Karnataka High Court
Sri Abbaiah vs Sri Anoop R Shetty on 21 January, 2014
1
IN THE HIGH COURT OF KARNATAKA, AT BANGALORE
DATED THIS THE 21ST DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
W.P.No.55148/2013 (GM-CPC)
BETWEEN:
Sri.Abbaiah,
S/o.late Yellappa,
Aged about 69 years,
No.21, 4th Cross,
Venkatapura New Extension,
Koramangala,
Bangalore -560034. ...PETITIONER
(By Sri.K.P.Bhuvan, Adv.)
AND:
Sri.Anoop R.Shetty,
S/o.Sri.B.R.Shetty,
Aged about 56 years,
R/o.No.B-6, Naveen Terraces,
100 feet Ring Road,
S.T.Bed, 4th Block,
Koramangala,
Bangalore -560 024. ...RESPONDENT
(By Sri.B.N.Jayadeva, Adv. for C/R.)
*****
2
This W.P. is filed under Articles 226 and 227 of the
Constitution of India praying to quash the impugned order
dt.21.11.2013 passed on the application filed u/O.XXI Rule
19 of CPC in E.P.No.1735/10 by the learned XLIV Addl. City
Civil & Sessions Judge, Bangalore, vide Ann-L and thereby
dismissed the application.
This petition coming on for orders this day, the Court
made the following:-
ORDER
I.A.No.1/2013 is allowed and the order dated 19.12.2013 is recalled and the writ petition is restored to file.
2. Heard on merits.
3. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question, the order dated 21.11.2013, passed by the executing court in execution case No.1735/2010 vide Annexure-'L'.
4. By the impugned order at Annexure-'L', the Executing Court has directed the petitioner to pay a sum of `4,22,673/- with interest at 18% p.a. 3
5. Aggrieved by that, the petitioner has filed this writ petition.
6. Briefly stated the facts are:
The petitioner had filed suit in O.S.No.1546/2007 for ejection of the respondent. The suit came to be decreed on 19.4.2010. The respondent preferred an appeal before this Court in RFA.No.1261/2010. In the said appeal, the respondent filed a memo requesting for nine months time to vacate and hand over vacant possession of the premises.
This Court by its order dated 18.2.2011 has disposed of the RFA granting time to the respondent till 17.11.2011 to vacate the premises and imposing other conditions. One of the conditions is that at the time of vacating the premises, the petitioner shall refund security deposit to the respondent after defraying the rental arrears, if any.
7. The petitioner has filed execution petition in Ex.Case.No.1735/2010 and has taken possession through the process of Court on 12.1.2012. Thereafter, the 4 respondent has filed I.A.No.2 for refund of the security deposit of `5,00,000/-. The petitioner has resisted the application contending that the respondent is liable to pay a sum of `4,17,110/- to the petitioner. The Executing Court by its order dated 21.11.2013 has allowed the application and has directed the petitioner to pay a sum of `4,22,673/- with interest at 18% p.a. Therefore, this writ petition.
8. The respondent has filed statement of objections contending that the writ petition is not maintainable and the impugned order does not call for interference.
9. The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the respondent is due in a sum of `4,17,110/- towards mesne profits, damages, electricity charges and costs awarded in the suit and the petitioner is not liable to pay anything to the respondent and therefore, the impugned order cannot be sustained in law. 5
10. As against this, the learned counsel for the respondent submitted that the impugned order does not call for interference. He also submitted that this Court in RFA.No.1261/2010 has disposed of the appeal granting time to the respondent till 17.11.2011 to vacate the premises. One of the conditions was that at the time of vacating the premises, the petitioner shall refund the security deposit to the respondent. The respondent has sent notice dated 11.11.2011 to the petitioner informing him that the respondent has vacated the premises and the petitioner can take possession and refund the security deposit. However, the petitioner has initiated execution proceedings in execution case No.1735/2010 and taken possession through the process of Court on 12.1.2012. Thereafter, the respondent has filed I.A.No.2 for refund of the security deposit of `5,00,000/-. The executing court has ordered to pay a sum of `4,22,673/- with interest at 18% p.a. and therefore, the impugned order does not call 6 for interference. He also submitted that the respondent has vacated the premises even before 17.11.2011 itself. The petitioner should have refunded the security deposit. Instead of that, the petitioner is making unnecessary claim. Therefore, the impugned order does not call for interference.
11. I have carefully considered the submissions made by the learned counsel for the parties.
12. The point that arises for my consideration is, Whether the impugned order calls for interference?
13. It is relevant to note, the suit in O.S.No.1546/2007 has been filed by the petitioner for ejection of the respondent. The Trial Court has decreed the suit on 19.4.2010. The respondent has preferred appeal in RFA.No.1261/2010. In the appeal, the respondent has filed a memo requesting for nine months time. This Court has granted time till 17.11.2011 to vacate the premises and 7 has ordered to refund the security deposit at time of vacating the premises. Though notice dated 11.11.2011 the respondent has informed the petitioner that he is vacating the premises and the petitioner can take possession of the premises and refund security deposit. Instead of taking possession, the petitioner has filed execution petition and has taken possession through Court on 12.1.2012. It is clear from the notice sent to the petitioner that the respondent was ready to vacate and hand over vacant possession of the premises to the respondent on 11.11.2011 itself. Instead of taking possession, the petitioner has filed execution petition in Ex.Case No.1735/2010 and has taken possession through Court on 12.1.2012. For that the respondent cannot be blamed. After taking possession, the petitioner should have refunded the security deposit of `5,00,000/- to the petitioner. Instead of that, the petitioner has resisted the application contending that the respondent is due in a sum 8 of `4,17,110/- which is untenable. However, the claim made towards electricity charges and the cost awarded in the suit is acceptable. If the electricity charges of `10,880/-, cost of `38,260/- awarded in the suit and the balance rent payable amounting to `76,121/- is deducted from `5,00,000/-, the balance payable comes to `3,74,739/-. The Trial Court has awarded interest at 18% p.a. which is on the higher side. It is appropriate to award interest at 12% p.a. from 12.1.2012. The petitioner should have refunded the security deposit. He has not done so. Therefore, the petitioner is liable to pay interest at 12% p.a. on `3,74,739/- from 12.1.2012.
Accordingly, the writ petition is allowed in part and the petitioner is directed to pay a sum of `3,74,739/- with interest at 12% p.a. from 12.1.2012 till the date of payment. The respondent is at liberty to execute the order.
Sd/-
JUDGE.