Bangalore District Court
Sri. P.Thrimurthy vs M/S. Bindu Labels Private Limited on 19 August, 2021
IN THE COURT OF LVII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH58)
Present:
Smt. K.G.Shanthi, B.Com, LL.M.,
LVII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
Dated this the 19th day of August, 2021.
Original Suit No.25348/2016
Plaintiff: Sri. P.Thrimurthy,
S/o. Sri. Puttanarayanappa,
Aged about 39 years,
R/at No.42, Gopi School Road,
Kamakshipalya,
Bangalore560 079.
(By Sri. D.R.Basavarajappa, Adv.)
V/s
Defendant: M/s. Bindu Labels Private Limited,
No.54/55/56,
Puttanarayanappa Complex,
Srigandhada Kavalu,
14, Sunkadakatte,
Bangalore560 091.
Rep. By its Managing Director
Sri.P.Nagaraj, 44 years,
(Sri. S.G.Prashanth Murthy, Adv.)
Date of Institution of the suit 04.04.2016
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O.S.No.25348/2016
Nature of the suit Ejectment
Date of the commencement of
recording of the evidence 30.05.2017
Date on which the Judgment
was pronounced 19.08.2021
Year/s Month/s Days
Total duration 05 04 15
*********
JUDGMENT
The plaintiff filed suit against the defendant claiming possession over the suit schedule property and also claims arrears of rent and mesne profits.
2. The brief facts of the case is that, the plaintiff is the landlord and the defendant is a tenant of the suit schedule premises bearing Nos.54, 55 and 56 of 'Puttanarayanappa Complex' situated at Srigandhada Kavalu, Bangalore comprises consist of Ground floor, First floor, Second floor and Terrace floor with 80 H.P. power with all amenities. The rent agreement entered between plaintiff and defendant on 07.11.2002 and 3 O.S.No.25348/2016 tenancy commences is 7th day of each English calender month and the rate of rent originally was Rs.25,000/ per month, later it has been enhanced and now the rent is of Rs.75,000/ per month. It is further stated that, defendant has not paid rent since April 2013 to February 2016, which amounts to Rs.26,25,000/. So, the plaintiff has issued a Legal Notice to the defendant on 18.08.2015, which served on the defendant on 19.08.2015. Thus after the expiry of six months i.e., from 21.02.2016 he continued in occupation of suit premises unauthorizedly, hence plaintiff claims that the defendant is liable to pay damages of Rs.2,00,000/ per month from the date of suit till delivery of vacant possession of the suit premises.
3. It is also stated by the plaintiff that, the defendant filed a suit against this plaintiff and his parents & a sister in O.S.No.6071/2014. In the said suit he contended that, the suit schedule premises is 4 O.S.No.25348/2016 occupied as a lessee by paying enhanced rents. Further stated that, he was paying monthly rent of Rs.1,50,000/ from April 2013. The said suit of the plaintiff ended dismissal as per Judgment on 28.10.2015. Aggrieved by the defendant has preferred RFA No.1587/2015, which is pending before the court.
4. It is stated by the plaintiff that, inspite of termination of tenancy as per Legal Notice dtd.18.08.2015, defendant failed to vacate and deliver the vacant possession of the schedule premises.
5. The cause of action to file this suit arose on 18.08.2015, the date on which the tenancy of the defendant is terminated and after expiry of six months from the receipt of notice by the defendant and all subsequent dates within the jurisdiction of this court. Accordingly, plaintiff pray for issue direction to the defendant to deliver the vacant possession of the suit 5 O.S.No.25348/2016 schedule property and also pay rent of Rs.26,25,000/ from April2013 to February2016 and also for mesne profits at the rate of Rs.2,00,000/ per month from the date of suit till the delivery of the vacant possession of the suit schedule property.
6. On filing of this suit, summons was issued to the defendant, which has been duly served on defendant. He has appeared and filed his written statement.
7. The defendant has contended that, it is a company incorporated under the provisions of the Companies Act, 1956, which engaged in the business of manufacturing, buying, selling and dealing in self adhesive labels, membrane switches, ID printing. The defendant is represented in these proceedings by its Managing Director Sri.P. Nagaraj. It is also stated that, defendant is in occupation of the factory premises 6 O.S.No.25348/2016 constructed on property bearing No.54, 55 and 56 and paying a monthly rent of Rs.25,000/ to the suit premises. Apart from that additional power connection was also obtained from BESCOM for running the factory. So, now the factory building is equipped with 80 HP power connection and other facilities.
8. The defendant stated that, it invested heavily in installing costly machinery and equipments in the schedule premises i.e.,
i) Screen Printing Machine,
ii) Roll to Roll Screen Printing Machine,
iii) Punching Machines,
iv) Roll to Roll Punching Machine,
v) lamination Machine,
vi) Power press Machine,
vii) Exposing Machine, Washing Machine, Positive making Machine, Vinyl Cutting Machine, Toll Making Machine, 7 O.S.No.25348/2016
viii) Generator,
ix) Air conditioning equipments.
9. The defendant contended that, the plaintiff and defendant are the parties owned by the members of the same family no licence deed is renewed. In the month of April 2013, the plaintiff and the defendant came to an understanding that, the amounts incurred towards putting up construction of the additional floors should be adjusted against the rents payable to the plaintiff. That on 04.08.2014, at about 1100 A.M., the plaintiff with support of other family members came to the suit schedule property and tried to tresspass into the suit property illegally. The plaintiff and his father given threat to the workers of the factory. In this regard, the Managing Director of the defendant has lodged a complaint before the Kamakshipalya Police Station on the same day. It is also stated that, plaintiff and his father came to the suit property and taken 8 O.S.No.25348/2016 away all the documents including Rent Agreement dtd.07.11.2002. Hence, the defendant filed a suit in O.S.No.6071/2014 and obtained an adinterim exparte temporary injunction. The plaintiff herein filed an application for rejection of plaint, which has been allowed by the Court in its Order dtd.28.10.2015, which has been challenged by this defendant by filing R.F.A. No.1587/2015 and obtained an order of temporary injunction restraining the plaintiff, his parents and sister from interfering with the Defendant's peaceful possession and enjoyment of the leased property.
10. The defendant also contended that, the plaintiff still owes substantial amounts to the defendant. Hence, plaintiff could not have terminated the tenancy of the defendant. The defendant also contended that, he is not liable to pay a sum of Rs.2,00,000/ per month towards unauthorized occupation of the 9 O.S.No.25348/2016 schedule premises. The defendant being juristic person cannot be put to hardship to certain disputes among shareholders. The defendant denied all the averments made in the plaint. Accordingly pray for dismissal of the suit.
11. Based on the pleadings, my learned predecessor has framed the following: ISSUES
1. Whether the plaintiff proves that he has validly terminated the tenancy of the defendant?
2. Whether the plaintiff proves that the defendant is liable to pay rent of Rs.26,25,000/ from April2013 to April 2016 and future rents?
3. Whether the plaintiff is entitle for the mesne profit of Rs.2,00,000/ p.m.?
4. Whether the plaintiff is entitle for the relief sought for?
5. What order? What decree?
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O.S.No.25348/2016
12. In order to prove the case the plaintiff himself examined as PW1 and Ex.P1 to 4 got marked. On behalf of the defendant, the defendant examined himself as DW1 and EX.D1 got marked.
13. Arguments of advocate for both the parties heard. Perused the records.
14. My answer to the above issues are as under:
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
Issue No.4 : In the Affirmative,
Issue No.5 : As per final order for the
following:
REASONS
15. Issue No.1: The plaintiff filed a suit against the defendant contending that, he is the landlord and the defendant is a tenant of the suit schedule property as per the Rent Agreement dtd.7.11.2002. The 11 O.S.No.25348/2016 defendant not paid the rent regularly. Initially, rent was fixed at the rate of Rs.25,000/ per month as per Agreement dtd.07.11.2002 and the tenancy commences on 7th of each calender month. According to the plaintiff, subsequently the defendant agreed to pay rent at the rate of Rs.75,000/ per month, but failed to pay rent since, April 2013 to February 2016, which amounts to Rs.26,25,000/. Hence, plaintiff issued Legal Notice dtd. 18.08.2015, calling upon the defendant to vacate and hand over the vacant possession of the suit property and also to pay the arrears of rent.
16. It is the burden on the plaintiff to prove that, the tenancy with the defendant has legally terminated. In this case the relationship between the plaintiff and defendant as landlord and tenant is not in dispute. So burden on the plaintiff to establish the tenancy of 12 O.S.No.25348/2016 defendant has been validly terminated by issuing a Legal Notice.
17. The plaintiff in his evidence deposed that, he has terminated the tenancy by issuing Legal Notice on 18.08.2015, which has been served on the defendant on 19.08.2015, but inspite of service of the notice, defendant has continued the possession over the suit property illegally.
18. Plaintiff had produced the copy of the Legal Notice dtd.18.08.2015, which has been marked as Ex.P.2, Acknowledgment card is marked as Ex.P.3. In his evidence he deposed that, he produced xerox copy of rent agreement and the original copy is with the defendant.
Section 106 of the Transfer of Property Act, 1882 reads as under:
106. Duration of certain leases in absence of written contract or local usage.--13
O.S.No.25348/2016 (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2)Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsection (1) shall commence from the date of receipt of notice. (3)A notice under subsection (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that sub section.
(4) Every notice under subsection (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
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O.S.No.25348/2016
19. The learned Advocate for the defendant vehementally argued that, alleged Notice issued by the plaintiff is not served on the defendant, further acknowledgment card is signed by the servant of the defendant. Hence termination of tenancy by the plaintiff is not valid.
20. Section 106(4) of Transfer of Property Act is very clear that, the notice must be in writing, it should be signed and it either be sent by post or tendered or delivered personally to such party or to one of his family or servants or affixed to a conspicuous party of the property.
21. The suggestion has been made to PW1 denying the issuance of Notice, the said suggestion is denied by PW1. The defendant not disputed service of notice and nowhere in the written statement he has taken specific contention in this point. On the other 15 O.S.No.25348/2016 hand, the plaintiff had produced the acknowledgement card. It reflects that the said acknowledgement card relating to Notice Ex.P.2. It bears the seal of the Advocate for the plaintiff, who issued notice. Further it bears the sign and seal of the defendant. The defendant taken contradictory contention that no Notice issued and another contention that the Notice is not served on the defendant. On going through the Ex.P3, it is clear that notice is as per Ex.P2 is served on the defendant as per Ex.P.3. As per Sec.106(4) of Transfer of Property Act notice served on defendant held sufficient and valid. Hence, I am of the opinion that, the tenancy of defendant is validly terminated by plaintiffs issuing a Notice to the defendant. Accordingly, Issue No.1 is answered in the Affirmative.
22. ISSUE NO.2: It is definite contention of the plaintiff that, the defendant is kept arrears of rent from 16 O.S.No.25348/2016 April 2013 to April 2016 to the tune of Rs.26,25,000/ and inspite of notice not paid the arrears. In his evidence he depose that, the defendant not bothered to pay the rent. The defendant taken up a contention that, rent has been adjusted towards construction. So, no balance to be paid.
23. It is an undisputed fact that, on 07.11.2002 the plaintiff and the defendant entered into a Lease agreement and the plaintiff leasedout the northern portion of the property bearing No.54, 55 and 56 of Kavalu, Sunkadakatte, Bangalore in favour of the defendant for a monthly rent of Rs.25,000/. In the month of April 2013 the plaintiff and defendant came to an understanding and enhanced rate of rent is fixed at the rate of Rs.75,000/ per month. According to the defendant, there is no arrears of rent to be paid to the plaintiff. DW1 depose that, he has paid monthly rent of Rs.75,000/ from April 2013 and there was an 17 O.S.No.25348/2016 understanding that amounts incurred towards putting up the construction of the additional floor should be adjusted against the rents payable to the plaintiff.
24. From this evidence it is very clear that the rate of rent from April 2013 was Rs.75,000/ per month. According to the plaintiff, the defendant has not paid rent from April 2013. So, it is a burden on the defendant to establish that, he has adjusted the rental amount towards the construction. In the cross examination he admitted that, there was an audit with respect to the defendant company. Further, he admitted that he has no documents to show that defendant has paid rent to the plaintiff. But he voluntarily deposed that, the rent has been paid by way of cash. Since the defendant is a company if any of rent paid towards rent, definitely it would have maintain the account. Whether it is paid by way of cash or cheque there must a record.
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O.S.No.25348/2016
25. DW1 in his evidence deposed that, the defendant had put up a construction as 2 ½ floors by obtaining licence and sanctioned plan. But he has not produced any document before the court. On the other hand, the plaintiff stoutly denied that the rent amount has been adjusted by the defendant towards construction. The plaintiff taken up a contention that, no construction put up by the defendant. So, it is entire burden on the defendant to convince the court that defendant had put up a construction and rent payable to the plaintiff was adjusted towards construction. But in this case the defendant miserably fails to establish that the rent which defendant liable to pay to the plaintiff was adjusted towards construction.
26. In this case the rate of rent is admitted. In one stretch DW1 deposed that rent was paid to the plaintiff by way of cash. In another stretch defendant taken up a contention that both the plaintiff and 19 O.S.No.25348/2016 defendant came to an understanding that the amount incurred towards putting up the construction of the additional floor should be adjusted towards the rent payable to the plaintiff. But the defendant miserably fails to produce the cogent material evidence before the court in support of its contention.
27. On the other hand, the plaintiff proved that, the defendant is liable to pay rent from April 2013 to April 2016. Hence, Issue No.2 answered in the Affirmative.
28. ISSUE NO.3: The plaintiff claims mesne profits of Rs.2,00,000/ per month. The tenancy of the defendant is validly terminated by the plaintiff by issuing a Notice as per Ex.P.2. Further the plaintiff proved that, the defendant is in arrears of rent from April 2013. In this case inspite of termination of tenancy the defendant not vacated and hand over the 20 O.S.No.25348/2016 vacant possession of the suit schedule property to the plaintiff. The defendant continued its possession over the suit schedule property even after the termination of the tenancy. So, the occupation of the defendant over the suit schedule property is illegal and the defendant unauthorizedly continued its possession over the suit schedule property.
29. This suit is filed in the month of April 2016. The defendant continued its possession over the suit schedule property unauthorizedly. The plaintiff claims Rs.2,00,000/ per month as mesne profits. But there is no base for claiming Rs.2,00,000/ per month to the suit schedule property from the defendant. However, by considering the rate of rent i.e., April 2013 to February 2016 at the rate of Rs.75,000/ per month, I am of the opinion that, it is reasonable to award Rs.1,25,000/ per month towards mesne profits and the defendant shall pay Rs.1,25,000/ per month from 21 O.S.No.25348/2016 May 2016 to till the date of delivery possession of the suit schedule property. Accordingly, Issue No.3 is answered Partly in the Affirmative.
30. ISSUE NO.4: The plaintiff proved the Issue No.1 and 2. The tenency of the defendant is validly terminated by the plaintiff by issuing a Legal Notice and further plaintiff proved that, the defendant is in arrears of rent of Rs.26,25,000/. So, I am of the opinion that, the plaintiff is entitled for relief sought in the plaint. Accordingly, I answered Issue No.4 is in the Affirmative.
31. ISSUE NO.5:In view of the finding on Issue No.1 to 4, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed with cost.22
O.S.No.25348/2016 The defendant is hereby directed to vacate and hand over vacant possession of the suit schedule property to the plaintiff within 30 days from the date of decree.
Further the defendant shall pay arrears Rs.26,25,000/ to the plaintiff along with mesne profit at the rate of Rs.1,25,000/ from March 2016 to till he delivers the possession of the property to the plaintiff.
SCHEDULE All that piece and parcel of Northern Portion of Commercial building bearing No.54, 55 and 56, "Puttanarayanappa Complex"
situated at Srigandhada Kavalu, 14, Sunkadakatte, Bangalore560 091 comprises of Ground floor, First floor, Second floor & Terrace floor, with 80 H.P. power respectively and bounded on:
EAST BY : Road, WEST BY: Private property & thereafter property No.45, NORTH BY: Property No.53, SOUTH BY: Property belongs to Mr.P.Nagaraj.23
O.S.No.25348/2016 Draw Decree Accordingly.
(Dictated to the judgment writer, transcribed and computerized by him and after carrying out corrections by me, print out taken by her and then pronounced by me in open Court on this the 19th day of August, 2021.) (Smt.K.G. Shanthi) LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff :
PW.1 : P.Thrimurthy List of documents marked for the plaintiff :
Ex.P1 : Cc of Plaint in O.S.No.6071/2014 Ex.P2 : Legal Notice dt.18.08.2015 Ex.P3 : Postal Acknowledgment Card Ex.P4 : Cc of Sale deed dtd.12.12.2000 List of witnesses examined for the Defendant :
DW.1 : P.Nagaraj List of documents marked for the Defendant: Ex.D1 : Cc of Order in C.P.No.51/2014 LVII Addl.City Civil & Sessions Judge,Mayo Hall Unit, Bengaluru. 24 O.S.No.25348/2016 Judgment pronounced in open court (vide separate Judgment) ORDER The suit of the plaintiff is decreed with cost.
The defendant is hereby directed to vacate and hand over vacant possession of the suit schedule property to the plaintiff within 30 days from the date of decree.
Further the defendant shall pay arrears Rs.26,25,000/ to the plaintiff along with mesne profit at 25 O.S.No.25348/2016 the rate of Rs.1,25,000/ from March 2016 to till he delivers the possession of the property to the plaintiff.
SCHEDULE All that piece and parcel of Northern Portion of Commercial building bearing No.54, 55 and 56, "Puttanarayanappa Complex"
situated at Srigandhada Kavalu, 14, Sunkadakatte, Bangalore560 091 comprises of Ground floor, First floor, Second floor & Terrace floor, with 80 H.P. power respectively and bounded on:
EAST BY : Road, WEST BY: Private property & thereafter property No.45, NORTH BY: Property No.53, SOUTH BY: Property belongs to Mr.P.Nagaraj.
Draw Decree Accordingly.
LVII Addl. City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.