1 and 6 of
Lease Agreement
Date of commencement of
recording of the evidence : 23/10/2010 in
O.S.No.591/2010 as it is
clubbed with that suit
3 O.S.No.591/2010 &
O.S.No.7843/2011
Date on which the Judgment was
pronounced : 23/02/2015
Total Duration Years Months Days
: 05 00 26
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
The plaintiff in O.S.No.591/2010 has filed the suit for delivery of vacant possession of suit schedule property and mesne profits against the defendants and the plaintiffs in O.S.No.7843/2011 have filed the suit for specific performance of enforcement of Clauses-1 and 6 of the Agreement of Lease dated 15-08-2000 against the defendant.
2. The case of the plaintiff in O.S.No.591/2010 is that she is the absolute owner of the entire property bearing No.14, Commercial Street, Bengaluru. The defendants are son and mother and they have been tenants in portion of the said premises No.14, Commercial Street, Bengaluru as described in the schedule annexed to the plaint. 4 O.S.No.591/2010 &
O.S.No.7843/2011 The defendants had continued as tenants only on monthly rent of Rs.67,620/- excluding electricity and other charges. The tenancy being commenced from the 1st day of month ending with last day thereto. The defendants have been paying rents to the plaintiff through crossed-cheque. The demised premises is let out for commercial purpose which is old building and it is exempted form the purview of Karnataka Rent Act 1999 as the rate of rent and plinth area are more than the prescribed limit under the Rent Act.
3. The plaintiff wanted the demised premises for her own use and she appraised the defendants of her requirement. The defendants also promised to vacate the same on the ground that the Lease period expired and that they would make alternative arrangements and would shift. The defendants paid the rents to plaintiff till August 2009 and the rent of the September 2009 was due. The plaintiff requested the defendants to vacate and the defendants contended that the tenancy would come to an end by 30.9.2009 by efflux of time. The defendants promised to vacate, but later took up hostile attitude and got addressed advocate's notice dated.16.9.2009 to the plaintiff putting forward false and untrue 5 O.S.No.591/2010 & O.S.No.7843/2011 allegations to coerce the plaintiff to abandon her rights and allow unlawful gain. Though the notice of termination is required in view of the contention of the defendants that the tenancy comes to an end by efflux of time on 30.9.2009, the plaintiff informed the defendants to deliver vacant possession of the demised premises immediately on such expiry on 30.9.2009 and take return of the refundable advance and informed the defendants that they are liable to pay damages for use and occupation from 1.10.2009 onwards. However, in order to avoid controversies, the plaintiff has also issued notice of termination as required in law as abundant caution. The plaintiff is not willing to have the defendants as tenant in the demised premises any longer and the tenancy was duly determined and terminated by termination notice dated.26.9.2009 as from the date of expiry of the Lease as contended by the defendants i.e., on 30.9.2009. The notice sent to both the defendants to the address of the demised premises and also residential address given by the defendants in their notice dated.16.9.2009 has been evaded by the defendant and the same is returned with shara 'Not claimed" knowing the contents thereof and the one sent to their residential address is returned with shara "left". 6 O.S.No.591/2010 &
O.S.No.7843/2011 As abundant caution, a copy of the said termination notice has also been pasted to the main door of the demised premises and photos taken and thus the defendants are duly served with the notice and the defendants were required to deliver vacant possession of the premises within 15 days of service of said notice. But they have not complied and the defendants' occupation of the demised premises is unauthorised from the date of termination of tenancy and they are liable to pay damage/mesne profits under Or.XX Rule 12 of CPC as the same is capable of fetching more than Rs.3 Lakhs p.m.
4. The plaintiff has further submitted that she mentioned in that notice that if the defendants were to pay any amount subsequent to issuance of notice, the same will be received by the plaintiff without prejudice to her rights as damages subject to calculations. The defendants have sent crossed account payee cheque No.811373 dated.7.10.2009 for a sum of Rs.67,620/- signed by the 1st defendant drawn in the name of plaintiff without any covering letter to the plaintiff by registered post which was encashed by plaintiff. Again, the defendants sent another crossed account payee cheque No.816679 dtd.5.11.2009 for a sum of Rs.81,144/- in favour of the 7 O.S.No.591/2010 & O.S.No.7843/2011 plaintiff in order to create complications and to try to implicate the plaintiff if possible by such methods and plaintiff got addressed letter dated.20.11.2009 to the defendants by registered post again intimating the defendant that plaintiff will receive the amount sent and that may be entitled in future as damages without prejudice to her rights and the defendants have acknowledged the same on 20.11.2009, but they have not sent their reply thereof. The defendants have sent crossed account payee cheque bearing No.816682 daed.7.12.2009, another cheque bearing No.816687 dated.12.01.2010 for Rs.64,430/- and Rs.72,786/- respectively which were also encashed by the plaintiffs as damages.
5. The plaintiff has further asserted that the defendants were doing business earlier in the premises and now since few years, they are not doing any business and they have sublet the ground floor of the schedule property to M/s. Good Things a company managed by Sri. Shashi Katiya and that company is in exclusive possession of the ground floor and doing their business in garments. The defendants are collecting Rs.2,50,000/- from them and so also sublet mezzanine floor to M/s. Alis and Son's, Art and Crafts who are doing the 8 O.S.No.591/2010 & O.S.No.7843/2011 business in their own therein and are in exclusive possession of the said portion and the defendants are getting Rs.One Lakh p.a. from them. Thus the defendants have parted with schedule property and they have acted illegally and making unlawful gain by such methods. Hence the plaintiff has constrained to file the suit directing the defendants to vacate and deliver vacant possession of the schedule property to the plaintiff and also for future mesne profits with costs of the suit.
6. In response to the suit summons, the defendants appeared through their learned counsel. The defendant No.1 has filed the written statement. Wherein the 1st defendant has denied each and every allegations made in the plaint as false. In turn, the 1st defendant has submitted that, as per the terms of the Lease Agreement, there is a renewal Clause. The defendants had got issued elgal notice to the plaintiff on 16.9.2009 calling upon her to execute Lease Deed in pursuance to the Lease Agreement dated.15.8.2000. As per the Lease Deed, the initial period of Lease is 9 years and specifically agreed that Lease shall be renewed for another period of 9 years commencing from 1.10.2009. Under the circumstances, the 9 O.S.No.591/2010 & O.S.No.7843/2011 defendant opted for renewal of Lease had got issued legal notice. The plaintiff on receipt of the notice has expressed that she is not willing to execute the registered Lease Deed as per the terms of Lease Agreement dated.15.08.2000 and further contended that the Lease has come to an end on 30.9.2009 and requested the defendants to vacate the building and take back the security amount. As per Clause 1 of the Lease Agreement, the plaintiff has specifically agreed to renew the Lease for a consecutive period of 3 years each thereby the plaintiff is required to execute the Lease Agreement for another period of nine years. In view of the same, the plaintiff cannot maintain the instant suit for ejectment.
7. The 1st defendant has further submitted that the plaintiff has got issued legal notice on 20.11.2009 intimating about the termination of tenancy and she is no more interested to continue the Lease. Earlier, the defendants were paying Rs.67620/- and the rent has been increased and even after the termination of the Lease, the plaintiff has accepted the enhanced rent and the enhanced rent now being paid Rs.81,144/- without deducting the TDS and after deducting 10 O.S.No.591/2010 & O.S.No.7843/2011 the TDS, the defendants are paying Rs.72786/- thereby the plaintiff has consented for the renewal of the Lease and accepted the rent.
8. The defendant has clearly and unequivocally admitted that the plaintiff is the absolute owner of the suit schedule property and the defendants are the tenants under the plaintiff on a monthly rental of Rs.67620/- and the same is now being increased to Rs.81,144/- and also in view of the fact that the suit schedule property is a commercial one, the Rent Control Act is not applicable. The defendant has specifically denied that the plaintiff wanted the demised premises for her own use and occupation and defendants also promised to vacate the same on the ground that the Lease period has expired and the defendants would make alternative arrangements and would shift and paid the rents till August 2009 and were due rent from September 2009. The defendants themselves had got issued a legal notice dated.16.9.2009 before the expiry of the tenancy calling upon the plaintiff to renew the Lease as agreed to in the Lease Agreement dated.15.8.2000. The plaintiff instead of complying with the terms of the said notice, has filed this suit contending that the Lease comes to an end on 30.9.2009. When the defendants exercised 11 O.S.No.591/2010 & O.S.No.7843/2011 the option of renewal of Lease and called upon the plaintiff to come forward and execute the registered Lease Deed for a period of nine years commencing from 1/10/2009, the plaintiff cannot maintain the suit for ejectment. The legal notice dated.16.09.2009 came to be issued as per the terms of the Lease Agreement dated.15.08.2000 opting for renewal of the Lease. Under the circumstances, the plaintiff ought not to have filed the suit and On the other hand, ought to have executed a registered Lease Deed as agreed to by her. However, the plaintiff has given a consent for renewal of the Lease by accepting the enhanced rent of Rs.81,144/-, but the plaintiff for the reasons best known to her, has filed the instant suit.
9. The 1st defendant has further stated that the defendants had spent more than Rs.8 lakhs for carrying out interior decorations and have established their business and earned a very good reputation and as such, the plaintiff is required to execute the registered Lease Deed for a further period of 9 years. As such, the suit of the plaintiff is premature one and is liable to be dismissed. The defendants are contemplating to file suit for specific enforcement of Clause-1 of the Lease Agreement dated.15.8.2000. 12 O.S.No.591/2010 &
O.S.No.7843/2011 The defendants have taken a number of franchise agencies and in view of the same, each and every company that gives business, their name has to displayed in the shop. Just because the defendants have displayed the name board of that company, it does not mean that they have sub-leased the same to the said company. It is also denied that the defendants are collecting rent of Rs.2,50,000/- p.m. from M/s.Good Things Company and are getting Rs.1.00 lakh p.m. from the M/s.Alis Sons and Art Crafts. The defendants have not sub-let any portion of the suit property to any 3rd persons. The defendants are dealing with the goods supplied by various branded companies. Their name boards are displayed. Now the defendants have taken franchise of M/s.Mann Company and carrying on the business and as stated above, the defendants have made huge decorations to their establishments. If an order of eviction is passed, the defendants would be put to irreparable loss and hardship and On the other hand, no hardship or prejudice will be caused to the plaintiff, as the plaintiff is only interested in collecting the rents and the suit schedule property is meant for only earning rents. The defendants at the request of the plaintiff are paying enhanced rent and same is 13 O.S.No.591/2010 & O.S.No.7843/2011 being accepted by the plaintiff thereby agreeing for the renewal of the Lease for a further period of nine years. The termination is not proper and correct and it is not in accordance with Sec.106 of the Transfer of Property Act. The defendants are not liable to pay damages as claimed. There is no cause of action to file the suit. Therefore, it is prayed to dismiss the suit with costs.
10. As noted supra, the defendants in O.S.No.591/2010 have filed separate suit for specific performance of Clauses-1 and 6 of the Lease Agreement dated.15.8.2011 against the defendant for renewal of Lease in respect of the schedule premises for a further period of 9 years commencing from 1.10.2009 against the defendant i.e., the plaintiff in O.S.No.591/2010 with similar set of facts as averred in their written statement filed in O.S.No. 591/2010. Besides, the plaintiffs have submitted that the plaintiffs had got issued notice dated.16.9.2009 itself calling upon the defendant to come forward and execute registered Sale Deed as per Clause-1 and 6 dated.15.8.2000. Infact, as per the Clauses-1 and 6 of the Lease Agreement the Lease in respect of the schedule premises was required to be extended for nine years commencing fro, 1/10/2000 at 14 O.S.No.591/2010 & O.S.No.7843/2011 15% on the existing rent thereby agreed in an unconditional term that she would execute a registered Lease Deed for a further period of nine years after the expiry of initial period of nine years. But despite the notice, the defendant instead of complying with the terms of the Agreement of Lease Dated.15.8.2000 has filed the suit for ejectment. In view of the same, the plaintiffs are constrained to file the suit for specific performance of the said Clauses of the Lease Agreement. The plaintiffs have agreed to enhance the rent on the existing rent. The plaintiffs have spent considerable amount for carrying out renovations and decorations to the schedule premises so as to suite their business and paying rent at enhanced rate, the defendant is bound to execute the registered Lease Deed for a further period of nine years commencing from 1.10.2009. Since the defendant failed to do so, the plaintiff had got issued a notice exercising the option of getting the Lease renewed and the same has been duly served on the defendant. Since the defendant did not comply with the demand made in the said notice, the plaintiffs are constrained to file the instant suit for enforcement of the terms of the Lease Agreement dated.15.8.2000. The plaintiffs even now are 15 O.S.No.591/2010 & O.S.No.7843/2011 ready and willing to get the Lease Deed registered at their own costs and further agreed to pay enhanced rent as per Clause-6 of the Lease Agreement dated.15.8.2000. The plaintiffs had paid a sum of Rs.30,49,000/- as security deposit which is lying with the defendant and while issuing the notice, the defendant has not paid the said amount and as such, the defendant is required to renew the Lease in favour of the plaintiffs. The defendant has got filed a suit in O.S.No.591/2010 for ejectment which clearly goes to show the conduct of the defendant in having retained Rs.30,49,000/-. The defendant has no legal right whatsoever to file the suit for recovery of possession based on the reply notice. The cause of action for the suit arose on 16.9.2009 when the plaintiffs got issued a legal notice calling upon the defendant to come-forward to comply with the demand made therein for extension of the Lease by executing a registered Lease Deed on 26.9.2009 when the defendant issued a reply notice and on 28.01.2010 when the suit in O.S.No.591/2010 was filed on 23.9.2011 when the application for counter-claim of the plaintiffs came to be rejected and subsequent dates within the 16 O.S.No.591/2010 & O.S.No.7843/2011 jurisdiction of this court. Therefore, it is prayed to decree the suit as prayed against the defendant.
11. The defendant has appeared through her learned counsel and resisted the claim of the plaintiff by filing their written statement on similar facts as averred in her plaint in O.S.No.591/2010. Besides, it is submitted that suit is not maintainable in law or on facts and the same is devoid of merits. The plaintiffs have instituted this suit in vengeance, in order to harass the defendant owner of the property and as a counter blast and to make unlawful gain. The plaintiffs are guilty of suppression of facts, mis-representation, fraud and manipulation of documents and they are not entitled to any reliefs. The suit is instituted long after the institution of the suit by defendant against plaintiffs and after commencement of evidence in the said suit and knowing that they have no defence in the suit, have moved the present suit putting forward false and untrue allegations to try to squat in the property and in any event to delay the proceedings of earlier suit which is posted for the evidence of defendants i.e., the plaintiffs herein. 17 O.S.No.591/2010 &
O.S.No.7843/2011
12. The plaintiffs have sub-let the demised premises and are making unlawful gain and they are not actually carrying on any business in the demised premises. There was/is no Conesus-ad-idem between the parties. The defendant has not agreed to either extend or renew the Lease at any time. In any event, the alleged document is not engrossed on requisite stamp paper and the same is inadmissible in evidence for any purpose and it cannot be looked into or marked in evidence in the suit. The plaintiffs have fabricated the documents and trying to gain unfair advantage under the guise of Lease Deed and want to swallow the valuable property of the defendant which they are not entitled to. This court has no jurisdiction to consider the alleged document or look into any clauses thereunder or mark the same in evidence. The Lease was oral, however the defendant has admitted that the security deposit of Rs.30,49,000/- was paid which is returnable on plaintiffs vacating and handing over vacant possession of the demised premises in good tenantable condition. The defendant has denied that there was any understanding for renewal of Lease by and between plaintiffs as alleged. The alleged terms and conditions even if any, are void, vague, uncertain, unenforceable as a contract and 18 O.S.No.591/2010 & O.S.No.7843/2011 there was/is no meeting of minds and defendant has not accepted any such terms and conditions. There can be no renewal. No question of plaintiffs exercising option of any clauses-1 or 6 of the alleged Lease Deed dated.15.8.2000 arises in the matter. The defendant has admitted that notice dted.16.9.2009 was issued by the plaintiff which has been duly replied by the defendant on 26.9.2009 and also terminated the tenancy requiring plaintiffs to deliver up vacant possession of the demised premises immediately on the expiry on 30.9.2009 and plaintiffs were directed to take refund of advance nd they were informed that they would be liable to pay damages for use and occupation of the demised premises from 1.10.2009 onwards at such rate on enquiry as the demised premises is capable of fetching more than Rs.3 Lakhs per month. The plaintiffs have evaded the said notice and the RPAD cover was returned with shara 'Not claimed knowing the contents thereof' and the plaintiffs were duly served with the notice.
13. The defendant encashed the various crossed- Account payee cheque drawn in her name without prejudice to her rights as already intimated the defendant through letter dated.20.11.2009. The 19 O.S.No.591/2010 & O.S.No.7843/2011 plaintiffs have not sent any further communications for the said letter informing them that the amounts paid through cheques would be received by defendant as damages for use and occupation and not otherwise. No question of the defendant executing or registering any Lease Deed arises in the matter either for further period of 9 years or for any further period. The plaintiffs are liable to deliver up possession of demised premises forth-with. What is stated in the notice of defendant is that as plaintiffs have contended in their notice that the Lease expires by efflux of time on 30.9.2009. The defendant does not want to enter into controversy and she has called upon the plaintiffs to deliver possession on such expiry as per plaintiffs. O.S.No.591/2010 was instituted on 28.1.2010 by the defendant against the plaintiffs for ejectment and the plaintiffs herein defendants in the said suit evaded suit summons and delayed service and they were placed exparte and subsequently appeared through their counsel on 12.11.2010 and also filed I.A.4 seeking counter claim which was rejected and at the stage of evidence on behalf of the defendants in that suit, the plaintiffs have instituted the present suit which clearly establishes their ulterior motive. 20 O.S.No.591/2010 &
O.S.No.7843/2011
14. The refundable advance amount of Rs.30,49,000/- is to be refunded only at time of plaintiffs vacate and handover vacant possession of the demised premises and not otherwise. In the notice dated.26.9.2009, the plaintiffs were called upon to deliver vacant possession and to take return of security deposit forth-with which has not been complied by plaintiffs. The plaintiffs having promised the defendant to vacate and made her believe the same issued notice having gone back and defendant was constrained to institute the said suit. There is no cause of action for the suit and the suit is liable to be dismissed in limine. The plaintiffs have not paid proper Court Fee and the provisions of law under which the suit is valued is incorrect and unacceptable. The plaintiffs are also guilty of delay and latches. The plaintiffs had unlawfully and without the knowledge and consent of the defendant had sublet the portion of the property and parted with possession of mezzanine floor to M/s.Ali Sons Arts and Crafts who are dealing in handicrafts and other materials and another portion i.e., ground floor to M/s.Good Things Home Store (P) Ltd., who are doing business on higher rent and advance and have made profit of lakhs of rupees all these years at the cost of the defendant and they 21 O.S.No.591/2010 & O.S.No.7843/2011 are not entitled to any reliefs. The defendants are not doing any business in the schedule property and are getting huge income there from. The plaintiffs have instituted this suit to perpetuate their illegal acts of sub-letting and are harassing the defendant which they are not entitled to. Therefore, it is prayed to dismiss the suit with exemplory costs.
15. On the basis of the pleadings of respective parties, the following issues have been framed:
ISSUES IN O.S.No.591/2010
1. Whether the notice of termination is valid?
2. Whether the defendants prove that the lease is to be extended for a further period of 9 years from 1.10.2009?
3. Whether the plaintiff is entitled for damages?
4. What order or decree?
ISSUES IN O.S.No.7843/2011
1. Whether plaintiffs prove that the defendant has entered into agreement of lease dt.15.8.2000?
22 O.S.No.591/2010 &
O.S.No.7843/2011
2. Whether the plaintiffs prove that they have exercised option of renewal of lease as per clause-I and VI of lease agreement?
3. Whether the plaintiffs prove cause of action?
4. Whether the defendant proves that the plaintiffs have sub let the suit property and further proves that there was no agreement for extension of lease?
5. Whether the plaintiff is entitled for the reliefs?
6. What order or decree?
16. It is pertinent to note here that as per order dted.29.2.2012, O.S.No.7843/2011 has been clubbed in O.S.No.591/2010 for common trial and disposal by common Judgment. The plaintiff got examined as P.W.1 and adduced documentary evidence from Ex.P1 to Ex.P22. Meanwhile, defendant No.1 was examined as D.W.1 and got marked as Ex.D1 to Ex.D10. I have heard the counsel for both the parties.
17. My findings on the above issues in O.S.No.591/2010 are as under:-
Issue No.1: In the Affirmative Issue No.2: In the Negative 23 O.S.No.591/2010 & O.S.No.7843/2011 Issue No.3: In the Affirmative Issue No.4: As per final order Findings on the issues in O.S.No.7843/2011 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 Negative Issue No.5: In the Negative Issue No.6: As per final order for the following:-
/REASONS/
18. Issues No.1& 2 in O.S.No.591/2010 and Issue Nos.1,2 and 4 in O.S.No. 7843/2011:-
Since these issues being interlinked with each other, in order to avoid repetition of discussions, are taken up together for consideration.
19. P.W.1 has reiterated the averments made in the plaint during the course of her examination-in-chief. Whereas it is evident from the cross-examination of P.W.1 that the Lease was given in the month of October 2000 on monthly rental of Rs.49,000/- for 11 months. Since the Lease was oral, she has not produced any document with regard to the duration of Lease. Even P.W.1 has denied the 24 O.S.No.591/2010 & O.S.No.7843/2011 Lease Agreement when confronted to her by the counsel for the defendants. As per the oral Agreement, rent has to be enhanced on the expiry of 11 months but the defendants did not increase. The defendants were paying monthly rental at the rate of Rs.67620/- prior to filing of the suit. The defendant had issued notice as per Ex.P15 and she replied to that notice. Admittedly the defendants are the tenants under the plaintiff for the past 9 years. P.W.1 has further admitted that the defendants have paid an advance of Rs.30,49,000/-. She has not returned the advance amount to the defendants at the time of giving reply as per Ex.P1. The defendants have obtained receipt for having paid Rs.30,49,000/- to the plaintiff. But it is denied that as per the Agreement, the plaintiff was to return Rs.30,49,000/- before taking delivery of possession. The plaintiff received Rs.72,786/- as damages even subsequent to filing of the suit. P.W.1 has denied that as per the Agreement, she had agreed to extend and renew the Lease for a further period of 9 years from 2009 by way of execution of registered Lease Deed. P.W.1 has admitted in her further cross-examination that at the time of issuing Ex.P1, the rent was Rs.67,720/- p.m. Though there is reference of 25 O.S.No.591/2010 & O.S.No.7843/2011 Lease Deed in Ex.P1, yet P.W.1 deposed that there was only an oral Lease. Besides, P.W.1 has denied about the reference of Lease Deed in Ex.P1. As deposed by P.W.1, the advance amount is to be returned when the possession is given as per oral Agreement.
20. On the other hand, D.W.1 has also reproduced the averments made in his written statement and D.W.1 has clearly admitted that the defendants have obtained schedule shop premises for their garments business. The schedule premises is bearing No.14, Commercial Street, Ward No.79. The security deposit would be refunded on delivery of vacant possession of the schedule premises to the plaintiff. The rate of rent was Rs.67,620/- p.m. in the year 2007. The rate of rent was Rs.49,000/- initially for 3 years and then it was enhanced to Rs.57,000/- for another 3 years and for last three years the rent was Rs.67,620/- p.m. The 1st defendant paid rents through crossed account payee cheques only prior to 2009. The total area of schedule premises is 1550 sq.ft. consisting of mezzanine and ground floor. D.W.1 has further admitted that he was running his business in the name and style 'Good Things' in the year 2009. Both the defendants are Income Tax assesses. They have shown in their 26 O.S.No.591/2010 & O.S.No.7843/2011 Income tax returns, but they are not having VAT number. D w1 has no records to show either proprietor or the partner of 'Good Things', but made it clear that he has franchise to 'Good Things', but he does not know who is looking after the company 'Good Things' as that company is from NOIDA. One 'Mann' is a company and it is running family business. The photographs at Ex.P8 to Ex.P12 are pertaining "Good Things". It is also admitted that the said "Ali Sons Arts and crafts"
is also franchise. D.W.1 has further admitted that he is not directly concerned with the business of 'Ali Sons Arts and Crafts' and the company is opening and closing the shops. He has one key and another key is with franchise. Now the defendants are doing business but the D.W.1 does not have bill books or account books pertaining to the business carried on in the schedule premises till 2009, as those bills books are with the company persons. The CST and KST pertaining to the business is not in their name, but in the name of the company.
D.W.1 has not informed about franchise to the owner i.e., the plaintiff because it is already in the Agreement. D.W.1 has further admitted issue of two cheques dated.7.10.2009 and 5.11.2009for Rs.67,620/- and Rs.81144/- respectively but denied the receipt of 27 O.S.No.591/2010 & O.S.No.7843/2011 notice at Ex.P16. As deposed by D.W.1, the Lease period came to an end by 30.09.2009. The defendants have no documents to show that they have deposited TDS towards the account of the plaintiff, but they have deposited the difference amount of TDS in Amanath Co-
Operative Bank Ltd., The defendants called upon the plaintiff to furnish PAN card number, but she did not reply. D.W.1 has not caused any notice to plaintiff in that regard or informed the plaintiff in writing to that effect. It is further admitted that Lease was initially for 3 years and as per Clause-1, duration is 9 years with renewal by every 3 years from 2000. D.W.1 has stoutly denied that the plaintiff has not agreed for renewal of tenancy and no option is given regarding the renewal in Ex.D4. It is also denied that the present market rate in Commercial street is Rs.3 Lakhs for similar area. D.W.1 does not have any records to show that plaintiff spent Rs.8 Lakhs for renovation. Even the defendants had not instructed their Advocate while drafting written statement, regarding deposit of TDS. Even he has not obtained permission for renovation from the concerned authorities. However it is denied that the defendants are liable to vacate the premises and to pay damages to the plaintiff.28 O.S.No.591/2010 &
O.S.No.7843/2011
21. D.W.1 has got marked Ex.D8 to Ex.D10 after thought in support of their claim. D.W.1 was said to have sent covering letter along with cheques sent to the plaintiff, but none of such covering letters is produced before the court.
22. Both the parties are relying on notices exchanged between them prior to filing of the suits. At the 1st instance, the defendants got issued notice dated.16.9.2009 to the plaintiff with reference to the unregistered Agreement to Lease dated.15.8.2000 as per Ex.D1 as they are entitled to another 9 years, commencing from 1.10.2009 and through that legal notice, the defendants were said to have exercised their option of renewal as per that Agreement and called upon the plaintiff to come forward to execute the registered Lease Deed as agreed to by her for a further period of 9 years, commencing from 1.10.2009 as per the terms of the Agreement to Lease dated.15.8.2000 and they were ready and willing to pay the enhanced rent in respect of the schedule property. Meanwhile, the plaintiff got issued legal notice as per Ex.P1. Wherein, the plaintiff has informed the defendants that the defendants being tenants in the schedule premises were paying rents to the plaintiff till 29 O.S.No.591/2010 & O.S.No.7843/2011 August 2009 and the rent for the month of September 2009 was due and the plaintiff is not interested to have the defendants as tenant in the demised premises has requested the defendants to vacate the demised premises and the defendants contended that the tenancy comes to an end by efflux of time and the defendant would vacate by taking some time and it is seen that the defendants have taken up hostile attitude and have got addressed to plaintiff's Advocate's notice dated.16.9.2009 putting forward false and untrue allegations to coerce the plaintiff to allow unlawful gain as a counter blast.
23. According to defendants, the tenancy came to an end by efflux of time by 30.9.2009. The plaintiff does not wish to enter into any controversies in that regard and the defendants were required to vacate the demised premises and handover vacant possession of the same to the plaintiff on such expiry and take return of the security deposit from the plaintiff. Further it was brought to the notice of the defendants through that notice that possession of the defendants after such expiry shall be unlawful and the defendants were liable to pay damages, mesne profits for use and occupation of the demised premises from 1.10.2009 at the rate as may be 30 O.S.No.591/2010 & O.S.No.7843/2011 determined on enquiry as the demised premises is capable of fetching more than Rs.3 Lakhs p.m. etc., The plaintiff has further noted in that notice that there is no clause for renewal of the tenancy for any period either for 3 years or for 9 years as put forward and the alleged clause even if any is unenforceable, vague, uncertain, there is no conseus-ad-idem/mutuality between the parties and the plaintiff has not agreed for any such term and interpretation of the defendants is incorrect and unacceptable. The alleged Lease Deed is inadmissible in evidence for want of registration and stamp duty and the same cannot be looked into for any purpose and no question of defendants exercising right or option for renewal arises in the matter. No such right is given under any document. Plaintiff cannot comply with any such demands and no such obligation cast on the plaintiff.
24. Infact, the said notice at Ex.P1 sent through RPAD to both the addresses of the defendants. As per postal endorsement, the notices sent to the address of the suit property to the defendants were returned as 'Addressee Absent'. Whereas the notice addressed to their residence returned as 'The Addressee left", 31 O.S.No.591/2010 & O.S.No.7843/2011 as it is evident from Ex.P2 to Ex.P6 respectively. Apart from that, the Advocate for the plaintiff had affixed/pasted the copy of notice to the conspicuous place of the defendant duly as it reflects from the photographs at Ex.P13 and Ex.P14. The photographs at Ex.P8 to Ex.P12 reflect that the business has been carried on in the suit schedule shops in the name of " Good Things". As such, the defendants cannot deny the due service of notice of termination of tenancy issued by the Advocate for the plaintiff.
25. It is relevant to note here that, the 1st defendant had paid sum of Rs.81,144/- dated.5.11.2009 and the same was being encashed by the plaintiff subsequent to issuing termination notice dted.26.9.2009. Meanwhile, the plaintiff got issued another notice through her Advocate on 20.11.2009 as per Ex.P16 within 15 days from the date of receipt of that cheque through post. The said notice was duly served upon both the defendants as it is evident from postal acknowledgments -Ex.P17 to Ex.P20, thereby, the plaintiff brought to the notice of the defendants that she received that cheque without any covering letter and the defendants in order to create 32 O.S.No.591/2010 & O.S.No.7843/2011 complications and create evidence and to try to implicate the plaintiff, they have intentionally increased the rent and has been sent the same to plaintiff with ulterior motive for which the defendants are not entitled to. Further the plaintiff would be encashing the said cheque towards the damages and use and occupation subject to calculations and adjustments and not otherwise. In case the defendants could send any amount in future, the same would be received in the same manner as mentioned in the notice. Ex.P21 Tax invoice issued by the Ali Sons Arts & Crafts dated.3.8.2010 discloses that the said business is being run in the schedule premises itself as alleged by the plaintiff in her plaint.
26. The certified copy of the order on I.A.4 in O.S.No.591/2010 at Ex.D3 denotes that the defendants proposed to set up counter claim as against the claim oft the plaintiff in respect of the suit property in pursuance to the Lease Agreement dated.15.8.2000 for specific performance of that Agreement, but on merits, the said application came to be dismissed by this court in the said suit on 23.09.2011. Thereafter the defendants in O.S.No.591/2010 have filed the suit in O.S.No.7843/2011 for specific 33 O.S.No.591/2010 & O.S.No.7843/2011 performance before this court on 4.11.2011. It is also crystal clear from the Statement of Accounts pertaining to the bank account of the defendant No.1, defendant No.2 and passbook of defendant No.1 at Ex.D5 to Ex.D9 respectively in the Amanath Co-Operative Bank Ltd., that the defendants have paid the rent/damages even subsequent to service of notice of termination of tenancy from July 2009 to June 2014. But, the defendants for the reasons best known to them have not paid the same for the month of November and December 2009, April and July,2010, June 2012 and September 2013.
27. As noted supra, the plaintiff had encashed the cheques from time to time for the said period under protest as damages for the use and occupation of the premises by the defendants during the said period even subsequent to termination of tenancy. This is one of the important aspects of the matter.
28. As noted supra, the plaintiff has not only ignored the unregistered Lease Agreement dated.15.8.2000, but also denied the execution of such an Agreement of Lease at Ex.D4 when confronted to her in the course of cross-examination. Infact, the defendants are 34 O.S.No.591/2010 & O.S.No.7843/2011 very much relying on this Agreement of Lease at Ex.D4 not only in support of their defence in O.S.No.591/2010, but also in support of their claim for specific performance of Clause-1 and 6 of that Lease Agreement in O.S.No.7843/2011. I feel it better to reproduce the relevant recitals in the said Agreement of Lease dated.15.8.2000.
Clause-1 relating to Duration:
Accordingly the Lease shall be for an initial period of nine years and shall commence from calendar month 1st October 2010, renewal for further consecutive terms of 3 years each.
Clause-3: deals with Rent:
The agreed rent of the schedule property shall be Rs.49,000/- p.m. The said rent shall be paid on th or before 5 of every month to the Lessor and shall obtain receipt thereof.
Clause-6:relating to Enhancement: The agreed rent shall be enhanced after an initial period of three years by 15% for the next term of three years on the existing rent and 20% for the remaining term of every three years on the rent last ended upon and shall continue till the expiry of the Lease period. After the expiry of the total 9 years period of Lease the Lease may be further extended on the option of the lessor and mutual consent.
Clause-9 is in respect of Sub-Lease which
reads thus:-
The Lessee shall not be entitled to sub-
Lease, give on assign, underlet or part with possession of the schedule property to any third 35 O.S.No.591/2010 & O.S.No.7843/2011 party without the written permission of the lessor. The lessee can have Franchise, Dealership during the Lease period and the lessor shall have no objection to the lessee to take any franchise/dealership during the Lease period.
29. It is a fact that the said Lease Agreement entered into in between the plaintiff and defendant is for initial period of 9 years in respect of the immovable property situated in Commercial street consisting of entire ground with mezzanine floor as described in the schedule annexed to the Agreement. Whereas the said Agreement is executed on Rs.100/- India Non Judicial Stamp. As such, the said Lease Agreement is not only executed on insufficiently stamped paper, but also unregistered. In view of the provisions as contemplated u/s.17 of the Indian Registration Act, the Agreement of Lease in question should be compulsorily registered by the Registering Authority without which it cannot be admissible in evidence. Moreover, in view of order dated.14.8.2012, it is already decided that the Agreement of Lease daed.15.2.2008 is inadmissible in evidence even for collateral purpose and the same is impounded. Further the tenants/defendants in O.S.No.591/2010 were directed to pay duty and penalty on the said document. Infact, the defendants 36 O.S.No.591/2010 & O.S.No.7843/2011 have paid deficit duty with penalty of Rs.1,37,979/- on 19.8.2013. Accordingly the said document has been impounded. Even then, in view of the aforesaid order dated.14.8.2012, the said Agreement of Lease is totally inadmissible in evidence and it cannot be looked into even for the collateral purpose as pointed out by the counsel for the plaintiff in O.S.No.591/2010. As such, the said inadmissible Agreement to Lease cannot be looked into for the purpose of specific performance of terms of Agreement particularly, Clause-1 and 6 as claimed by the defendants therein. Though the plaintiff and defendants in O.S.No.591/2010 have entered into such Agreement, yet there is no clause empowering the defendants to offer/opt for either extension of period of tenancy or renewal of the Lease by entering into fresh Lease Agreement. In view of specific recital in Clause-6, after the expiry of total period of 9 years of Lease, the Lease might have been further extended only on the option of the Lessor/Plaintiff and mutual consent of both the parties. In that event, the notice at Ex.D1 issued by the defendant is prematured one. On the other hand, the plaintiff being Lessor has duly terminated the tenancy of the defendants by issuing notice at Ex.P1 37 O.S.No.591/2010 & O.S.No.7843/2011 and shown her willingness as on 26.09.2009 itself that she was not interested to have the defendants as tenants. In view of Clause-6 of Ex.D4, the defendants have no right to exercise their option without initial option of the plaintiff so far extension of period of Lease after efflux of time of initial Lease entered into in between the parties. This is another aspect of the matter to be taken into consideration.
30. The plaintiff has merely pleaded that the defendants are not in possession of the schedule property and they have sub-let the suit property to 'Good Things' company and 'Ali Sons Arts and Crafts' but admittedly the plaintiff has no documents to show that the defendants have not only sub-let the said premises, but also parted with their possession in respect of the suit schedule premises. On the other hand as deposed by D.W.1 now one 'Mann' is a company running its family business. The defendants have no records to show that they are either proprietors or partners of 'Good Things'. The said Ali Sons Arts and Crafts' are doing business in the portion of the property but as deposed by D.W.1, the said businesses are franchise. This fact is neither denied nor disputed by the plaintiff. At this 38 O.S.No.591/2010 & O.S.No.7843/2011 juncture it is very much relevant to note that as per Clause-9, though the defendants should not be entitled to sub-Lease the schedule property, yet they can franchise/dealership during the Lease period and the plaintiff/Lessor should have no objection to the Lessees/Defendants to take any franchise/dealership during the Lease period. In the absence of reliable evidence, mere allegations of the plaintiffs in that regard cannot be believed.
31. In the course of arguments, the counsel for the plaintiff in O.S.No.591/2010 has placed his reliance on various decisions. In 2008 AIR SCW 4829 in M/s.K.B.Saha And Sons Pvt. Ltd., V.M/s.Development Consultant Ltd., wherein the Hon'ble Supreme Court of India has laid down in para-21 of the Judgment which reads thus:-
"21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of 39 O.S.No.591/2010 & O.S.No.7843/2011 collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
32. In AIR 2006 KAR 295 in Smt. G. Kusuma Devi Vs. Smt. Gowramma and others.
"Thus, in view of aforesaid discussion, it has to b held that the terms of the lease deed in question including the term of lease period of 30 years cannot be looked into because of non- registration of the document (Ex.D.3). It is also to be held that no lease exceeding one year is created by virtue of unregistered lease deed. The lease between the parties is a monthly lease and the term stipulated in the lease deed fixing the period of lease as 40 O.S.No.591/2010 & O.S.No.7843/2011 thirty (30) years will not be of any help to the defendant, as the same is inadmissible on account of non-
registration of the lease deed. In view of the above, the defendant cannot take advantage of the provisions of Section 53A of T.P.Act to protect his possession for 30 years.
Thus, the appeal filed by the defendant is devoid of merits and consequently, the same is liable to be dismissed. The appeal is accordingly dismissed.
However having regard to the fact that the defendant-appellant herein is running a Petrol Bunk over the suit schedule property, two years time is granted to him to quit vacate and deliver the vacant possession of the suit schedule property to the plaintiffs subject to condition of payment of rents regularly. Under the facts and circumstances of the case, the parties are directed to bear their own costs."
33. In ILR 2013 KAR 2697 in M/s.Archana Associates (R) v. Agamathraya Maha Mandala (R) it is held as under:-
"SUIT FOR EJECTMENT - Decreetal of - Appealed against - Grievance of the tenant is that lease agreement is for a period 30 years, the same was admitted by the owner of the premises and marked as an exhibit and the suit could not have been decreed -
Unregistered lease agreement -
Payment of duty and penalty on the 41 O.S.No.591/2010 & O.S.No.7843/2011 document - Legal effect - HELD, Since the only contention that the appellant seeks to place reliance on the lease agreement which was for a period 30 years in respect of the property was admitted and therefore, the suit could not have been decreed, the question is whether the Trial Court was bound to act on the admission by the plaintiff in this regard. - Admittedly, the document in question is an unregistered document and the same is compulsorily registerable - The appellant having paid the duty and penalty in respect of the document would not save the day for the defendant as the document was a compulsorily registerable document and want of registration would not be supplied by the payment of such duty and penalty. The only defect that is cured is the duty with penalty attracted under the Karnataka Stamp Act, 1957 was collected. This by itself would not enable the Court to act upon an unregistered document which was compulsorily registerable. Therefore, the same having been marked in evidence, would not advance the case of the appellant."
34. In AIR 1984 Supreme Court 143 Satish Chand Makhan and others Vs. Govardhan Das Byas and Others, it is held as under:-
"The unregistered lease deed cannot also be taken into consideration on the ground that such deed can be admitted in evidence for collateral purpose, invoking proviso to Section 49 of 42 O.S.No.591/2010 & O.S.No.7843/2011 Registration Act, as terms of lease are not a collateral purpose within its meaning. There being no change in the circumstances by virtue of such unregistered lease deed."
35. In ILR 2005 KAR 3587 Shanti Prasad Devi and another v. Shankar Mahto and Others wherein the Hon'ble Supreme Court of India has held as under:-
"The lessor in the instant case, had neither expressly nor impliedly agreed for renewal of lease. The renewal as provided in the original contract was required to be obtained by following a specified procedure i.e. on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. The said renewal clause in the contract prescribing a particular period and mode of renewal which was "an agreement to the contrary" within the meaning of Section 116. In the face of specific clauses in contract for seeking renewal there could be no implied renewal by "holding over" on mere acceptance of the rent offered by the lessee. Further, the option of renewal was exercised by lessee not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee over-stayed on the leased 43 O.S.No.591/2010 & O.S.No.7843/2011 premises. The lessee, in the above circumstances, could not claim that he was "holding over" as a lessee within the meanings of Section 116. On expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the leased premises cannot be said to be a conduct signifying "assent"
to the continuance of the lessee even after expiry of lease period. The order of ejectment passed against him would not be liable to be interfered with."
36. In view of the ratio laid down in the aforesaid decisions by the Hon'ble Supreme Court of India and our own Hon'ble High Court, though the Agreement of Lease dated.15.8.2000 is impounded after collecting deficit stamp duty and penalty from the defendants being tenants and got marked as Ex.D4 in this suit, yet the said document being unregistered is inadmissible in evidence and even it cannot be looked into for collateral purpose particularly, the clauses as pointed out by the defendants in the suit.
37. On the other hand, the counsel for the defendant has placed his reliance on commentaries on the Registration Act 1908, U/s.49 of the said Act which deals with the fact of non-registration of documents required to be registered.
44 O.S.No.591/2010 &
O.S.No.7843/2011 THE REGISTRATION ACT, 1908 "49. Effect of non-registration of documents required to be registered
- No document required by Section 17 (or by any provision of the Transfer of Property Act, 1882) to be registered shall -
(a) Affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered;
(Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be affected by registered instrument)"
38. In 2011 AIR SCW 4484 M/s. SMS Tea Estates Pvt.Ltd. v. M/s.Chandmari Tea Co.Pvt. Ltd. it is held that:
If deficit stamp duty and penalty was paid as contemplated in Ss.35, 40 of Stamp Act, Court may treat the document as duly stamped - If 45 O.S.No.591/2010 & O.S.No.7843/2011 that document was not compulsorily registerable, Court can act upon arbitration agreement without any impediment.
39. Whereas in the instant case in view of the cases referred to supra by the learned counsel for the plaintiff and under the circumstances of the case, the proviso to S.49 of the Indian Registration Act, 1908 will not be attracted to the facts and circumstances of the given case. Since the agreement to lease is compulsorily registerable document, the court cannot act upon the clauses 1 and 6 of the said agreement at Ex.D4 since there is an impediment to admit such document in the evidence in the instant case as held by the Hon'ble Supreme Court of India in the aforesaid decision reported in 2011 AIR SCW 4484 as referred by the counsel for the defendants itself.
40. As such, the plaintiffs in O.S.No.7243/2011 cannot enforce either Clause-1 or 6 of the unregistered Agreement of Lease in question as sought in O.S.No.7843/2011. Hence without much discussion, I hold that though the plaintiffs and defendant in O.S.No.7843/2011 have entered into Agreement of Lease 46 O.S.No.591/2010 & O.S.No.7843/2011 dated.15.8.2000, yet the defendants themselves could not have exercised option of renewal of Lease as per Clause-1 and 6 of the Lease Agreement. On the other hand, the defendant has also failed to prove that the plaintiffs in the said suit have sub-let the suit property and there was no Agreement for extension of Lease.
Whereas, the plaintiff in O.S.No.591/2010 has proved that the notice of termination of tenancy of defendants in respect of schedule property is duly terminated in accordance with the provisions as contemplated U/s.106 of Transfer of Property Act. For the reasons assigned supra, the Lease between the parties was to be extended for a further period of 9 years from 1.10.2009 only at the option of Lessor/plaintiff, but the defendants have no option at all for either extension or renewal of Lease for further period after efflux of time of initial Lease. Hence I answer Issue No.1 in O.S.No.591/2010 in the Affirmative, Issue No.2 in O.S.No.591/2010 in the Negative, Issue No.1 in O.S.No.7843/2011 in the Affirmative and Issue Nos.2 and 4 in O.S.No.7843/2011 in the Negative.
41. Issue Nos.3 and 5 in O.S.No.7843/2011:- The defendants have admitted the jural relationship of plaintiff and 47 O.S.No.591/2010 & O.S.No.7843/2011 defendants as tenants and landlord in respect of the suit schedule property. After efflux of time, the defendant has terminated the tenancy of the plaintiffs by issuing notice as per Ex.P1 and due to default on the part of the plaintiffs, the defendant has field O.S.No.591/2010 for ejectment and damages on 28.1.2010. The plaintiffs herein were appeared in that suit as defendants and filed their written statement and after thought, they sought for counter claim. But their prayer was rejected by order dated.14.8.2012 at Ex.D3. In view of my findings on Issue Nos.1 and 2 in this suit, when the defendant did not extend her option for either extending or renewal of Lease as per Clause-6 and then, absolutely there was no cause of action at all to the plaintiffs to file the instant suit for specific performance of Agreement to Lease dated.15.8.2000. Hence the plaintiffs are not at all entitled to the relief as sought against the defendant in respect of suit schedule property. Hence I answer both the issues in the Negative.
42. Issue No.3 in O.S.No.591/2010:- The plaintiff in O.S.No.591/2010 has sought for not only ejectment of defendants on 48 O.S.No.591/2010 & O.S.No.7843/2011 account of efflux of time or termination of tenancy, but also seeking direction to the defendants to pay the future mesne profits, damages for use and occupation at such rate as may be determined on enquiry by this court for the period subsequent to the termination upto date of delivery of possession of the schedule property as per clauses under Or.20, Rule 12 CPC. The plaintiff has not only pleaded but also deposed before the court that the defendant has sublet the schedule property to M/s. Good Things a company managed by Sri.Shashi Katiyar which is in exclusive possession of the ground floor for their business in garments. The defendants also sublet the mezzanine floor to M/s.Ali Sons Arts & Crafts who are doing business of their own therein and the defendants are collecting Rs.2,50,000/- from M/s. Good Things and Rs.1 Lakh from M/s.Ali Sons Arts & Crafts. The rate of rent prevailing in the locality as on the date of suit itself was more than Rs.3 lakhs. The defendants have merely denied not only sub- lease, but also damages as claimed by the plaintiff subsequent to termination of tenancy. As discussed supra, the defendants have been paying the rents/damages at enhanced rate in pursuance to the Agreement between the parties even after termination of tenancy till 49 O.S.No.591/2010 & O.S.No.7843/2011 June 2014 as it is evident from Ex.D5 to Ex.D9. The defendants have not adduced any evidence regarding TDS arising out of the said monthly amount credited to the account of the plaintiff on the ground that the plaintiff did not furnish PAN card number. Looking to the prime location of the schedule premises which is meant for commercial purpose, it is very much essential to hold an enquiry regarding mesne profits in respect of suit schedule premises from the date of suit, to the date of delivery of vacant possession of the schedule property to the plaintiff. However the defendants are at liberty to adjust the amount already paid through cheque to the plaintiff as against the actual mesne profits about to be determined after due enquiry. Hence without much discussion, I answer Issue No.3 in the Affirmative.
39. Issue No.4 in O.S.No.591/2010 and Issue No.6 in O.S.No.7843/2011:-
In view of my findings on Issue Nos.1 to 3 in O.S.No.591/2010 and Issue Nos.1 to 5 in O.S.No.7843/2011, in the result, I pass the qfollowing:-50 O.S.No.591/2010 &
O.S.No.7843/2011 ORDER The suit of the plaintiff in O.S.No.591/2010 is decreed with costs against the defendants as under:-
The defendants are directed to quit, vacate and handover vacant possession of the suit schedule premises to the plaintiff within three months from the date of this order.
There shall be a separate enquiry under Or.XX, R.12 of CPC for determining the mesne profits from the date of suit, to the date of delivery of vacant possession of the schedule premises to the plaintiff.
Consequently, the suit of the plaintiffs in O.S.No.7843/2011 is dismissed.
No order as to costs.
Draw up a decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 23rd day of February 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 51 O.S.No.591/2010 & O.S.No.7843/2011 A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff's side :
P.W.1: Smt. Geetha Krishnamurthy
(b) Defendant's side : N I L
D.W.1: Mr. Mohammed Haseeb
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Notice of termination
Ex.P.2 to 5: Four postal covers
Ex.P.6 & 7: Two UCPs.
Ex.P.8to 14: 7 photographs with 7 negatives
Ex.P.15: Reply dated 16.09.2009
Ex.P.16: Notice dated 20.11.2009
Ex.P.17 -19: Three postal acknowledgments
Ex.P.20: Postal cover
Ex.P.21: Receipts of Ali and sons
Ex.P.22: Receipts issued by goodthings
(b) Defendant's side :
Ex.D.1: Certified copy of Legal Notice dated
16.09.2009
Ex.D.2: Certified copy of the reply dated
26.09.2009
Ex.D.3: Certified copy of orders passed on
IA.No. IV in OS.No.591/2010
Ex.D.4: Agreement to Lease dated
15.08.2000
52 O.S.No.591/2010 &
O.S.No.7843/2011
Ex.D.5 & 6: Statement of accounts pertaining to
defendant Nos. 1 and 2
Ex.D.7 &8: Statement of accounts pertaining to
defendant Nos. 1 and 2
Ex.D.9: Original passbook issued by Vijaya
Bank
Ex.D.10: Copy of letter as per order dated
12.11.2014
Ex.D.10(a): Postal receipt
Ex.D.10(b): Postal acknowledgment
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
53 O.S.No.591/2010 &
O.S.No.7843/2011
(Judgment pronounced in open court)
The suit of the plaintiff in
O.S.No.591/2010 is decreed with
costs against the defendants as
under:-
The defendants are directed to
quit, vacate and handover vacant
possession of the suit schedule
premises to the plaintiff within three
months from the date of this order.
There shall be a separate
enquiry under Or.XX, R.12 of CPC for
determining the mesne profits from
the date of suit, to the date of
delivery of vacant possession of the
schedule premises to the plaintiff.
Consequently, the suit of the
plaintiffs in O.S.No.7843/2011 is
dismissed.
No order as to costs.
Draw up a decree accordingly
vide Judgment passed.
The original Judgment shall be
kept in O.S.No.591/2010 and its copy
shall be kept in clubbed
O.S.No.7843/2011.
XII ACCJ;Bangalore