Bangalore District Court
Sri.B.M.Anantha vs The Branch Manager on 30 March, 2022
1
Com.O.S.No.490/2020
In the Court of LXXXIV Additional City Civil and Sessions
Judge (CCH-85) (Commercial Court), Bengaluru
Dated this the 30th day of March 2022
Present: Smt.H.R.Radha B.A.L., LL.M.
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 Commercial Court) Bengaluru
Com.O.S.No.490/2020
Plaintiff Sri.B.M.Anantha, S/o Late B.V.Muniraju,
aged about 72 years, R/o #126, 3 rd Main,
5th Cross, Vinayaka Lathe defendantt,
Bhoopasandra, Bengaluru - 560 094
(By Sri.H.H.Shetty, Adv.)
Vs
Defendant The Branch Manager, The City Union
Bank Ltd., 13th Cross, Margosa Road,
Malleshwaram, Bengaluru - 560 003
(By Sri.Prakasha Hegde K., Adv.)
Date of Institution 19-10-2020
Nature of the suit Recovery of money
Date on which First Case
Management Hearing 07-12-2021
took place
Date of Commencement
of recording of evidence 11-08-2021
Date on which judgment 30-03-2022
pronounced
Time taken for disposal YEARS MONTHS DAYS
1) Total duration 01 05 11
2) From the date of first
case management 00 03 23
hearing
LXXXIV Addl. City Civil & Sessions Judge
(CCH-85 Commercial Court) Bengaluru
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Com.O.S.No.490/2020
JUDGMENT
This is a suit for recovery of Rs.31,80,850/- from the defendant towards arrears of rent together with interest and litigation expenses.
2. The above suit was transferred from CCH-32 to this court by notification dated 21-09-2021 at the stage of further evidence in chief of Pw1.
3. The plaintiff's case in brief is that the defendant was a tenant in respect of the ground floor of his property situated at 6th Cross, Malleshwaram measuring 2347 sq.ft. under lease agreement dated 12.12.2003 for a period of nine years. After expiry of the same, they entered into fresh lease deed dated 08.05.2013 for a further period of nine years commencing from 12.12.2012; the defendant had undertaken to pay rent of Rs.1,50,000/- p.m. with 15% enhancement on the last paid rent, once in every three years. The interest free security deposit of Rs.15,00,000/- was agreed to be refunded to the defendant, at the time of vacating the premises, after deducting the arrears and other charges at the time of delivery of vacant possession. The defendant paid rent at enhanced rate as agreed on the expiry of three years, but issued notice dated 14.11.2017 terminating the lease and stating that it will vacate the premises 3 Com.O.S.No.490/2020 by the end of February 2018. He called upon them to withdraw the same by legal notice dated 22.01.2018 but, the defendant issued reply dated 21.02.2018 seeking withdrawal of his notice. During the pendency of O.S.No.1632/2018 for declaration regarding notice of termination of the lease and permanent injunction restraining the defendant from vacating the premises, the defendant handed over the keys on 24.11.2019. As such he withdrew the said suit.
3(a). Though the defendant shifted from the leased premises in July 2018, the same was kept under lock and key without paying rent after March 2018. His notice dated 08.05.2018 demanding payment of Rs.4,52,849/- towards arrears of rent and other charges was not replied. On 18.02.2020, the defendant took the keys to remove the safe room and carry out re-plastering and painting of the walls of the premises and returned it only on 19.03.2020. As such, the defendant is liable to pay Rs.44,78,100/- towards arrears of rent for 22 months i.e., upto the date of handing over the key in the court on 24.11.2019 and Rs.2,03,550/- towards rent from 18.02.2020 to 19.03.2020 together with interest. He is entitled to adjust the security deposit of Rs.15,00,000/- towards the same and after such adjustment, the defendant would still be 4 Com.O.S.No.490/2020 liable to pay Rs.31,80,650/- towards arrears of rent. On service of his notice dated 11.06.2020 demanding payment of the same, the defendant has denied the liability by reply dated 18.06.2020.
4. The defendant has filed the written statement admitting entering into lease agreement dated 12.12.2003 and 08.05.2013 with the plaintiff, the rate of under the 2 nd agreement being Rs.1,50,000/- p.m. with Clause for enhancement by 15% every three years once; issuing two months notice on 14.11.2017 terminating the lease; the plaintiff filing O.S.No.1632/2018 challenging the same, after exchange of notice dated 22.01.2018 and its reply thereto. The defendant also admits handing over the keys before the court on 24.11.2019 and the plaintiff withdrawing O.S.No.1632/2018 thereafter, but contends that though it offered possession and the keys of the leased premises at the time of vacating the leased premises, the plaintiff refused to receive the same. After receiving the keys, the plaintiff insisted for re-plastering, repairing and painting work. Therefore, the same was carried out by spending Rs.3,50,000/- and during the said period possession of the property remained with the plaintiff. There is no cause of action of the suit and notice dated 16.06.2020 is suitably replied. The lease agreement on which plaintiff relies is property stamped 5 Com.O.S.No.490/2020 and it is liable to be impounded. The plaintiff has to refund Rs.15,00,000/- paid towards security deposit.
5. Based on the above pleadings, XX Additional City Civil and Sessions Judge, Bengaluru (CCH-32) framed the following issues on 11-08-2021:
ISSUES
1. Whether the plaintiff proves that, defendant bank violated the lease agreement dated 08-05-2013?
2. Whether plaintiff further proves that defendant is liable to pay rent for the whole period of lease agreement dated 08-05-2013?
3. Whether defendant proves that she spent Rs.3,50,000/- for painting and repairing of schedule premise?
4. Whether plaintiff is entitled for the recovery of amount as claimed?
5. What order or decree?
6. After the suit came to transferred to this court the plaintiff filed IA U/o XV Rule 5 CPC for deletion of issues 1 to 3. The same was allowed after contest by order dated 21.12.2021 and the issues came to be recasted as below:
RECASTED ISSUES
1. Whether the plaintiff proves that the defendant is liable to pay Rs.44,78,100/- 6
Com.O.S.No.490/2020 towards arrears of rent for 22 months as on 24-11-2019?
2. Whether the plaintiff proves that the defendant is liable to pay Rs.2,03,550/-
towards rent from 18-02-2020 to 19-03- 2020?
3. If yes, whether the plaintiff is entitled to adjust security deposit of Rs.15,00,000/- towards the same?
4. Whether the defendant proves that they have spent Rs.3,50,000/- for carrying out repairs and painting of the plaintiff's premises?
5. Whether the plaintiff is entitled for recovery of Rs.31,80,650/- with interest from the defendant?
6. What order or decree?
7. The plaintiff has filed affidavit in lieu of examination in chief, examined himself as Pw1 and got marked Ex.P1 to P12, P12(a). Ex.P13, P14 and P14(a) are got marked by confronting them to Dw1 during cross examination.
8. Manager of the defendant bank is examined as Dw1, but no documentary evidence is adduced by the defendant.
9. Heard the arguments.
10. My findings on the above recasted issues are:
Issue No.1: Partly in the affirmative 7 Com.O.S.No.490/2020 Issue No.2: In the negative Issue No.3: In the affirmative Issue No.4: In the negative Issue No.5: Partly in the affirmative Issue No.6: As per the final order for the following REASONS
11. Recasted Issue No.1: The learned counsel for the plaintiff argues that the defendant, though issued the notice at Ex.P1 stating that it will hand over vacant possession of the property by the end of February 2018, did not do so. It was requested to withdraw the notice of termination of lease vide Ex.P2 and to continue to pay the rent at the agreed rate in terms of Clause 6(b) of the agreement. However, on 21.02.2018 the defendant issued another notice at Ex.P3 claiming that it was entitled to terminate the lease by giving 180 days. Though the new premises was inaugurated only on 03.06.2018 as seen from Ex.P14 the defendant in fact shifted to that place only in July 2018 but kept the leased premises under lock and key. Since the keys were handed over only 24.11.2019 before the court, the bank is liable to pay rent for 22 months amounting to Rs.44,78,100/-.
12. Per contra, the learned counsel for the defendant argues that the lease was terminated by the end of 2018 vide Ex.P1. 8
Com.O.S.No.490/2020 The plaintiff, with the malafide intention of preventing the same filed O.S.No.1632/2018 before CCH-26 for declaration that Ex.P1 is illegal and injunction to restrain the defendant from vacating the premises. The defendant in the mean time had moved out of the premises. Just because the plaintiff refused to receive the keys, it had to be keep the same. Handing over the keys before the court on 24.11.2019 cannot be construed as the defendant continuing in the premises till such date and therefore, it cannot be held liable for rents for the period subsequent to vacating the premises.
13. Admittedly vide Ex.P1 dated 14.11.2017, the defendant intimated the plaintiff regarding termination of lease as also when the premises would be vacated. The plaintiff sought for withdrawal of the same by issuing notice dated 22.01.2018 at Ex.P2 contending that as per Clause 6(m), the tenant's right to determine the lease arises if damage or injury is caused to the leased premises due to fire, earthquake, riot and act of god or if the plaintiff prevented the bank from carrying on the business, due to changed circumstances such as Government Laws, guidelines, natural calamities by giving 180 days notice under Clause 9, but the defendant had no such occasion to terminate the lease.
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Com.O.S.No.490/2020
14. It is also pertinent to note that the plaintiff filed suit in O.S.No.1632/2018 for restraining the defendant from vacating the premises after receiving Ex.P1. He withdrew the suit only after the defendant filed the written statement and on handed over the keys before the court on 24.11.2019.
15. Ex.P3 dated 21.02.2018, the defendant intimated the plaintiff that they are ready to pay rent till expiry of 180 days from the date of termination of lease. Change in the requirement of the bank necessitating shifting to a new premises, in my considered opinion, certainly falls within the scope of Clause 9 of the agreement, as extracted in para No.3 of Ex.P2. Because it is an inclusive provision that does not limit the defendant's right to terminate the agreement only to the events narrated therein. Such being the case the plaintiff's argument that the defendant could not terminate the lease by issuing 180 days, holds no water.
16. By issuing Ex.P4 dated 08.05.2018 the plaintiff demanded for arrears of rent for March and April 2018 at the rate of Rs.2,03,550/- each and Rs.45,744/- being the difference towards enhanced rent on 27.10.2017, amounting to Rs.4,52,849/- in all and other maintenance charges towards utility, water and electricity consumption charges of the common area and other 10 Com.O.S.No.490/2020 amenities. But there is no whisper in Ex.P4 about the defendant continuing in the leased premises as on that day.
17. As per the defendant's suggestion they had offered to pay rent for 180 days notice period and plaintiff issued Ex.P4 in reply to Ex.P1 claiming arrears of rent of Rs.4,52,849/-. Pw1 admits the same as also the fact that he is no refunded security deposit. Ex.P9 is issued by the defendant in reply to the plaintiff's notice demanding Rs.35,88,750/-, wherein it is clearly stated that instead of receiving the vacant possession and refunding the advance after adjusting the rents payable, the plaintiff refused to be put in possession of the premises and filed a false suit.
18. The evidence of Dw1 is that the premises was repaired and painted at the request of the plaintiff on 18.02.2020 but, he refused to refund the security deposit, has remained unchallenged. Because there is no suggestion from the plaintiff's side either to deny or to dispute the same. Ex.P5 dated 11.06.2020 thus appear to have been issued with the intention of not returning the security deposit and after getting the premises repaired at the defendant's cost in February 2020. The claim of the plaintiff for rent upto the date he received the keys of the premises before the court, in my considered view cannot be sustained.
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Com.O.S.No.490/2020
19. In the above circumstances and from the Ex.P1, P4 and P9, it is clear that the defendant is in arrears of rent for 180 days only and not liable to pay rent for 22 months upto 24.11.2019. Dw1 admits that including GST at 18% p.a., the rent payable was Rs.2,03,550/- as per Ex.P13 dated 28.02.2018. Therefore, the plaintiff is entitled to recover Rs.12,21,300/- (Rs.2,03,550/- X 6) from the defendant and not Rs.44,78,100/- as claimed. Accordingly the issue for consideration is answered partly in the affirmative.
20. Recasted Issue No.4: There is no dispute that the defendant carried out re-plastering, painting work in the leased premises, between 18.02.2020 and 19.03.2020. The plaintiff accepted the keys of the leased premises from the defendant during the pendency of O.S.No.1632/2018 before CCH-26. The defendant's specific case is that they carried out the repairs at the plaintiff's request, when the possession of the premises with the plaintiff. The same has not been denied or disputed during Dw1's cross examination.
21. Further Dw1 categorically denies that the bank had taken the keys from the plaintiff on 18.02.2020 for the purpose of carrying out the repairs. As suggested by the plaintiff himself to Dw1, the defendant thus appears to have carried out the repair 12 Com.O.S.No.490/2020 work at the plaintiff's request, even though they had issued notice terminating the lease, vacated the premises and handed over the keys. Under such circumstances, the plaintiff's claim that the defendant should pay one month's rent relating to the period when it carried out the repair at his request, cannot be accepted. Therefore, the recasted issue No.2 is answered in the negative.
22. Recasted Issue No.4: The defendant contends to have spent Rs.3,50,000/- for carrying out repairs and towards painting the leased premises. Except the oral evidence of Dw1 to this effect, no documents such as vouchers, tax invoices, bills or audited account statements of the defendant, are produced to substantiate that a sum of Rs.3,50,000/- was spent for carrying out repair of the leased premises. In the absence of convincing and cogent evidence to substantiate such claim and also having regard to there being no counter claim for recovery of the said amount from the plaintiff or a claim for set off by the defendant, the recasted issue No.4 for consideration is answered in the negative.
23. Recasted Issue No.3: There is no dispute is that the defendant bank had paid security deposit of Rs.15,00,000/- to the plaintiff while taking the premises on lease and it is still with 13 Com.O.S.No.490/2020 the plaintiff. As averred in para No.3 of the plaint, the security deposit shall not carry any interest and it is refundable subject to deduction of arrears an other charges, at the time of getting vacant possession.
24. Order VIII Rule 3-A CPC as amended by Sec.16 of the Commercial Courts Act provides that denial by the defendant shall be in the manner provided in sub rules 2 to 5 of this rule. The proviso to first proviso to Rule 5 in sub Rule (1) of Order VIII CPC makes it clear that if an allegation in the plaint is not denied in the manner provided under Rule 3-A, the same shall be taken to be admitted, except as against the person under disability.
25. The defendant admittedly is not a person under disability and there is no specific denial of the plaint averments with regard to the plaintiff's entitlement to adjust the security deposit against the arrears if any. In fact as suggested to Pw1, the defendant had requested him to deduct 180 days rent and pay the balance security deposit vide reply at Ex.P9. Therefore, the evidence of Dw1 that the plaintiff shall refund the security deposit without deducting arrears of rent, is of no consequence. The plaintiff is entitled to deduct the arrears of rent from interest free security deposit of Rs.15,00,000/-. Accordingly recasted issue No.3 is answered in favour of the plaintiff. 14
Com.O.S.No.490/2020
26. Recasted Issue No.5: For the foregoing reasons and in view of the findings on issue No.1, 2 and 3, I am of the opinion that the plaintiff is entitled only to recover Rs.12,21,300/- towards the arrears of rent payable by the defendant and to deduct the same from the security deposit of Rs.15,00,000/-. Since the security deposit amount continues to be with the plaintiff. It was open for the plaintiff to deduct arrears payable from the same and to refund the balance, at the earliest point of time. Having not done so, the plaintiff cannot claim any interest on the arrears. Accordingly the recasted issue for consideration is partly answered in the affirmative.
27. Recasted Issue No.6: In the result, I pass the following ORDER Suit of the plaintiff is decreed in part.
The plaintiff is entitled for Rs.12,21,300/- from the defendant towards the arrears of rent. He shall deduct the same from the interest free security deposit of Rs.15,00,000/-.
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Com.O.S.No.490/2020
Having regard to the facts and
circumstances of the case, there is no order as to cost.
Draw decree accordingly.
Issue copy of the judgment to the parties through e-mail as provided U/o XX Rule 1 of CPC if mail ID is furnished.
(Dictated to the stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 30th day of March 2022) (H.R.Radha) LXXXIV Addl.City Civil and Sessions Judge, (CCH-85 Commercial Court) Bengaluru ANNEXURE List of witnesses examined for the Plaintiff:
Pw1 B. M. Anantha List of documents marked for the plaintiff:
Ex.P1 Letter/notice dated 14.11.2017
Ex.P2 Legal notice dated 22.01.2018
Ex.P3 Reply dated 22.02.2018
Ex.P4 Legal notice dated 08.05.2018
Ex.P5 Legal notice dated 11.06.2020
Ex.P6 & P7 Postal receipts.
Ex.P8 Postal acknowledgment.
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Com.O.S.No.490/2020
Ex.P9 Reply dated 18.06.2020
Ex.P10 Certified copy of the order sheet in
OS.1632/2018
Ex.P11 Letter dated 18.02.2020
Ex.P12 Bank statement to show that the last
rent was paid on 28.02.2018
Ex.P12 (a) Relevant entry
Ex.P13 Tax Invoice dated 28.02.2018
Ex.P14 Invitation Card
Ex.P14 (a) Invitation cover addressed to the plaintiff
List of witnesses examined for the defendant:
Dw1 Vivek List of Documents marked for the defendant: NIL (H.R.Radha) LXXXIV Addl.City Civil and Sessions Judge, (CCH-85 Commercial Court) Bengaluru.