Bangalore District Court
Sri. Nimbuja Devi Temple Trust (R) vs Sri. Neeraj Gupta on 17 February, 2022
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 17 th day of February 2022
PRESENT
Sri.Sabappa, B.Com., L.L.B (Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
ORIGINAL SUIT No.2258/2016
PLAINTIFF: Sri. Nimbuja Devi Temple Trust (R),
having its Office at No.94,
4th Floor, B.V.K. Iyengar Road,
Bangalore - 560 053,
represented by its
1. The President,
Sri. B.K. Venkatesha Jetty,
S/o Sri.B.K. Krishna Jetty,
Aged about 47 years,
R/at No.35, 5th 'A' Block,
Koramangala Layout,
Bangalore - 560 095.
2. The Secretary,
Sri. Jagannath A. Jetty,
S/o Sri. A. Ananthapadmanabha
Jetty, Aged about 42 years,
R/at No.25, Venkusahuja Lane,
Chickpet, Bangalore - 560 053.
(By Sri.A. Balakrishnan, Advocate)
2 O.S.2258/2016
Versus
DEFENDANT: Sri. Neeraj Gupta,
S/o N.D. Gupta,
Aged about 45 years,
R/at No.31, Jyothi Building,
B.V.K. Iyengar Road,
Bengaluru - 560 053.
(By Sri.J.K., Advocate)
Date of Institution 17-03-2016
Nature of suit Ejectment
Date of commencement of 17.09.2016
evidence
Date on which judgment was 17.02.2022
pronounced
Total Duration Years Months Days
05 11 00
JUDGMENT
This suit is filed for Ejectment and to pay the arrears of rent and Damages.
3 O.S.2258/20162. The brief facts of the case is that, the plaintiff is the absolute owner of the suit schedule property. The defendant has been a tenant under the plaintiff in respect of the suit schedule property on a monthly rent of Rs.6,000/- and the defendant has entered into an agreement of lease on 28.01.2009 commencing from 28.01.2009 for a period of 11 months. The defendant has paid a sum of Rs.1,00,000/- as security deposit which shall not carry any interest refundable on determination of the lease.
3. It is submitted that, though the defendant has been a tenant since 28.01.2009, the lease was extended from time to time on his request and as per the terms of the agreement of lease dated 28.01.2009, rate of rent shall be enhanced at 10% once in every 3 years and then existing rents and at the present rate of rent per month was at Rs.7,260/-. Even though the plaintiff has not instructed the defendant either orally or in writing to deposit the monthly rents to plaintiff's bank account, the defendant has been voluntarily depositing the monthly rent in the bank account of the plaintiff.
4. It is submitted that, the defendant has paid the monthly rents at the rate of Rs.7,260/- only up to December 2014 which has been deposited to the plaintiff's bank account. The defendant 4 O.S.2258/2016 is due rents from the month of January 2015 at the rate of Rs.7,260/- for a period of 12 months 22 days which goes to Rs.92,444/-. The defendant has become a chronic defaulter in the matter of payment of monthly rents. As per the lease agreement, if the defendant commit default in the payment of monthly rent payable on or before 5th of every succeeding month for a period of 3 consecutive months, the lease stands to be terminated and that the plaintiff is entitled to recover vacant possession of the suit schedule premises.
5. It is submitted that in view of default in payment of rent the plaintiff has terminated the tenancy of the defendant over the suit schedule property and thereby he has issued legal notice dated 22.01.2016 giving him 15 days clear notice to quit, vacate and deliver the vacant possession of the suit schedule property to the plaintiff and thereby plaintiff is claiming damages at the rate of Rs.1,00,000/- p.m for unauthorized use and occupation of the suit schedule property after determination of the tenancy over the suit schedule property and to vacate, hand over and deliver the vacant possession of the suit schedule property to the plaintiff. It is further submitted that, defendant has received the legal notice dated 22.01.2016. But defendant has not complied with the demand 5 O.S.2258/2016 notice nor he had replied. Hence, the plaintiff is constrained to file this suit against the defendant. The cause of action to file this suit arose on 28.01.2009, 1.01.2015 to 22.01.2016 and subsequently within the jurisdiction of this Court.
6. After receipt of the suit summons the defendant appeared through his counsel and filed his written statement contending that, the allegations made in para 2 of the plaint is not admitted the defendant. It is further submitted that the allegations made in para 3 of the plaint are vague and in correct and that Sri.Neeraj Gupta arraigned as defendant is not the tenant of the suit schedule premises and there is no landlord and tenant relationship between the plaintiff and the defendant. The allegations made in para 4 to 8 are false and baseless and there is no cause of action to file this suit.
7. It is the case of the defendant that,
1) The plaint has been filed by Sri.Nimbuja Devi Temple Trust ®, making allegations of being owner of the suit schedule property, without stating about the details of registration. It is stated that, as per the knowledge of the defendant and also in view of his enquiries, there is no such Trust by name Sri Nimbuja 6 O.S.2258/2016 Devi Temple Trust ®. No resolution is forthcoming neither any deed of trust. There was a letter by M/s. Gupta & Company on 02.02.2016, subsequent to the alleged notice of terminated dated 22.01.2016, whereunder, the details, as to the Trust, its decision/resolution as to the ejecting the tenants were sought for. The said letter dated 02.02.2016 has been suppressed by the plaintiff. There was a reply letter by one "The Bangalore City Jetty Community & Sree Nimbaja Devi Temple Trust (Regd.) stating among others as follows :
You have no right whatsoever to request for the details of one trust and its management and you have no business to contact any person of the trust nor any office bearers." This would only show that there is some foul play in filing the above suit by some unscrupulous persons to have wrongful gain.
2) It is pertinent to note that, both of the said letter dated 02.02.2016 and the said letter dated 08.02.2016 is suppressed reflecting upon the conduct of the persons, who are stated to be the representatives of the plaintiff Trust.
3) It is further submitted that one Anjali Devi Sarangi was occupying the first floor premises of the suit schedule premises as a tenant and she was owed an amount of Rs.1,20,000/- as the refundable securing deposit by the said Sree Nimbaja Devi 7 O.S.2258/2016 Temple Trust and as the Trust was not in a position to refund the same by itself, it was in search of a prospective tenant and the same was represented by its president Mr.B.S. Krishnamurthy. The said Krishnamurthy representing the said Trust approached Neeraj Gupta, the defendant, offering the said first floor premises on lease and the same was accepted by the defendant herein and the said Trust requested and directed payment of the said amount of Rs.1,20,000/- to the said earlier tenant, Anjali Devi Sarangi, to be considered as a security deposit by the defendant.
4) Accordingly, an amount of Rs.1,20,000/- was paid by way of cheque bearing No.767818, in favour of Anjali Devi Sarangi and a lease was executed between the said Trust and the defendant in respect of the first floor premises, as executed by Mr.B.S. Krishnamurthy, representing the said Trust, the rate of rent being Rs.9,000/- and Rs.1,20,000/- being the deposit.
5) There was second floor premises of the said property bearing No.94 as well, that was offered on lease. M/s. Gupta and Company represented by its partner, Sri. Narottam Das Gupta, came forward to take the premises for its business, but the premises was not suitable to be occupied by any tenant and there was also walls in between making the whole premises, comprising of small rooms, without any ventilation.
8 O.S.2258/20166) The said Trust as represented by the said Krishnamurthy, requested M/s. Gupta & Co., to make alteration and renovation to the said second floor premises of property making it worthy of being occupied by a tenant for the purpose of business and accordingly M/s. Gupta & Company spent Rs.8,20,000/- towards the alteration, face lifting, replacement of the wall with glass panels, breaking of the wall, also of interior room, to make the same as a big hall.
7) Accordingly, the second floor premises of the schedule property bearing NO.94, being plaint schedule property in thi s case was demised in favour of M/s. Gupta & Company.
8) It is also pertinent to note that M/s. Gupta & Company was also representing the defendant for making payment of Rs.15,000/- being the sum of Rs.6,000/- as rent towards second floor premises and Rs.9,000/- as rent towards first floor premises. Thus instituting the above plaint by making Neeraj Gupta as tenant and the defendant, without making the actual tenant, M/s. Gupta & Company, a defendant, is only mischievous, to have wrongful gain. It is submitted that in the month of March 2015, the said B.S.Krishnamurthy, the President of the said Trust, demised and there was no intimation of whatsoever nature, as to the successor in interest or in office as to said Trust, and the tenant 9 O.S.2258/2016 M/s. Gupta & Company got apprehensive as to the funds being misused and waited for the communication by the Trust, by the persons who succeed to the office of the Trust. In view of the above, there is no landlord and tenant relationship as between the plaintiff and the defendant. Therefore, there is no question of he being liable to make any payment of the rents nor being guilty of non-payment of rents nor could there arise any occasion for the landlord to issue notice for termination of tenancy over the suit schedule property. Hence, suit is liable to be dismissed.
8. On the basis of the above pleadings, my predecessor in office has framed the following issues.
1. Whether the plaintiff-Trust proves that it is the owner of the suit property and defendant is the tenant of the suit property under it?
2. Whether the plaintiff-Trust proves that there is valid termination of tenancy of defendant?
3. Whether the plaintiff-Trust proves that defendant is in arrears of rent of Rs.92,444/- from January-2015 to 22-01-2016?
10 O.S.2258/20164. Whether the plaintiff is entitled for damages of Rs. 1,00,000/- per month from 22/1/2016 till handing over of vacant possession of Suit Schedule Property by the defendant?
5. What Order/Decree?
9. In order to prove his case, the plaintiff got examined one Jagannath A. Jetty as PW.1 and got marked Exs.P.1 to P.10 and closed his side. In view of sufficient opportunity defendant has not adduced any evidence. Hence, evidence of defendant is taken as Nil.
10. Heard arguments on both sides.
11. On appreciation of the oral and documentary evidence on record, my answer to the above issues are as follows:
Issue No.1 : In the Affirmative, Issue No.2: In the Affirmative, Issue No.3 : In the Affirmative, Issue No.4 : Partly in the Affirmative, Issue No.5 : As per final order, For the following ;11 O.S.2258/2016
REASONS
12. ISSUES No.1 : The learned counsel for the plaintiff vehemently argued and submitted that, this suit is filed by the plaintiff for Ejectment and to pay arrears of rent and damages. The suit schedule property was let out by the plaintiff Trust to the defendant on a monthly rent of Rs.6,000/-. Lease agreement was entered into between the parties on 28.01.2009. It is further held that 10% increase in the rent once in every 3 years. The defendant has paid a sum of Rs.1,00,000/- as security deposit which shall not carry any interest. The defendant has deposited the rent to the account of the plaintiff without intimation. Later on defendant failed to pay the rent. Later on the plaintiff Trust has issued legal notice and terminated the tenancy of the defendant over the suit schedule property. The defendant has not replied the legal notice. It is further contended that, the defendant disputed the ownership of the plaintiff over the suit schedule property. It is further contended that M/s. Gupta and Company is not the tenant under the plaintiff Trust. Even after filing the suit the defendant has not deposited the rent. The defendant has not adduced any evidence in support of their claim in their written statement. The plaintiff Trust is able to prove the case with oral and documentary 12 O.S.2258/2016 evidence. The defendant has not testified the PW.1 by way of cross examination.
13. On perusal of the records, this Court has given sufficient opportunity to the defendant to cross examine PW.1 and submit his arguments. Inspite of it, the defendant has not cross examined PW.1. The defendant and his counsel is not diligent to submit the arguments.
14. In order to prove the case, the Secretary of the plaintiff Trust is examined as PW.1 and got marked Ex's.P.1 to P.10 documents. It is the case of the plaintiff that, the defendant is the tenant under the plaintiff Trust. The rate of rent of Rs.6,000/- was fixed to the suit schedule property. There was lease agreement between the parties. It commenced from 28.01.2009 for a period of 11 months. The defendant has paid a sum of Rs.1,00,000/- as security deposit which shall not carry any interest refundable on determination of the lease. In the year 2014 the rate of rent is Rs.7,260/- for a period of 12 months. Later on defendant has become chronic defaulter in payment of monthly rent. Therefore, the plaintiff has terminated the tenancy of the defendant by 13 O.S.2258/2016 issuance of legal notice against the defendant and filed the present suit.
15. In order to substantiate the plaint allegations, the oral evidence of PW.1 and documents marked in this case at Ex's.P.1 to P.10 are most important to discuss in this case. Before discussing the oral evidence of PW.1, I would like to refer the documents marked at Ex's.P.1 and P.2. These documents are khatha extract and khatha certificate. These documents clearly indicates that plaintiff Trust is the owner of the suit schedule property. The defendant contended in the written statement that plaintiff Trust is not the owner of the suit schedule property. Ex's.P.1 and P.2 are falsify the case of the defendant. In order to overcome Ex's.P.1 and P.2, the defendant is not able to place any authenticated documents. The oral evidence of PW.1 and Ex's.P.1 and P.2 are coupled with each other. Thereby, the presumption automatically arises that the plaintiff Trust is the owner of the suit schedule property as on the date of suit. Ex's.P.3 to P.5 are the legal notice, postal receipt and postal acknowledgment. These documents reveal that the plaintiff Trust has issued the legal notice on 22.01.2016 and terminated the tenancy of the defendant over the suit schedule property. It is duly served upon the defendant as per Ex.P.5. This fact is not disputed by the 14 O.S.2258/2016 defendant in the pleadings and evidence. One thing is clear that the plaintiff has complied the mandatory provisions U/Sec.106 of T.P.Act. In order to overcome Ex's.P.3 to P.5 the defendant is not able to place any material documents. The plaintiff Trust has clearly stated in the legal notice regarding lease agreement, rate of rent and defendant is the chronic defaulter in payment of rent etc., This fact is not denied by the defendant by way of reply notice nor oral or documentary evidence. In view of the documentary and oral evidence relied by the plaintiff Trust, I come to the conclusion that the plaintiff Trust is able to prove the ownership right over the suit schedule property as well as the termination of the tenancy right of the defendant over the suit schedule property. The remaining documents are photos, C.D, sale deed, resolution etc., These documents reveal that the plaintiff Trust called upon the meeting in order to take legal action against the defendant. The members of the Trust assembled and passed resolution stating that the defendant is a chronic defaulter in payment of rent. Thereby, they are going to initiate legal proceeding against the defendant. These documents are sufficient to hold that the plaintiff Trust has passed the resolution on 17.01.2016. The said resolution was passed in the presence of committee members. All the members have agreed to accept the 15 O.S.2258/2016 resolution and permitted the Secretary of the Trust to proceed against the defendant. These documents is sufficient to hold that the plaintiff Trust decided to take legal action against the defendant. It is presumed that the Trust has authorized the Secretary to proceed against the defendant for taking possession of the suit schedule property and recover the arrears of rent. In view of the documentary evidence the plaintiff Trust is able to prove the above Issue by oral and documentary evidence.
16. Now, I would like to refer the oral evidence of PW.1. PW.1 has categorically deposed on oath regarding the facts of the case. On perusal of the entire oral evidence of PW.1 one thing is clear that the defendant has not testified the PW.1 by way of cross examination. It is no doubt in the year 2008 one Sri.B.S.Krishnamurthy was the President of the plaintiff Trust. He has executed the lease agreement. Later on another person was elected as a President of the plaintiff Trust. This aspect is going to show that the defendant is not able to demonstrate regarding the contention taken in the written statement.
17. On going through the entire evidence and documents relied by the parties, I have come to the conclusion that the 16 O.S.2258/2016 plaintiff Trust is able to prove the above Issue with cogent and documentary evidence.
18. On the other hand, on perusal of the records, the very defendant has filed an application under Order 6 Rule 17 of CPC. Later my predecessor in office passed the necessary order. The application filed by the defendant is rejected. The defendant has filed another application under Order 14 Rule 5 of CPC. The plaintiff has filed objection statement to the said application and later my predecessor in office passed the necessary order and rejected the application filed by the defendant. The defendant filed another application under Order 3 Rule 1 & 2 of CPC. The plaintiff filed objection statement. Later my predecessor in office passed necessary order and rejected the application filed by the defendant under Order 3 Rule 1 & 2 of CPC. The defendant has challenged I.As.No.4 and 6 before the Hon'ble High Court of Karnataka in Writ Pet.No.12425/2018 and 12426/2018. After hearing the both sides, the Hon'ble High Court of Karnataka has rejected the Writ petition filed by the defendant. It has observed that, "the impugned order that the Court may not go into the subject matter of the issue as to the authority of the concerned persons need not detain it from again looking into the same during 17 O.S.2258/2016 the hearing of the suit." In view of the order passed by the Hon'ble High Court of Karnataka, one thing is clear that, the defendant is not succeeded in the writ petition. More over, this Court has given sufficient opportunity to the defendant to proceed with the case by leading evidence. Inspite of it, the defendant is not diligent to proceed with the case. It clearly goes to show that the defendant is not able to prove the case with oral and documentary evidence. In view of the entire records, oral and documentary evidence relied by the plaintiff trust, I come to the conclusion that the plaintiff trust is able to prove Issues No.1 and 2 with cogent and documentary evidence. On the other hand, the defendant is not able to demonstrate the case with oral and documentary evidence. Hence, I answer Issues No.1 and 2 in the Affirmative.
19. Issue No.3 :- It is the case of the plaintiff that defendant has to pay arrears of rent of Rs.92,444/- from January 2015 to 22.01.2016. This fact is stated by the plaintiff in the pleadings and evidence. On the other hand, the learned counsel for the defendant has not testified the PW.1 by way of cross- examination. He has never disputed about the arrears of rent nor he has made any attempt that the defendant has deposited the amount nor he is not liable to pay any amount to the plaintiff trust.
18 O.S.2258/2016In view of evidence of PW.1 and documents, one thing is clear that the defendant is liable to pay arrears of rent as claimed by the plaintiff trust in this suit. The same is proved by the plaintiff trust by oral and documentary evidence. Hence, I answer Issue No.3 in the Affirmative.
20. Issue No.4 :- The plaintiff is claiming damages of Rs.1,00,000/- per month from 22.01.2016 till handing over of vacant possession of the suit schedule property by the defendant. In order to substantiate the same, the oral evidence of PW.1 and documents are very much necessary to discuss in detail. There is no impediment on the plaintiff trust to place any documentary evidence to show that the suit schedule property will fetch rent of Rs.1,00,000/- per month or any property adjacent to the suit schedule property has been let out by some others by taking rent of Rs.1,00,000/- p.m etc., There is no such documents on the side of the plaintiff trust. Mere pleadings is not enough to prove the same. It requires oral and documentary evidence. On perusal of Ex's.P.1 to P.10 there is no such documents placed by the plaintiff to prove that if the suit schedule property is let out to somebody, it will fetch rent of Rs.1,00,000/- p.m etc., Thereby at the most the the plaintiff trust is entitled to recover the damages from the 19 O.S.2258/2016 defendant an amount of Rs.15,000/- p.m from January 2016 till handing over the vacant possession of the suit schedule property. Thereby, I come to the conclusion that the plaintiff trust in not able to made out sufficient grounds that the suit schedule property will earn rent at the rate of Rs.1,00,000/- per month. In view of the above discussion, I come to the conclusion that the plaintiff trust at the most is entitled to damages at Rs.15,000/- p.m from the defendant. It is no doubt, after termination of the tenancy of the defendant over the suit schedule property, possession of the defendant is unauthorized possession. Thereby, defendant shall pay damages to the plaintiff trust. In view of the above discussion, I answer Issue No.4 Partly in the Affirmative.
21. Issue No.5: In view of my findings on Issue No.1 to 4, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed with cost.
The defendant is directed to vacate, quit and hand over the vacant possession of the suit schedule property to the plaintiff within 3 months from the date of this order.20 O.S.2258/2016
It is further ordered that the defendant shall pay arrears of rent of Rs.92,444/- from January 2015 to
22.01.2016 for a period of 12 months within 3 months from the date of this order.
It is further ordered that defendant shall pay damages at the rate of Rs.15,000/- p.m from 23.01.2016 till handing over the vacant possession of the suit schedule property.
It is further ordered that Rs.1,00,000/- security deposit is adjusted towards arrears of rent, in case defendant fails to pay the arrears of rent.
(Dictated to the Stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court on this the 17 th day of February, 2022) (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
21 O.S.2258/2016ANNEXURE WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
PW.1 Jagannath A. Jetty DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:
Ex.P1 Katha extract, Ex.P2 Katha certificate, Ex.P3 Copy of the legal notice, Ex.P4 Postal receipt, Ex.P5 Postal acknowledgment, Ex.P6 Two photos Ex.P7 Certified copy of the sale deed Ex.P8 By-law book of plaintiff's Trust Ex.P9 Certified copy of the resolution Ex.P10 Minutes of meeting book
WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT:
-- NIL --22 O.S.2258/2016
DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANT:
-- NIL --
(SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.23 O.S.2258/2016
JUDGMENT PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE ORDER The suit of the plaintiff is hereby decreed with cost.
The defendant is directed to vacate, quit and hand over the vacant possession of the suit schedule property to the plaintiff within 3 months from the date of this order.
It is further ordered that the defendant shall pay arrears of rent of Rs.92,444/- from January 2015 to 22.01.2016 for a period of 12 months within 3 months from the date of this order.
It is further ordered that defendant shall pay damages at the rate of Rs.15,000/- p.m from 23.01.2016 till handing over the vacant possession of the suit schedule property.24 O.S.2258/2016
It is further ordered that Rs.1,00,000/-
security deposit is adjusted towards arrears of rent, in case defendant fails to pay the arrears of rent.
LXVIII A.C.C & S.J, Bengaluru City.