Bangalore District Court
Naveen Jayaram vs K.Gopal Shetty on 22 August, 2019
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT:
SRI. KASANAPPA NAIK. M.A., LL.M.
XLI Addl. City Civil Judge
Dated this the 22nd day of August 2019
O.S.No.2580/2015
PLAINTIFFS : 1. Naveen Jayaram
S/o Late D.Jayaram
Aged about 42 years
2. Praveen Jayaram
S/o Late D.Jayaram
Aged about 40 years
3. Hanuman Jayaram
S/o Late D.Jayaram
Aged about 38 years
All are Residing at:
No.6/1, 6/2, Pent House
'B' Block, MSR Dew Drops
5th Floor, Kasavanahalli Village
Opp.Sarjapur Main Road
Bangalore-560 103.
(By Sri.S.G., Advocate)
V/s.
DEFENDANT : K.Gopal Shetty
S/o K.Krishnappa Shetty
Aged about 34 years
2 OS No.2580/2015
No.266, 1st Floor, 3rd Cross
5th Block, K.H.B.Colony
Koramangala
Bangalore-560 095.
(By Sri.S.G.A., Advocate)
Date of Institution of the Suit: 18.03.2015
Nature of the suit
(Suit on Pronote, suit for Ejectment
declaration & possession, suit
for injunction)
Date of commencement of 22.06.2016
recording of evidence:
Date on which the Judgment 22.08.2019
was pronounced:
Total Duration: Year/s Month/s Day/s
04 05 04
JUDGMENT
The Plaintiffs have filed this suit for the relief of ejectment of the defendant from the suit schedule premises, further prayed for grant of damages against the defendant in a sum of Rs.64,000/- p.m. from the date of suit, till the date of delivery of possession of the suit schedule premises, to award costs of the suit and such other reliefs.
3 OS No.2580/2015
2. The facts of the case are as under:
The plaintiffs claimed that the defendant is their tenant in respect of suit schedule premises. The lease deed was executed by the plaintiffs in respect of property bearing No.348 and 349, Ground Floor, VII Block, Koramangala Extension, Bangalore measuring with super built up area of 800 sq.ft. (herein after suit property for short) under registered lease agreement dated 22.1.2005 on a monthly rent of Rs.20,000/-. The said rent has been enhanced from time to time as per lease agreement and defendant is also paying monthly rent of Rs.32,000/- from 1.1.2013 to 31.12.2014. It is stated that father of the plaintiffs namely D.Jayaram was alive at the time of executing lease agreement, but now, he has died leaving behind the plaintiffs as his only legal heirs. The tenancy is month to month tenancy commencing on the first day of every calendar month and expiring on the last day of the calendar month. The defendant, based on the lease 4 OS No.2580/2015 agreement entered into occupation of the suit schedule premises as a tenant for the purpose of running a restaurant/hotel business. The period of tenancy was for 10 years commencing from 1.1.2005 and expiring on 31.12.2014. As per Clause 12 of the lease agreement, either party shall give 3 months notice in writing to the other, in case either party wants to terminate the lease.
The father of the plaintiffs is no more and also as the building in which the schedule premises is situated is 35 years old building and there is no proper strength in the building and it is in a very dilapidated condition. As such, the plaintiffs are intending to demolish the entire building and construct the building for their own business requirements and for their self acquisition. Thus, the plaintiffs with an intention to terminate the tenancy and to vacate the defendant from the premises, issued 3 months notice on 1.12.2014 in writing expressing their intention to terminate the lease period and get the defendant vacated 5 OS No.2580/2015 from the suit premises. The lease period was expired on 31.12.2014 and even after repeated requests, the defendant failed to vacate the suit premises. The tenancy also expired by efflux of time. Thus, the tenancy has been terminated.
The defendant has paid Rs.3,50,000/- as interest free security deposit to the plaintiffs on 22.1.2005. It is alleged that the plaintiffs have requested the defendant several times to vacate the suit property. The notice sent through RPAD to the address of the schedule property has been served on the defendant, but notice sent to the defendant's residential address has been returned. Thus, cause of action arose and suit is filed for the relief referred above.
3. The defendant filed his written statement, wherein plaint claim and allegations have been denied. It is stated that the plaintiffs have not come to the court with clean hands and suppressed true facts. The plaintiffs have made illegal attempts to dispossess the defendant from the 6 OS No.2580/2015 suit property contrary to terms and conditions of lease agreement. The defendant had filed a suit for permanent injunction against the plaintiff and so also filed Writ Petition before the Hon'ble High Court of Karnataka. In the said suit, an order of injunction was granted in favour of the defendant. The averments of the plaint that the defendant is tenant under the plaintiffs in respect of premises itself indicate that the tenancy is not terminated and suit is not maintainable as all the legal heirs of D.Jayaram are not brought on record. The plaintiffs have not valued the suit properly there being refundable premium amount paid by the defendant and same is not included in the valuation slip. Thus, the court fee paid is insufficient. The plaintiffs has not paid the court fee on the claim of damages of Rs.64,000/- p.m. It is contended that a preliminary issue has to be framed in the suit. It is stated that the lease agreement is inadmissible in evidence. Earlier, the premises was let out by Smt.Vijaya W/o Late 7 OS No.2580/2015 D.Jayaram under the lease agreement dated 1.7.2000 and the rate of rent agreed was Rs.9,000/-. The said Smt.Vijaya had received Rs.1,85,000/- as security deposit and the plaintiffs have not stated anything about the said security deposit and they want to knock off the said amount. Under the alleged lease agreement dated 22.1.2015 the plaintiffs and Late.D.Jayaram have received Rs.3,50,000/- and they have further received a sum of Rs.1,50,000/- as further security deposit when they were in need of money. Thus, the plaintiffs have to pay a total sum of Rs.6,85,000/-. Because of the illegal interference of the plaintiffs, the defendant could not run the business for a period of one week and the defendant had to incur loss of Rs.35,000/- and plaintiffs have to pay the same. He has denied that he has received notice of termination issued by the plaintiffs. The alleged notice dated 1.12.2014 is created document and same is not served on the defendant. Since the tenancy is not terminated, the suit is not maintainable. Ultimately, 8 OS No.2580/2015 it is stated that without prejudice to the averments of the written statement and without admitting such notice, it is contended that the alleged notice was waived by the conduct of the plaintiffs and in view of the fact that they have received and accepted subsequent rents, without any demur or protest and the alleged notice became infructuous and invalid. The provisions of Karnataka Rent Control Act 1961 are applicable to the suit premises and the suit as brought is not maintainable. The suit is brought contrary to the provisions of Transfer of Property Act and there is no pleading or basis for the alleged claim of damages of Rs.64,000/ p.m. It is stated that there is a waiver of alleged fabricated notice, as the plaintiffs have received continuously the rent paid by the defendant without any protest nor reserving their right to proceed with on the basis of alleged quit notice. It is nothing but an intentional relinquishment of the alleged right to evict the defendant.
9 OS No.2580/2015
It is contended that the defendants would be put to great hardship and inconvenience if he was vacated from the suit premises. He was running small hotel and out of the income the defendant is earning his livelihood. The defendant is not in a position to secure other alternate accommodation, at this stage and to establish once again in the other rented premises. The defendant is ready to enhance the rent reasonably. Thus, these among other grounds, prayed to dismiss the suit with costs.
4. On the basis of the above pleadings, the following issues have been framed:
1) Whether the plaintiffs prove that the description of the suit schedule property is correct?
2) Whether the plaintiffs further prove that the tenancy of the defendant is duly terminated?
3) Whether the suit is properly valued and the court fee paid is sufficient? 10 OS No.2580/2015
4) Whether the suit is not
maintainable in view of the
provisions of Karnataka Rent
Control Act 1961?
5) Whether the plaintiffs are entitle for the reliefs sought for?
6) What order or decree?
5. In support of their case, the plaintiff No.1 examined himself as PW1 and produced documents as per Ex.P.1 to P.8. In support of his case, the defendant examined himself as DW1 and examined one witness as DW2 and produced Ex.D.1 in evidence.
6. I have heard the learned counsel for the parties and perused the materials on record including written arguments filed by both the Advocates.
7. My findings to the above issues are as under:
Issue No.1 to 3 : In the affirmative
11 OS No.2580/2015
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
8. ISSUE Nos.1 TO 5:- Since these issues are
interconnected with each other hence they are taken together for common discussion in order to avoid repetition of facts and evidence.
9. The learned counsel for the plaintiffs, based on his written argument, has contended that the lease period was over and defendant failed to quit and hand over the possession of the suit property to the plaintiffs despite service of notice. It is argued that the plaintiffs are entitled for eviction of the defendant and further possession of the property coupled with damages of Rs.64,000/- p.m. and thus prayed to decree the suit.
12 OS No.2580/2015
10. On the other hand, the learned counsel for the defendant contended that notice issued by the plaintiffs is premature one and invalid as alleged notice was dated 1.12.2014 and period of 3 months would commence only from 1.1.2015 and thus the same would expire on 31.3.2015 and that the suit filed on 18.3.2015 is premature. It is further argued that the service of notice is not in accordance with law and thus said notice is deemed to have been waived. It is also argued that subsequent to the suit, and during the pendency of the suit, the plaintiffs have received the rents and also enhanced rent as per the agreement at 15% on agreed rate. When the plaintiffs received the rent without any demur and without any protest and thus the alleged notice is waived and thus contended that the said waiver of the notice created fresh tenancy and thus suit is liable to be dismissed. In support of his arguments, the learned counsel for the defendant 13 OS No.2580/2015 relied upon decision reported in AIR 2015 Kar 128 (M/s Auto World, Bangalore V/s Smt.K.V.Sathyavathi).
11. Keeping in mind the rival submissions, I have carefully perused the materials on record. In this case, there is no dispute that the plaintiffs are the owners of the suit property and further there is lease agreement between the plaintiffs and defendant on 22.1.2005, which was for 10 years and expired on 31.12.2014. Though the defendant contended that the description of the property is not correct, but a careful comparison of the suit property with lease agreement, make it clear that both tallies each other.
12. In this regard, the plaintiff No.1 filed his evidence affidavit narrating all the material facts of the plaint. The witness produced documentary evidence. Ex.P.1 is lease agreement dated 22.1.2005 executed 14 OS No.2580/2015 between plaintiffs No.1 to 3 and their father Late D.Jayaram in favour of defendant, leasing the suit property for a period of 10 years. Ex.P.2 is katha certificate of suit property standing in the name of all the plaintiffs as on 22.8.2016. Ex.P.3 is katha extract of suit property dated 22.8.2016 in the name of the plaintiffs. Ex.P.4 is tax paid receipt. Ex.P.5 is legal notice dated 1.12.2014 issued by the plaintiffs against defendant terminating the tenancy and calling upon him to vacate the suit property claiming damages of Rs.50,000/- p.m. Ex.P.6 is postal receipt for having sent notice to the defendant, whereas Ex.P.7 is postal acknowledgment bearing signature of the defendant. Ex.P.8 is unserved registered postal letter. These documents clearly indicate that suit property was given on lease to the defendant and there is no error in mentioning the description of the property. Thus, the contention of the defendant that the description of the suit property is not properly mentioned cannot be accepted.
15 OS No.2580/2015
13. It is contention of the defendant that the tenancy is not duly terminated as the suit is filed before expiry of 3 months of issue of notice and that the notice given is not valid. As I already indicated, the lease was for a period of 10 years commencing from the date of lease agreement on 1.1.2005 to 31.12.2014. It is seen that clause-12 of the agreement - Ex.P.1 provided that in the event of lessee making three continuous defaults in payments of the rent during the period of lease, then the lessor have every right to terminate the lease irrespective of the period of lease stipulated in this deed and lessor are entitled to reclaim their possession of the schedule property. The either party shall give 3 months notice in writing to the other party in case either party wants to terminate the lease. In this case, the defendant has denied to have received the legal notice - Ex.P.5. However, Ex.P.7 is bearing signature of the defendant and though he denied the same, but he has failed to prove that the signature 16 OS No.2580/2015 appearing on the same is not his signature. Therefore, the contention of the defendant that he has not received the notice cannot be accepted. The notice was issued on 1.12.2014. It is seen that the plaintiffs were supposed to file this suit after expiry of 3 months of notice and this suit was filed on 18.3.2015. This goes to show that the plaintiffs filed the suit after expiry of 3 months of the notice. Thus, the suit is maintainable and notice issued was valid notice.
14. PW1 was cross-examined by the learned counsel for the defendant, wherein he has denied that he agreed to renew the lease for a period of 10 years after 2005. But, however there is no evidence to show the same. He has denied that the defendant paid Rs.3,50,000/- as advance instead of Rs.3,00,000/- as claimed by the plaintiff. He has denied that the defendant paid additional advance of Rs.3,35,000/- and totally paid Rs.6,85,000/-. It is seen 17 OS No.2580/2015 that the said suggestion has no basis as there is no details provided as to on which date and where said amount was paid. There is no documentary evidence in this regard. Though he admitted that the enhanced rent is paid upto December 2014, but denied that upto December 2016 enhanced rent is paid by the defendant. He has denied that by receiving enhanced rent he told the defendant that he may continue in the suit schedule property. He has even denied that by receiving rent, he waived the quit notice. Thus, a careful perusal of evidence of PW1 reveal that he nowhere admitted that he ever told the defendant to continue in the suit schedule property. Even there is no any evidence to show that the plaintiffs had any intention to waive the quit notice. Therefore, in this case, merely because the plaintiffs received the rent, it cannot be said that he received the same and waived the quit notice. The notice issued by the plaintiffs itself indicate that he had intention to terminate the lease and therefore, the 18 OS No.2580/2015 contention of the defendant that the plaintiffs waived the quit notice cannot be accepted. In view of the evidence on record and facts of the case, the decision relied upon by the learned counsel for the defendant in K.V.Sathyavathi's case (supra) is not applicable to the facts of the case.
15. Even the defendant has filed evidence affidavit reiterating all the material facts of the written statement. The defendant produced documentary evidence. Ex.D.1 is account statement of the defendant maintained in Vijaya Bank, Koramangala Branch. The witness was subjected to cross-examination by learned counsel for the plaintiffs, wherein he stated that he is running hotel business in the suit property since last 18 years. He has clearly admitted that the lease period was ended on 30.11.2014. He has clearly admitted that after 30.11.2014 no lease agreement was entered for further period. Though he stated that there was talks for extension of lease for a period of 3 years, but 19 OS No.2580/2015 the same cannot be accepted, as there is no documentary evidence to prove the same. He has admitted that as per the lease agreement - Ex.P.1, he has paid advance of Rs.3,50,000/-. He has denied that he has received legal notice dated 1.12.2014 on 16.12.2014. The counsel for the plaintiffs confronted Ex.P.7 to the witness and he has denied his signature on the same. But he has admitted that if the letter sent to the address of suit property, it will reach to him. At this juncture, if Ex.P.7 is perused, it is seen that it bears the address of the defendant and he has nowhere denied that address mentioned at Ex.P.7 is of his address. Moreover, it is not the case of the defendant that his signature on Ex.P.7 is forged or created. NO steps taken by him to disprove the said signature. Therefore, it is seen that the defendant has issued notice and failed to quit the suit premises. Thus, I find that by serving notice upon the defendant, the plaintiff has duly terminated the tenancy. The learned counsel for the defendant in the 20 OS No.2580/2015 written statement though contended that the suit is not maintainable in view of provisions of Karnataka Rent Control Act 1961, but the learned counsel for the defendant failed to substantiate as to how the suit is not maintainable. In view of measurement of suit property and further in view of quantum of rent fixed, I find that the provisions of Karnataka Rent Control Act, 1961 are not applicable to the facts of the case. Thus, I find that the plaintiffs established the suit claim and hence the suit has to be decreed. The defendant though examined DW2 one Shankar Shetty to prove that there is compromise talk between the plaintiffs and defendant and that the plaintiffs agreed to enhance the rent and defendant agreed to pay the enhanced rent. He further deposed that the plaintiffs have agree to continue tenancy for a period of another 3 years. But, this witness has failed to disclose the date of such compromise talk or the place of compromise talk. In the cross-examination by the learned counsel for the plaintiffs, 21 OS No.2580/2015 he deposed that on that day agreement was not entered. The evidence of this witness cannot be accepted as there is no document to show the renew of lease period. The said oral agreement is not valid in law and same cannot be accepted.
16. In this case, the plaintiffs claimed damages of Rs.64,000/- p.m. from the date of suit till the date of delivery of possession for use and occupation of the suit property, but there is no basis to claim such damages. The plaintiffs have not disclosed how they have worked out said sum of money. It is seen that during the pendency of the suit, the defendant has paid rent. On 22.6.2016 by filing memo the defendant has reported issuance of 3 cheques for Rs.2,09,000/- each towards rent of suit property from 1.12.2014 to 31.6.2016. The said amount was mentioned as enhanced rent of Rs.35,000/- each from January 2015 to May 2016. The memo dated 7.11.2016 filed by 22 OS No.2580/2015 defendant's counsel reported issuance of 3 cheques for Rs.23,334/- each towards rent from 1.8.2016 to 30.9.2016. Another memo dated 23.8.2016 reveals that the defendant has issued 3 cheques towards rent from 1.6.2016 to 30.7.2016. These three memos disclose that the defendant has paid rent to the plaintiff from December 2014 to May 2016, from 1.6.2016 to 30.7.2016 and from 1.8.2016 to 30.9.2016. The order sheet dated 4.12.2018 reveals that the plaintiff has reported receipt of 3 cheques for Rs.3,13,667/- each from the defendant. There is no separate memo filed to indicate as to for what period these cheques were concerned. However, it may be said that the said cheques were issued towards rent of the suit property from 1.10.2016 to 30.11.2018. It probablize that the defendant is in due of rent from December 2018 to this date. Therefore, there being lease agreement to enhance rent of 15% for each year, the claim of the plaintiff to seek damage of Rs.64,000/- p.m. is justified from December 23 OS No.2580/2015 2018. Therefore, I find that the defendant is to be directed to pay damage of Rs.64,000/- p.m. to the plaintiffs from December 2018 till the possession of the suit property is handed over to the plaintiffs along with the damages as ordered above. Hence, Issue Nos.1 to 3 are answered in the affirmative, Issue No.4 is answered in the negative and Issue No.5 is answered partly in the affirmative.
17. ISSUE NO.6: In view of my findings on above said issues, the suit filed by the plaintiffs has to be decreed in part with costs. Hence, in the result, I proceed to pass the following :
ORDER The suit of the plaintiffs is decreed in part with costs.
The defendant is hereby directed to quit, vacate and handover the vacant possession of the suit property to the 24 OS No.2580/2015 plaintiffs within two months from this date.
The defendant is further hereby directed to pay damages of Rs.64,000/- p.m. to the plaintiffs from December 2018 till handing over of vacant possession of the suit property and also payment of entire damages.
The plaintiffs are hereby directed to return deposit of Rs.3,50,000/- to the defendant and the defendant is entitle for set off of the amount out of damages as ordered above.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by her, thereafter corrected and then pronounced by me in the open court, on this the 22nd day of August 2019).
( KASANAPPA NAIK ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 25 OS No.2580/2015 ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiffs' side:
P.W.1 Naveen Jayaram
b) Defendant's side:
D.W.1 K.Gopal Shetty
D.W.2 Shankar Shetty
II.List of documents exhibited on behalf of :
a) Plaintiffs' side:
Ex.P.1 C/c of lease deed dated 22.1.2005 Ex.P.2 Khatha certificate Ex.P.3 Katha extract Ex.P.4 Tax paid receipt Ex.P.5 Office copy of legal notice dated 1.12.2014 Ex.P.6 Postal receipt Ex.P.7 Postal acknowledgment Ex.P.8 Unserved RPAD Cover 26 OS No.2580/2015
b)Defendant's side :
Ex.D.1 Statement of account of Vijaya Bank ( KASANAPPA NAIK ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 27 OS No.2580/2015