Bangalore District Court
M/S Srinivasa Enterprises Rep By Its Co ... vs D R L Logistics Pvt Ltd on 28 August, 2024
KABC010245392021
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 28th day of August 2024
Present:
Sri.Sirajuddeen A., B.A., LL.B.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.6124/2021
Plaintiffs: M/s.Srinivasa Enterprises,
A co-ownership entity
represented by its co-owners:
1. Sri.S.N.Srinivasamurthy,
S/o.Late S.D.Narayanasa,
Aged about 80 years;
2. Sri.S.N.Shivashankar,
S/o.Late S.D.Narayanasa,
Aged about 77 years;
3. Sri.S.S.Dhondasa,
S/o.S.N.Srinivasa Murthy,
Aged about 53 years;
4. Sri.S.S.Shiva Kumar,
S/o.S.N.Srinivasa Murthy,
Aged about 48 years;
5. Sri.S.S.Sathya Murthy,
S/o.Sri.S.N.Shiva Kumar,
Aged about 52 years;
2 O.S.No.6124/2021
6. Sri.S.S.Mahusudhan,
S/o.S.N.Shivashankar,
Aged about 46 years;
7. Sri.S.S.Vinayaka,
S/o.S.N.Shivashankar,
Aged about 42 years;
Having office at No.10,
6th Main, 2nd Cross,
Gandhingara,
Bengaluru-560 009.
(By Sri.V.Ramesh Babu,
Advocate.)
/VS/
Defendant: D.R.L.Logistics Pvt. Ltd.,
Having its office at
No.33, Komal Mansion,
M T B Road, Near Minerva Circle,
Bengaluru-560 002.
(By Sri.H.R.Sunil Kumar,
Advocate.)
Date of Institution of
the suit: 15.11.2021
Nature of suit: Ejectment.
Date of commencement
of recording of evidence: 11.01.2024
Date on which
Judgment pronounced: 28.08.2024
Total Duration: Years Months Days
02 09 13
(Sirajuddeen A.),
XX Addl. City Civil & Sessions Judge,
Bengaluru.
3 O.S.No.6124/2021
JUDGMENT
Plaintiff instituted this suit against defendant for eviction/ejectment, arrears of rent and also payment of damages in respect to subject matter of the suit.
2. The subject matter of the suit (herein after called as 'schedule property') is all that piece and parcel of shop premises in ground floor of the building bearing No.10, BBMP PID No.47-61-10, Kumbaragundi Road, New Kalasipalyam Extension, Bengaluru comprising approximately 600 Sq. ft. of floor area. Plaintiff described the suit property in the schedule of the plaint.
3. The case of the plaintiff is that, plaintiff is the lessor of the schedule premises to the defendant. Defendant paid the security deposit of a sum of Rs.30,000/- to the plaintiff. The rents were by way of cheques in the name of plaintiff. There was an unregistered lease deed between the plaintiff and defendant. The defendant was treated as a tenant on month to month tenancy commencing on the first day of each month of the English calendar since the said document is invalid. The rents were enhanced from time to time. Prior to the filing of the suit, the monthly rent of the schedule premises was Rs.14,999/-. The defendant was highly irregular in paying rents. The 4 O.S.No.6124/2021 defendant did not pay rents to the plaintiff from the month of March, 2018. Plaintiff made several requests to defendant for making payment of arrears of rent, but defendant not made payment of arrears of rent. Hence, plaintiff terminated the tenancy of the defendant by issuing legal notice dated 12.08.2021 calling upon the defendant to quit and deliver vacant possession of the schedule premises within a period of 15 days from the service of notice. Said notice was also issued to the office address of the defendant through registered post with acknowledgment due. The said notices were returned with an endorsement "Refused". The plaintiff also got affixed the notice at the schedule premises.
4. Plaintiff further pleaded that, defendant is liable to pay arrears of rent from the month of March, 2018 till August 2021 when the tenancy was terminated. Defendant is also liable to pay damages at the rate of Rs.30,000/- p.m. for its illegal use and occupation from 29.08.2021 till it delivers vacant possession of the schedule premises to the plaintiff.
5. Plaintiff further also pleaded that, the defendant is liable to pay Rs.6,14,959/- as arrears of rent at Rs.14,999/- from March 2018 to August 2021. Further defendant is liable to pay damages of Rs.70,000/- from September 2021 till date. Plaintiff pleaded for an enquiry under Order XX Rule 12 CPC to determine the 5 O.S.No.6124/2021 damages for illegal use and occupation of the defendant. Hence, the suit.
6. This court issued the summons to defendant. The said summons was served on defendant. Defendant has appeared before this court and filed its written statement contending that, suit of the plaintiffs is not maintainable either on law or on facts. Defendant has admitted with regard to jural relationship of landlord and tenant, payment of security deposit of Rs.30,000/- and there was an unregistered lease deed between the parties. Defendant denied that the monthly rent prior to the filing of the suit was Rs.14,999/-.
7. Defendant has submitted that, suit schedule premises was let out by the plaintiff through unregistered lease agreement entered between M/s.Srinivasa Enterprises and M/s.Deluxe Road lines on 18.2.1993. Thereafter the defendant taken over and purchase the entire assets and business from M/s.Deluxe Road Lines, continuing tenancy in the schedule premises. Plaintiffs are only collecting rents and they have no title to show the absolute ownership towards the schedule premises. The plaintiffs do not have any locus-standi to file the present suit as they do not have any valid, legal and absolute title over the suit schedule property. One Mr.Gowda used to come and 6 O.S.No.6124/2021 collect the rent on behalf of plaintiff and other plaintiffs have nowhere connected to the schedule premises.
8. Defendant further submitted that, defendant has invested Rs.20,00,000/- for set up Godown, office and other development of works in the schedule premises and the plaintiffs have suppressed the said fact. In the schedule premises since more than 30 employees are working, it is difficult to vacate the premises immediately. Plaintiffs have filed the suit to harass the defendant with an ulterior motive to evict the defendant from the suit schedule property.
9. In the light of the above said rival pleadings of both parties, this court has framed the following issues:
1. Whether the plaintiffs prove that, defendant is not regular in paying rents and did not pay rents to the plaintiff from the month of March 2018?
2. Whether the plaintiffs further prove that, they have terminated the tenancy by issuing notice on 12.8.2021 to the defendant?
3. Whether the plaintiffs prove that they are entitled to the damages as set out in the plaint?
4. Whether plaintiffs are entitled to the reliefs claimed in the plaint?
5. What order or decree?7 O.S.No.6124/2021
10. The burden of proving of Issue No.1 to 3 is on plaintiffs and in order to discharge the said burden, one of the auhtorised representee of plaintiff examined himself as P.W.1 and also produced the documentary evidence marked at Ex.P.1 to P.4.
11. Ex.P.1 is a office copy of legal notice dated 12.08.2021, Ex.P.2 is the unserved legal notice with envelope and AD card, Ex.P.3 is the another unserved legal notice with postal envelope and acknowledgement card, Ex.P.4 is the 2 photos with 65-B Certificate.
12. Defendant in order to discharge the implied onus cross-examined P.W.1 and one of the Director of the defendant company is examined himself as D.W.1 and not produced any documentary evidence.
13. During the proceedings, I.A.No.I & II are filed and the same are disposed off in accordance with law.
14. Heard the arguments of learned counsel appearing for both parties. The counsel for the plaintiffs relied the following citations:
1. AIR 1960 SC 1373 MANU/SC/0259/1960 in the case of Mineral Development Ltd., Calcutta -Vs-
Union of India (UOI);
2. AIR 1976 SC 2335 MANU/SC/0473/1976 in the case of Ram Pasricha -Vs- Jaganna & Others;
3. AIR 1981 SC 1284 MANU/SC/0576/1981 in the case of Haricharan Singh -Vs- Shivrani;
8 O.S.No.6124/20214. MANU/KA/0193/1982 in the case of Ganapathi Rao S.R. -Vs- Puttamma;
5. AIR 2016 SC 2250 MANU/SC/0524/2016 in the case of Muddasani Venkata Narasaiah -Vs- Muddasani Sarojana;
6. AIR 1968 SC 1413 MANU/SC/0168/1969 in the case of Gopal Krishnaji Ketkar -Vs- Mahomed Haji Latif and others;
7. (2022) 8 SCC 527 MANU/SC/0822/2022 in the case of Martin & Harris Pvt Ltd. -Vs- Rejendra Mehta.
15. I carefully perused the pleadings of both parties, oral evidence adduced and documentary evidence produced.
16. My answers and findings to the above issues are as follows:
Issue No.1- In the Affirmative; Issue No.2- In the Affirmative; Issue No.3- Partly in the Affirmative; Issue No.4- Partly in the Affirmative; Issue No.5- As per the order passed for the following:
REASONS
17. Issue No.1 & 2: These issues are taken together for common discussion to avoid repetition of facts and evidence.
9 O.S.No.6124/2021The grievance of the plaintiff is that, though it has terminated the tenancy by issuing legal notice, defendant neither vacated the suit property nor paid arrears of rent and other dues and they illegally using and enjoying the suit property and therefore, he is liable for payment damages.
18. Plaintiff filed this case against the defendant for ejectment and direction to the defendant to pay arrears of rent of Rs.6,14,959/-, damages of Rs.70,000/- p.m. from September 2021 till date. Defendant admitted the payment of security deposit of Rs.30,000/- and also admitted that there was an unregistered lease deed between the plaintiff and defendant and hence, the defendant was treated as a tenant on month to month tenancy. But, the defendant denied the plaint averments with regard to month rent prior to filing the suit was Rs.14,999/- and further denied the issuance of termination notice dated 12.08.2021 and also delivered the ownership of the plaintiff over the suit schedule property. Defendant further contended that, one Mr.Gowda used to collect the rent on behalf of plaintiff and further contended that defendant has invested Rs.20,00,000/- for set up Godown, office and other development works in the schedule premises.
10 O.S.No.6124/202119. In order to prove the case of the plaintiff one Shivaram was examined as P.W.1 and produced the documentary evidence marked at Ex.P.1 to Ex.P.4. The defendant though denied the rate of monthly rent was Rs.14,999/- prior to the filing of the suit, defendant nowhere whispered about what was the monthly rent prior to filing of this suit. He evasively denied the contents of plaint and contended that Mr. Gowda was used to collect the rent on behalf of the plaintiff. The defendant nowhere stated which Gowda collected rent and what amount he collected and not produced any document in this regard. Defendant contended that he has paid in cash. In this regard one question was posed to D.W.1 that whether since you are incorporated company, whether you have declared in audited account. The D.W.1 answered that he has to check whether he has declared the audit account. However, he has not produced any audited account in this case.
20. Counsel for the plaintiff argued that, the tenancy is month to month basis. The jural relationship and tenancy by month to month as admitted by the defendant. Hence, the jural relationship is established by pleadings. Counsel for the plaintiffs further argued that Section 20 of Companies Act provides for service of documents and as per Section 20, he issued the termination notice to the defendant to the registered office. Defendant has not challenged the documents produced by the plaintiff. Only bare denial and no co-
11 O.S.No.6124/2021relation between defence and cross-examination, nowhere either in chief affidavit or in the cross- examination, he has stated how much amount was paid.
21. Counsel for the plaintiff further argued that, as per Section 116 of Indian Evidence Act, there is an estoppel on tenant that no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.
22. He further argued that, since the defendant refused to receive the termination notice, which was returned as "refused" and hence, it is deemed to be served. Plaintiff is also entitled for the damages/mesne profits equivalent to market rate.
23. The defendant argument is taken as heard. By perusal of pleadings and documents, it reveals that there is no dispute with regard to the landlord and tenancy relationship as the defendant admitted the same. The dispute is whether there is arrears of rent and the plaintiff has validly terminated the tenancy. The defendant has not produced any document to show that he has paid upto date rent and not produced any document to show that he had invested Rs.20,00,000/-
12 O.S.No.6124/2021towards set up go-down, office and other development works in the schedule property.
24. The counsel for the plaintiff argued that eventhough the plaintiff is not an absolute owner, the suit for ejectment is maintainable and he relied the para No.5 of citation of Hon'ble Supreme Court reported in MANU/SC/0259/1960 in Civil Appeal No.231/1955 between The Mineral Development Ltd., Calcutta Vs. The Union of Inda (UOI) and others, wherein it has been held that, "There is no specific mention of a sub-lease in it. But if one takes the plain meaning of the words used in s. 3(d), it is clear that the term 'mining lease' means any kind of lease granted for the purpose of searching for, winning, working, getting, making merchantable, carrying away or disposing of minerals or for purposes connected therewith. It is significant that the definition does not require that the lessor must be the proprietor; and so on a fair reading it would include a lease executed by the proprietor as much as a lease executed by the lessee from such a proprietor. If we turn to the definition of 'lease ' in s. 105 of the Transfer of Property Act, we find that a lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. What a lease therefore requires is a 13 O.S.No.6124/2021 transferor and a transferee and a transfer of immovable property on the terms and conditions mentioned in s. 105. How the transferor gets his title to make a lease is immaterial so long as the transaction is of the nature defined in s. 105. Applying therefore the plain words of s. 3(d) of the Act and the definition of lease as contained in s. 105 of the Transfer of Property Act, it is perfectly clear that there is a transferor in this case, (namely, the appellant) and a transferee (namely, Bhagat Singh) who has accepted the transfer; the transaction is with respect to immovable property and creates a right to enjoy such property for a certain term and for consideration on the conditions mentioned in it. Though, therefore, the document may be termed a sub-lease in view of the fact that the transferor is not the owner of the property transfer-red but is itself a lessee, the transaction between the appellant and Bhagat Singh is nothing but a mining lease. The terms ' sub-lease', ' under- lease' and "derivative lease ' are used conveniently to indicate not only that the transfer is a lease but also that the transferor is not the owner of the property but is a lessee; but the transfer as between a lessee and a sub-lessee is nonetheless a lease provided it satisfies the definition of s.
105. We may add that Ch. V of the Transfer of Property Act, which deals with leases of immovable property has nowhere made any distinction between a lease and a sub-lease and all the provisions of that Chapter which apply to a lease also apply to a sublease. It is only when dealing with the rights and liabilities of the lessee that s. 108(j) of the Transfer of Property Act lays down that the lessee may transfer absolutely or by way of mortgage or sub- lease the whole or any part of his interest in the property, and that is 14 O.S.No.6124/2021 where one finds mention of a sub-lease, namely, that it is a lease by a person who is himself a lessee. But the fact that the lessor is himself a lessee and the transaction between him and the person in whose favour he makes the transfer by way of lease is called a sub-lease does not in any way change the nature of the transfer as between them. Therefore on the plain words of s. 3(d) read with s. 105 of the Transfer of Property Act there can be no doubt that the term 'mining lease' includes a sub-lease.' He also relied citation in Civil Appeal No.1223 of 1975 between Ram Pasricha Vs. Jagannath and others of Hon'ble Supreme court of India, wherein it has been held that, There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth, at the earliest opportunity. It was not done. Secondly, the relation be- tween the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit it estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such.
15 O.S.No.6124/2021He also relied citation in Civil Appeal No.1402 of 1979 between Harcharan Singh Vs. Shivrani and others of Hon'ble Supreme court of India, wherein it has been held that, Section 27 of the General Clauses Act, 1897 deals with the topic 'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, pre-paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without any thing more. Similar presumption is raised under Illustration (f) to s. 114 of the Indian Evidence Act whereunder it He also relied citation in Civil Appeal No.1402 of 1979 between Harcharan Singh Vs. Shivrani and others of Hon'ble Supreme court of India, wherein it has been held that, is stated that 16 O.S.No.6124/2021 the Court may presume that the common course of business has been followed in h a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under s. 27 of the General Clauses Act as well as under s. 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under s. 27 of the General Clauses Act as well as under s. 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do 17 O.S.No.6124/2021 not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed. with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under s. 27 of the General Clauses Act, 1897 and s. 114 of the Indian Evidence Act.
He also relied another citation in CRP No.2677 of 1982 between Ganapathi Rao S.R. Vs. Puttamma of Hon'ble High Court of Karnataka, wherein it has been held that, In the normal course, when the tenant pleads satisfaction of arrears of rental, the burden of proving satisfaction is on him. The Act has come into force in the year 1961 and it make provision for taking action against the landlord if he does not issue receipt on receiving the rent. It makes it incumbent on the landlord to issue receipts for the rents received by him. If for three long years, the tenant went on paying the rents and the landlord did not issue receipts, it is normal to infer that the tenant either would have stopped payment to the landlord or the landlord did issue receipts. If the landlord did not issue receipts. In the circumstances, therefore, the mere plea of satisfaction, without more, of the tenant, on the facts of the case, could not be upheld and believed. The learned Civil Judge has done so it is highly illegal.
25. In this case plaintiff issued termination notice to the defendant as per Ex.P.1 to P.3. It was returned as "Refused". It was issued to the registered office 18 O.S.No.6124/2021 address. The citation relied by the plaintiff is aptly applicable to this case. By considering the facts and circumstances of the case and also citations relied by the counsel for the plaintiff, this court finds that, defendant is not regular in paying the rents and did not paid rents to the plaintiff from the month of March issuing notice on 12.8.2021 to the defendant. Accordingly, Issue No.1 and 2 are answered in the Affirmative.
26. Issue No.3: Plaintiff claiming damages at Rs.30,000/- per month from defendant as he is in schedule property as an unauthorized occupant. According to the plaintiff the tenancy of the defendant in respect of schedule premises has been terminated by issuing notice dated 12.8.2021 under Ex.P.1 to P.3 as required under Section 106 of T.P. Act, wherein it is clearly stated that, tenancy of the defendant has been terminated upon the expiry of 15 days from the date of receipt of the notice. As already discussed above, the service of notice proved. As admitted by the plaintiff, the monthly rent prior to filing of this suit was Rs.14,999/-. Plaintiff seeks Rs.30,000/- as damages. The counsel for the plaintiff argued that, landlord is entitled to reasonable mesne profit/damages/ compensation equivalent to the market rent.
19 O.S.No.6124/202127. The plaintiff filed this suit in the year 2021 as admitted by plaintiff the rent was Rs.14,999/-. Escalated percentage of rent has to be added to that rent. Hence, this court finds that the amount of Rs.18,000/- can be determined as damages per month. Accordingly, Issue No.3 is answered partly in the Affirmative.
28. Issue No.4: Plaintiffs seeking recovery of arrears of rent, damages and also eviction of defendants from the schedule premises. On the other hand, plaintiff seeking for an enquiry under Order XX Rule 12 CPC to determine the damages for illegal use and occupation of the schedule premises by the defendant from 13.8.2018 till the defendant vacate and hand over vacant possession of the schedule premises to the plaintiff.
29. It is their case that, defendant who being the tenant to the schedule premises not paid the rents as per the terms of Rent Agreement. In this regard, this court while answering issue No.1 and 2 held that, as on the date of filing of the suit, there was an arrears of rent of Rs.6,14,959/- and also damages of Rs.18,000/- p.m. hence, defendant is liable to quit and vacate the schedule premises and to deliver the vacant possession of the same to the plaintiffs.
20 O.S.No.6124/2021Since this court comes to conclusion that defendant is liable to pay damages of Rs.27,000/-, enquiry under Order XX Rule 12 CPC to determine the damages for illegal use and occupation of the schedule premises by the defendant does not arise. Accordingly, my answer to Issue No.4 is partly in Affirmative.
30. Issue No.5: Hence, In view of my observations as aforesaid, I proceed to pass the following ORDER Suit of the plaintiff is hereby decreed partly with costs.
Defendant is hereby directed to vacate the suit property and deliver its vacant possession to the plaintiff within two months from today.
Plaintiff is entitled to recover arrears of rent of Rs.6,14,959/- from the defendant from March 2018 to August 2021.
Further plaintiff is also entitled to recover Rs.18,000/- per month as damages from the defendant from September 2021 till delivery of vacant possession of suit property.
21 O.S.No.6124/2021Draw decree accordingly.
(Dictated to the Judgment Writer on computer, computerised by her, corrected and then pronounced by me in open court on the 28th day of August 2024.) (Sirajuddeen A.) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the Plaintiff:
PW.1 : Sri.S.S.Madhusudhan.
List of documents marked for the Plaintiff:
Ex.P.1 Office copy of legal notice dated 12.8.2021.
Ex.P.2 Unserved legal notice with postal envelope and acknowledgment card.
Ex.P.3 Unserved legal notice with postal envelope and acknowledgment card.
Ex.P.4 2 Photos with 65-B certificate.
List of Witnesses examined for defendant:
D.W.1 : Sri.Rahul K.Dharamshi.
List of documents marked for defendant: Nil.
(Sirajuddeen A.) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.22 O.S.No.6124/2021 23 O.S.No.6124/2021
Judgment pronounced in the open court(vide separate judgment).
ORDER Suit of the plaintiff is hereby decreed partly with costs.
Defendant is hereby directed to vacate the suit property and deliver its vacant possession to the plaintiff within two months from today.
Plaintiff is entitled to recover arrears of rent of Rs.6,14,959/- from the defendant from March 2018 to August 2021.
Further plaintiff is also entitled to recover Rs.18,000/- per month as damages from the defendant from September 2021 till delivery of vacant possession of suit property.
Draw decree accordingly.
XX Addl. C.C & S.J, Bengaluru.24 O.S.No.6124/2021 25 O.S.No.6124/2021