Bangalore District Court
Mahendra Kumar @ Mahendra Bhandari vs M/S Amazon Drugs Pvt.Ltd on 25 June, 2015
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated, this the 25th day of June 2015.
PRESENT
Sri. RAVI M. NAIK,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S. NO.1782/2011
PLAINTIFFS 1. Mahendra Kumar @ Mahendra Bhandari,
S/o late Sri.Vastimalji, aged about
48years, r/a No.434, 1st floor, 7th B
Main road, 4th block, Jayanagar,
Bangalore -560 011.
2. Ashish Bhandari S/o Mahendra Kumar,
aged about 24years, r/a No.434, 1st
floor, 7th B Main road, 4th block,
Jayanagar, Bangalore - 11.
(By Srivaishnavi Law Associates - Advocates)
- V E R S U S -
DEFENDANT M/s Amazon Drugs Pvt.Ltd.,
No.76/26, 5th cross, SSI Area,
Rajajinagar, Bangalore -560 010.
(By Sri.K.S.Mohith Kumar - Advocate)
Date of institution of the suit : 7.3.2011
Nature of the suit (suit on Suit for ejectment
pronote, suit for declaration and
possession suit for injunction,etc) :
Date of the commencement of 6.6.2014
recording of the evidence :
Date on which the Judgment was 25.6.2015
pronounced :
2 O.S.No.1782/2011
Total duration Year/s Month/s Day/s
04 03 18
(RAVI M. NAIK),
I Addl.City Civil & Sessions Judge,
Bangalore.
J U D G M E N T
The plaintiffs have filed a suit against the defendant with a prayer directing the defendant to quit and deliver vacant possession of the suit schedule property and also direct the defendant to pay the damages at the rate of Rs.25 per sq.ft. per month for unlawful occupation from the date of the suit till the date of actual delivery of possession of the suit schedule property and direct the defendant to reconstruct the garage portion at his own costs and cost of the suit and for such other further reliefs.
2. The brief averments of the plaint are that the plaintiffs are the absolute owners of the suit schedule property. The defendant who was inducted as tenant in respect of the suit schedule property by M/s Sanghvi 3 O.S.No.1782/2011 Manmul Rajaji & Co., which was a joint family business of plaintiff and other family members under a registered lease deed dated 11.5.1992 on a monthly rent of Rs.8,000/- and which was enhanced from time to time and as on the date of filing the suit, the monthly rent was Rs.27,000/-. It is further stated that the lease period was fixed for ten years from the date of lease agreement with renewal clause for further five years and after lapse of initial period of ten years, the lease was renewed for further period of five years as per the terms of the lease deed. Even after the lapse of lease period, at the request of the defendant the lease was continued and the defendant was paying the monthly rent to the plaintiffs.
3. It is further stated that the joint family of the plaintiffs has partitioned the joint family properties under the registered partition deed dated 19.6.2009 and since then, the plaintiffs are exercising their right as owners and landlords of the suit schedule premise. It is further stated that the plaintiffs are businessmen involved in 4 O.S.No.1782/2011 garment business and they have an intention to start garment manufacturing Industry of their own and the suit schedule property is very much suitable for setting up the garment industry. It is further stated that the plaintiffs issued notice of attornment dated 24.7.2009 and said notice is duly served on the defendant, but he did not reply to the said notice. Thereafter, the plaintiffs issued another notice dated 9.9.2009 terminating the lease agreement and demanded the defendant to handover the vacant possession of the suit schedule property on or before 31.3.2010. Said notice issued by the plaintiffs by registered post acknowledgement due was served on the defendant and inspite of that the defendant has failed to give any reply. It is further stated that as per the lease agreement, the plaintiffs i.e., lessors are required to send copy of the notice of termination to the KSFC and accordingly the plaintiffs sent the notice to the KSFC and it was duly 5 O.S.No.1782/2011 served on it. It was learnt by the plaintiffs that loan obtained from KSFC was cleared by the defendant.
4. It is further contended that thereafter the defendant orally requested his difficulties and sought some time to vacate the suit premises. Believing the words of the defendant, the plaintiffs accepted the rent, but the defendant failed to keep up the promise and failed to quit and vacate the suit schedule premises. It is further stated that thereafter the plaintiffs issued notice of termination dated 23.8.2010 calling upon the defendant to vacate and deliver the suit schedule property. The said notice issued to the defendant by registered post acknowledgement due was served and in the said notice six months' time was granted to the defendant in terms of the Transfer of Property Act, since the defendant is a manufacturing unit. Inspite of lapse of the said period, the defendant neither vacated nor replied the said notice.
6 O.S.No.1782/2011
5. It is further stated that the plaintiffs have learnt that the defendant is making effort to sub-let the premises with an oblique motive to cause damage to the plaintiffs and making efforts to cause damages to the garage portion and making efforts to change the nature of the property. It is further stated that even after the termination of the tenancy, the defendant is continuing. The defendant has failed to vacate the suit schedule premises and therefore, the defendant is liable to pay the damages at the rate of Rs.25/- per sq.ft., for unlawful occupation of the suit schedule property till he vacates and handover the suit schedule property. Hence, the plaintiffs have prayed to pass the judgment and decree against the defendant as prayed.
6. In pursuance of the suit summons, the defendant has appeared through his counsel and filed a written statement. The sum and substance of the contention taken in the written statement is that in the year 1990 the defendant on continuous insistence by his friends 7 O.S.No.1782/2011 and family members of the plaintiffs' predecessor, decided to establish an industry and accordingly established an industry in the name and style of M/s Amazon Drugs Pvt.Ltd., in the suit schedule property and in pursuance of the lease agreement dated 11.5.1992 executed by Sha Manmul-the predecessor of the plaintiffs in favour of the defendant. The agreement so entered by the predecessor of the plaintiffs and these plaintiffs had no relevance or interest in the said transaction. It is further contended that the let out extent of the entire premises in the lease agreement is 4000sq.ft., in which a certain non-existent garage was excluded. It is further contended that as on the date of the lease agreement, there was no garage on the premises and entire schedule property is on 4000sq.ft., and the building constructed thereon consisting of ground, first and second floor which is let out to the defendant under the lease agreement.
7. It is further contended that the defendant after being put in the lawful possession of the suit schedule 8 O.S.No.1782/2011 property obtained loan from KSFC and other financial corporations and started a Pharmaceutical industry and is running the manufacturing industry since 19 years. It is further contended that the lease agreement did not specify the increase in rent, however, the defendant is paying increased rents to the plaintiffs and his predecessors in regular intervals and the initial rent was Rs.8,000/- and is revised and standing at Rs.27,000/- per month and the rent in respect of the suit schedule property is received by the plaintiffs till January 2011. It is further contended that the defendant has invested heavily on the industry in compliance of the drug rules. The power and electrical installations, air conditioning - air handling, internal partitions, the machinery being used in the manufacturing industry and all other safety requirements and norms are in compliance of the drug rules and the defendant has a valid license for running the manufacturing industry.
9 O.S.No.1782/2011
8. It is further contended that the approximate valuation of the investment made by the defendant in the premises is about 80Lakhs and the suit schedule property is subjected to encumbrance and as on the date of the present suit, the industry is hypothecated with "State Bank of Mysore" and the working capital for the industry is provided by the said bank. The bank has provided loan of Rs.25Lakhs. It is further contended that the defendant industry is the only source of livelihood for more than 40 employees and the defendant industry is the sole bread winner for the family of the said employees. It is further contended that the defendant industry supplies medicines to various parts of the country since 19years. Any action by the plaintiffs affecting the manufacturing of these drugs would cause irreparable damages both the defendant and the patients consuming the medicines in the country. It is further contended that the plaintiffs who claim to be the successors of Sha Manmul are collecting rents from the 10 O.S.No.1782/2011 defendant since long time and they are trying to cause trouble and dispossess the defendant from the suit schedule property. The plaintiffs are threatening the defendant and have lodged a false complaint before Magadi Road Police Station, trying to block the entrance of the suit premises and the plaintiffs are using brute force and coercion to eject the defendant from the suit schedule property and they have hatched a vexatious plan to dispossess the defendant from the suit schedule property. It is further contended that it is very difficult for the defendant to shift the industry as most of the machinery is fixed and dismantling them will take long time and unaccountable loss would be caused in dismantling the machinery and some of the machinery would be lost for ever. Therefore, sudden removal of the defendant industry is not feasible. It is further contended that the defendant has already initiated proceedings against the plaintiffs in OS 639/2011 on the file of 11 O.S.No.1782/2011 CCH.14 and the said Court has granted injunction against the plaintiffs.
9. The defendant has contended that the averments made in the plaint that the plaintiffs are the owners of the suit property are not within the knowledge of the defendant. The defendant has admitted the averments made in para-3 of the plaint and he has contended that the defendant has no knowledge regarding the averments made in para-4 & 6 and the defendant has partly admitted the averments made in para-5 of the plaint. The defendant has denied the averments made in para nos.7 to 9 of the plaint. The defendant has admitted the averments made in para-10 with regard to the issuance of notice and he denies that the defendant by keeping silent had agreed to vacate the suit premises and it is contended that the defendant had not replied to the notice since the plaintiffs had no authority to issue notice as the property was the joint family property of the plaintiffs. It is further contended that the agreement of 12 O.S.No.1782/2011 the plaintiffs' joint family with the defendant expired long back and subsequently they had agreed to allow the defendant to continue the industry till the year 2022. The intention of the plaintiffs was not to inform the KSFC of the action being planned, but to force the KSFC to cancel the machinery loan of the defendant. The defendant has denied the averments made in para-11 to 21 of the plaint. It is further contended that the plaintiffs have no locus standi to file any eviction suit and the agreement was entered with the defendant by the Predecessor of the plaintiffs i.e., Sri.Sha Manmul. The plaintiffs were not parties to the agreement. As per the terms and conditions of the agreement, it expired on 11.5.2002. Subsequently the defendant has continued his permissive possession over the suit property allowed by the plaintiffs' predecessor. There was no privity between the plaintiffs and the defendant. The plaintiffs have claimed title to the suit property only subsequently. The terms and conditions agreed between the plaintiffs' 13 O.S.No.1782/2011 predecessor and the defendant that the defendant shall be continued in the suit schedule property for another twenty years since 2002. It is not in the exclusive knowledge of the plaintiffs. The plaintiffs have approached the court with non-existent agreement seeking eviction. It is further contended that the cause of action to evict the defendant from the suit schedule property arose in 2002, but the predecessors of the plaintiffs have not enforced their right as they had agreed to further lease the suit schedule property to the defendant for 20years. The plaintiffs have admittedly acquired right to the suit schedule property only in the year 2009. Therefore, the defendant prayed for dismissal of the suit. In the alternative, the defendant has prayed that at least five years time be granted to vacate the suit schedule property and also direct the plaintiffs to pay a solatium of Rs.1000/- per square feet in lieu of the development made by the defendant to the suit schedule property.
14 O.S.No.1782/2011
10. On the basis of the above pleadings, this Court has framed the following issues:
1. Whether the plaintiffs prove that they are the landlords and defendant is tenant under them in the suit schedule property ?
2. Whether plaintiffs further prove that they have issued notice terminating the tenancy of the defendant as required under Sec.106 of the T.P.Act ?
3. Whether plaintiffs entitled to damages at the rate of Rs.25 per sq.ft., per month for the unlawful occupation of the defendant from the date of the suit ?
4. Whether the plaintiffs are entitled to the reliefs sought for ?
5. What Order or decree ?
11. The plaintiffs in order to prove their case, they have got examined the first plaintiff as PW.1 and got marked Exs.P.1 to P.9 documents. On the other hand, the Managing Director of the defendant is examined as DW.1 and Exs.D.1 to D.11 documents came to be marked on behalf of the defendants.
12. The learned Counsel appearing for plaintiffs relied on the following decisions:
15 O.S.No.1782/2011
1. AIR 1961 SC 1067 - Ganga Dutt Murarka Vs. Kartik Chandra Das and others;
2. AIR 1968 SC 919 - Konchada Ramamurthy Subudhi(dead) by his LRs., Vs. Gopinath Naik and others;
3. (1972)1 SCC 388 - Bhawanji Lakhamshi & others Vs. Himatlal Jamnadas Dani & others;
4. (1998) 7 SCC 184 - Raptakos Brett & Co.Ltd., Vs. Ganesh Property;
5. (2006)1 SCC 288 - C.Albert Morris Vs. K.Chandrasekaran & others;
13. On the other hand, the learned Counsel appearing for the defendant has relied on an unreported decision of the Hon'ble High Court of Karnataka in RFA 198/2015 - M/s Autoworld Vs. K.V.Sathyavathi.
14. In addition to the written arguments filed by both the learned Counsel appearing for plaintiffs and defendant, heard the arguments of both sides.
15. My findings on the above issues are as follows:
Issue no.1 & 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:16 O.S.No.1782/2011
REASONS
16. Before answering the issues, I would like to state the admitted facts of this case. The defendant is a occupant in respect of the suit schedule property and he is running a pharmaceutical industry in the suit schedule property under the name and style of M/s Amazon Drugs Pvt.Ltd.
17. ISSUE NO.1: The contention of the plaintiffs that the defendant was inducted as a tenant in respect of the suit schedule property by M/s Sanghvi Manmal Rajaji & Company which was a joint family business of the plaintiffs and other family members under a registered lease deed dated 11.5.1992. To substantiate that, the plaintiffs have got marked Ex.P.1 Lease deed. The recitals of the said lease deed disclose that Shah Manmul and the defendant represented by its Director D.K.Sadhu, entered into the said lease agreement and the initial rent was Rs.8,000/- per month. The bone of contention of the learned Counsel appearing for the defendant is that the plaintiffs have not produced any documents to prove their ownership over the suit 17 O.S.No.1782/2011 schedule premises and that aspect is admitted by PW.1 in his cross-examination. It is further contended that the plaintiffs have produced the khata in respect of the suit schedule premises. The said document shows that the plaintiffs are only the administrators of the property and they are not the owners. Thus, the sum and substance of the contention of the learned Counsel appearing for the defendant is that the plaintiffs have failed to prove their ownership over the suit schedule property. As against the said argument, the learned Counsel appearing for the plaintiffs contended that the suit schedule property was allotted to the plaintiffs in the family partition. The family partition itself is clear that the suit schedule property was allotted to the share of the plaintiffs. No doubt, the plaintiffs have not produced the family partition deed. But, on oath PW.1 i.e., first plaintiff has stated that in the year 2009, a registered partition deed took place in the family of the plaintiffs and in the said partition, the suit schedule property was allotted to the share of the 18 O.S.No.1782/2011 first plaintiff and 2nd plaintiff i.e., the father and son jointly. Exs.P.7 to P.9 are the Suvarna khata, Uttarapatra, khata certificate and property tax paid receipt. The recitals of Ex.P.7 read as under:
"EªÀgÀ ºÉ¸j À UÉ ªÀUÁð¬Ä¸À¨ÃÉ PÉAzÀÄ PÉÆÃj 14.08.2012 ¢£ÁAPÀzA À zÀÄ ¸À°è¹zÀ CfðAiÀÄ£ÀÄß ¥Àj²Ã°¹zÀ vÀgÀĪÁAiÀÄ ¸Àzj À ¸ÀéwÛ£À SÁvÉAiÀÄ£ÀÄß £ÉÆÃAzÁ¬ÄvÀ ºÀPÀÄÌ ©qÀÄUÀqÉ ¥Àvz Àæ À DzsÁgÀzÀ ªÉÄÃgÉUÉ F PÀbÃÉ jAiÀÄ°è£À zÁR¯É ¥ÀĸÀÛPz À ° À è CªÀgÀ ºÉ¸j À UÉ ªÀUÁð¬Ä¸À¯ÁVzÉAiÉÄAzÀÄ w½¸À¯ÁVzÉ."
Thus, from the aforesaid recitals of Ex.P.7 it is very much clear that based on the registered partition deed, the name of the plaintiffs are entered in the khata certificate. Nowhere in Ex.P.7 or Ex.P.8 or Ex.P.9, there is an averment stating that the present plaintiffs are the administrators of the property of their joint family. Under these circumstances, the contention raised by the defendant that the plaintiffs are the administrators of the property of their joint family and not owners of the property holds no water.
19 O.S.No.1782/2011
18. Added to that, Sec.116 of the Indian Evidence Act is clear that no tenant of immovable property or person claiming through such tenant during the continuance of the tenancy deny the title of the landlord in respect of the tenanted property. The said section is a clear bar for the tenant to deny the title of the landlord. The defendant who is a tenant cannot dispute the ownership of the suit premises. In his cross-examination at page-11 para-4, the defendant has stated as under:
"Every month I pay the rents through cheques in the name of first and 2nd plaintiffs by dividing the rents equally. Since about four years, I have been paying the rents in the above manner. The other members of the Sha Manmul's family informed me to pay the rents in the name of first and 2nd plaintiffs."
The aforesaid version of DW.1 in his cross-examination clearly disclose that the defendant has been paying the rents to the plaintiff nos.1 & 2 equally admitting that they are the owners of the suit schedule property. His version further disclose that the other members of the Sha Manmul's family have also admitted the ownership 20 O.S.No.1782/2011 of the plaintiffs and informed the defendant to pay the rents in the name of the plaintiffs. Merely because Esx.P.1 lease deed is in the name of M/s Shanghvi Manmall Rajaji & Co., represented by Sha Manmul, itself is not a ground to come to the conclusion that the plaintiffs are not the owners of the suit property. It is pertinent to note that original lease agreement was executed in the year 1992. The cross-examination version of PW.1 clearly discloses that M/s Shanghvi Manmul Rajaji & Company's family is a Hindu Undivided Family and the said Company is in the name of paternal grand father of the first plaintiff and great grand father of the 2nd plaintiff. Previously in the family partition entered in the year 2009, the suit property was allotted to the plaintiffs. Ex.P.1 is a document much more prior to the partition in the family. Thus, viewing from any angle, the plaintiffs have established that they are the owners of the suit schedule property and the defendant is a tenant under them.Hence, I answer Issue no.1 in the affirmative. 21 O.S.No.1782/2011
19. Issue no.2 : According to the plaintiffs, by issuing Ex.P.2 notice, they have terminated the tenancy of the defendant as required under Sec.106 of T.P.Act. The bone of contention of the learned Counsel appearing for the defendant is that the plaintiffs have issued innumerable notices against the defendant. But, the said notices are technically bad on the ground that the notices do not reflect that they have been issued under Sec.106 of T.P.Act and no documents were sent by the plaintiffs along with the notices to prove the alleged ownership. Even after the issuance of notices, the plaintiffs are receiving the rents thereby waiving the notices issued. Hence, the notice is bad in law. Ex.P.2 notice is dated 24.7.2009. Ex.P.3 notice is dated 9.9.2009. Ex.P.5 notice dated 23.8.2010. No doubt, the plaintiffs issued notice on three occasions. The last notice issued by the plaintiff is Ex.P.5 i.e., notice dated 23.8.2010. The recitals of Clause-2 of Ex.P.1 i.e., the lease deed dated 22 O.S.No.1782/2011 11.5.1992 disclose that the tenancy commences on the first day of each month and expires on the last day of same month. Thus, it is clear that it is month to month lease. The recitals of the lease deed further disclose that the duration of the lease is for a period of ten years and an option is given that the lease can be renewed for a further period of five years. The recitals of Ex.P.2 notice disclose that the plaintiffs have directed the defendants to pay the arrears of rent for the month of April, May and June 2009 and in Ex.P.3 notice, the plaintiffs have terminated the tenancy and directed the defendant to quit and handover the possession of the premises granting six months' time to the defendant to vacate the schedule premises. Thereafter, Ex.P.5 notice came to be issued since the defendant failed to comply Ex.P.3 notice. Thus, it is clear that Ex.P.2 notice is not issued to quit and vacate the schedule premises, but the Exs.P.3 and P.5 were issued under Sec.106 of Transfer of Property Act, asking the defendant to vacate 23 O.S.No.1782/2011 the schedule premises. Under these circumstances, the defendant cannot contend that the notices issued to the defendant are not under Sec.106 of the T.P.Act. It is pertinent to note that the plaintiffs became the owners of the suit schedule property as per the family partition deed of the year 2009. In view of Sec.116 of the Indian Evidence Act, the plaintiffs need not send the title deeds of the suit property to show that they are the owners of the suit property at the time of issuance of notice to the defendant.
20. It is pertinent to note that Ex.P.2, P.3 & P.5 notices were issued to the defendant by registered post acknowledgement due. Exs.P.2(b),P.3(a) and P.5(b) are the postal Acknowledgement due cards. The recitals of the said document disclose that notices issued to the defendant by registered post acknowledgement due have been served. The defendant did not cause any reply to the said notices and did not raise his little finger towards the plaintiffs with respect to the ownership of the suit 24 O.S.No.1782/2011 schedule property. If really the plaintiffs are not the owners of the suit schedule property, the defendant would not pay the rent to the plaintiffs and would not keep quiet without giving any reply to the said notices. Under these circumstances, the contention raised by the defendant that no title deeds are annexed to the said notices and the plaintiffs are not the owners of the suit schedule property is clearly an after thought. The bone of contention of the defendant is that the attornment of tenancy is bad in law and cannot be considered as notice under Sec.106 of the T.P.Act. As against the said argument, the learned Counsel appearing for the plaintiffs drew the attention of this court to the recitals of Ex.p.2 and argued that in Ex.P.2, the plaintiffs conveyed the defendant indicating the ownership over the suit schedule property and further argued that thereafter the defendant has kept on paying the monthly rents. Subsequently the plaintiffs issued notices i.e., Exs.P.3 and P.5 and further contended that from the date of 25 O.S.No.1782/2011 termination of tenancy, the defendant is in unauthorized possession of the suit schedule property. It is pertinent to note that all the above three notices were served on the defendant. Sec.106 of the T.P.Act reads as under:
"Duration of certain leases in the absence of written contract or local usage - (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purpose 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."
In the instant case, the plaintiffs issued Ex.P.5 i.e., the last notice on 23.8.2010. Undisputedly, the recitals of Ex.P.1 i.e., lease agreement discloses that the lease is month to month lease. By giving Ex.P.5 notice, the plaintiffs have complied the provisions of Sec.106 of the T.P.Act. In Ex.P.5 notice, the plaintiffs have given six months time to the defendant to vacate the suit schedule property. Inspite of that, the defendant has failed to 26 O.S.No.1782/2011 comply with the notice. Under these circumstances, in my considered opinion, the plaintiffs have established that they have issued notice terminating the tenancy of the defendant as contemplated under Sec.106 of the T.P.Act. Hence, I answer Issue no.2 in the affirmative.
21. Issue No.3 : The contention of the plaintiffs is that by issuing termination of tenancy notice, the plaintiffs have informed the defendant and from the date of termination of tenancy, the defendant is in unlawful occupation of the suit schedule premises. Hence, the defendant is liable to pay the damages at the rate of Rs.25/- p.sq.ft., per month for the unlawful occupation of the suit premises. As against the said contention, the learned Counsel appearing for the defendant has contended that from the date of inception, the defendant is paying the rents to the plaintiffs and the plaintiffs have received the rents without protest. Hence, claiming damages by the plaintiffs is misconceived. The learned Counsel appearing for the defendant further argued that 27 O.S.No.1782/2011 the grant of damages cannot be considered unilaterally without determination of the same at an enquiry and any such damages awarded would not be binding on the tenant.
22. The learned Counsel appearing for the defendant has relied on an unreported decision of the Hon'ble High Court of Karnataka in RFA 198/2015 - M/s Auto World Vs. Smt.K.V.Satyavathi and drew the attention of this court to Page nos.35 & 36 of the Judgment of Hon'ble High Court of Karnataka wherein it is observed as under:
"It is also to be kept in view that "rent"
is defined as the consideration for a lease. When that relationship is terminated, it would be incongruous to receive any further consideration, except when the law expressly enables such receipt. As for instance under Sec.112 of the T.P.Act, or where Rent Acts permit, such receipt of rent even during pendency of proceedings for eviction. Further, receipt of any amount as damages unilaterally, without determination of the same at an enquiry, cannot be binding on the tenant, and would be speculative as to the possibility of any such damages being quantified at a later stage."
28 O.S.No.1782/2011In support of the contention of the plaintiffs, the learned Counsel appearing for the plaintiffs has relied on a decision reported in AIR 1961 SC 1067, wherein the Hon'ble Apex Court has held as under:
"Transfer of Property Act (1882), Ss.106 and 116 - Contractual tenancy - Expiry of lease by efflux of time - Tenant continuing in possession by virtue of protection granted under Rent control Legislation - Payment and acceptance of contractual rent or statutory rent by landlord - Status of tenant holding over not acquired - Notice under S.106 not necessary."
The learned Counsel appearing for the plaintiffs has relied on another decision reported in AIR 1968 SC 919. In the said decision, the Hon'ble Apex Court has held as under:
"Transfer of Property Act (1882)Ss.105,8 - Lease or license - Test - Suit for ejectment of tenant after termination of tenancy - Compromise decree enabling decree-holder to execute decree in case of three consecutive failures to pay rent - Fresh lease held was not created."
The learned Counsel appearing for the plaintiffs has relied on another decision reported in 1998(7) SCC 184. In the light of the ratios laid down in the aforesaid 29 O.S.No.1782/2011 decisions, he argued that mere acceptance of rent will not revive the tenancy. He has further relied on a decision reported in (2006)1 SCC 228, wherein the Hon'ble Apex Court has held as under:
"Transfer of Property Act, 1882 - S.116 - Holding over despite landlord's protest - Futility of - Lease period expiring - Landlord requiring the tenant to vacate possession and further intimating him that any amount paid by that tenant after the expiry of the lease period would be consent for continuance of possession - In such circumstances, mere acceptance of rent by the landlord, held, did not renew the lease so as to confer on the erstwhile tenant the status of a tenant or a right to possession."
23. In the instant case, the defendant initially was a tenant under M/s Sanghvi Manmul Rajaji & Co. Subsequently the plaintiffs became the owners of the suit schedule property and the defendant has been paying the rent to the plaintiffs i.e., the father and son. Thus, it is clear that the defendant has admitted the ownership of the plaintiffs over the suit premises. Merely because the plaintiffs have received the rents even after the issuance of notice of termination of tenancy itself is not a ground 30 O.S.No.1782/2011 to come to a conclusion that the plaintiffs are not entitled for the damages subsequent to the termination of tenancy. The Hon'ble High Court of Karnataka in RFA no.198/2015 has held that "receipt of any amount as damages unilaterally, without determination of the same at an enquiry, cannot be binding on the tenant, and would be speculative as to the possibility of any such damages being quantified at a later stage". But, the Hon'ble Apex Court in the case of C.Albert Morris Vs. K.Chandrasekaran & others. Cited supra by the learned Counsel appearing for plaintiffs has clearly held that "mere acceptance of rent by the landlord, should not be treated as landlord's consent for continuance of possession and renewing the lease so as to confer on the erstwhile tenant the status of a tenant or a right to possession". In the instant case, the plaintiffs have issued notice of termination of tenancy under Ex.P.5 and that has been served on the defendant by registered post acknowledgement due. The defendant has not replied to 31 O.S.No.1782/2011 the said termination notice. There was no impediment for him to take all those contentions raised by him in the argument in the reply. Under these circumstances, the contention raised at the fag end of the case that after issuance of attornment notice, the plaintiffs have received the rents and therefore they are not entitled for damages holds no water.
24. The plaintiffs have claimed damages at the rate of Rs.25/- P.Sq.ft., per month on the ground that after termination of tenancy, the defendant is in unlawful occupation of the suit schedule premises. The heavy burden is on the plaintiffs to establish that they are entitled for damages at the rate of at the rate of Rs.25/- P.Sq.ft. per month. No cogent material is produced by the plaintiffs to show that the suit schedule premises if leased out, would fetch the rent of at the rate of Rs.25/- P.Sq.ft., per month. The plaintiffs have not examined any independent witness other than the first plaintiff to show 32 O.S.No.1782/2011 that the plaintiffs are entitled for damages at the rate of at the rate of Rs.25/- P.Sq.ft. per month.
25. In his cross-examination at page-8, the first plaintiff i.e., PW.1 has stated that he has been receiving the rent since 2009. The period of tenancy as per Ex.P.5 comes to an end on 28.2.2011. The plaintiffs are claiming the damages at the rate of Rs.30/- p.sq.ft., in Ex.P.5 notice. The plaintiffs themselves are not consistent in claiming the damages per square feet. The initial rent fixed for the suit premises as per Ex.P.1 was Rs.8,000/- in the year 1992 and it was increased to Rs.27,000/-. Exs.D.6 to D.11 are the statements of account pertaining to the defendant maintained by the State Bank of Mysore, Shankarapuram Branch, Bangalore. The recitals of the said documents coupled with the version of DW.1 disclose that the defendant has been paying the rent even after termination of tenancy. Whatever the amount paid by the defendant after the termination of tenancy is to be considered as damages 33 O.S.No.1782/2011 received by the plaintiffs. According to the defendant it was agreed between the family members of M/s Sanghvi Manmul Rajaji & Co., to continue the possession till the year 2021. No fresh lease agreement was executed. A suggestion is made to PW.1 to that effect, but he has denied it. Except the bare suggestion, there is no iota of material to show that the plaintiffs' family members agreed to continue the possession of the defendant till 2021. If really the family members of the plaintiffs had agreed to the said conditions, there was no impediment for the defendant to take the said contention at the earliest point of time by giving reply to the notice issued by the plaintiffs. In the opinion of this Court, since the plaintiffs have failed to establish that they are entitled for damages at the rate of Rs.25/- p.sq.ft., per month and they have been receiving the amount even after termination of tenancy at the rate of Rs.27,000/- per month, it is just and proper to grant damages to the plaintiffs at the rate of Rs.27,000/- per month from the 34 O.S.No.1782/2011 date of termination of tenancy. Hence, I answer Issue no.3 partly in the affirmative holding that the plaintiffs are entitled for damages at the rate of Rs.27,000/- per month from the date of termination of tenancy.
26. Issue no.4 : The learned Counsel appearing for the defendant vehemently contended that the defendant is running a pharmaceutical industry in the petition schedule premises and he has borrowed money from different sources and made heavy investment and installed machinery and spent lakhs of rupees and he has been running his said pharmaceutical industry under the name and style of "M/s Amazon Drugs Pvt.Ltd. since 23years. If an ejectment order is passed, he will be put to irreparable loss. To substantiate his contention, the defendant i.e., DW.1 has produced Ex.D.2 i.e., the letter issued by State bank of Mysore, S.P.Road Branch, Bangalore, with respect to sanction of loan facilities and Ex.D.3 to show that he has employed people and paying PF to them and Ex.D.4 i.e., Valuation report issued by 35 O.S.No.1782/2011 one S.S.Industrial consultant. The learned Counsel appearing for the defendant further contended that the defendant had invested huge amount in the pharmaceutical industry. He has also produced photographs of the machinery installed by the defendant. It is pertinent to note that the defendant is a tenant under the plaintiffs. Merely because he has invested huge amount to run the pharmaceutical industry itself is not a ground not to pass any eviction order. The defendant is running the industry in the suit schedule property for a considerable period of time. The plaintiffs have specifically stated that they are intending to start a garment manufacturing industry and the suit schedule premises is very much suitable for setting up of the said industry. Thus, it is clear that the suit schedule premises is required by the plaintiffs for their use.
27. The learned Counsel appearing for the defendant contended that it will be difficult for the defendant to shift the industry and to dismantle the 36 O.S.No.1782/2011 machinery and sudden removal of the defendant industry is not feasible and further contended that by obtaining loan from KSFC and other financial institutions, the defendant is running the industry and made some internal partitions and other safety requirements to comply the norms of the Drug Rules. It is pertinent to note that the said arrangements are made by the defendant for the smooth running of his industry. The recitals of Clause-8 of Ex.P.1 clearly disclose that no doubt permission is given by the lessor i.e., the ancestor of the plaintiffs to make internal alterations, additions etc. But, there is a stipulation that while vacating the building, it should be handed over as it was while the lessee has occupied. Therefore, after lapse of considerable period, the defendant cannot contend that it is difficult for him to remove the machinery and stocks and equipments installed in the suit schedule premises. He is bound by the recitals of Ex.P.1 particularly Clause- 8 of Ex.P.1 lease agreement. Regarding any 37 O.S.No.1782/2011 superstructure effected in the suit schedule premises, the defendant has done the said superstructure for the convenient running of his pharmaceutical industry and as per Clause-8 of Ex.P.1, it is the duty of the defendant to remove all those superstructures and handover vacant possession of the plaint schedule premises to the plaintiffs as it was when the said premises was leased to the defendant. Hence, I answer Issue no.4 in the affirmative.
28. Issue no.5 : In view of my foregoing discussion on the above issues, I proceed to pass the following:
ORDER The suit of the plaintiffs is decreed with costs.
The defendant shall quit, vacate and handover the vacant possession of the suit schedule property to the plaintiffs within three months from the date of this Order.
The defendant shall pay damages at the rate of Rs.27,000/- per month with interest at the rate of 12% 38 O.S.No.1782/2011 p.a., from 1.3.2011 till the date of delivery of vacant possession of the suit schedule property to the plaintiffs.
The damages if any paid by the defendant after the termination of tenancy, shall be adjusted towards the arrears of damages.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 25th day of June, 2015).
(RAVI M.NAIK), I Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 Mahendra Kumar @ Mahendra Bhandari LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 Certified copy of lease deed dated 11.5.1992 " P-2 Notice " P-2(a) Postal receipt " P-2(b) Postal AD " P-3 Notice " P-3(a) Acknowledgement " p.3(b&c) Postal Receipts " p.4 UCP 39 O.S.No.1782/2011 " p.5 Notice dated 23.8.2010 " p.5(a) Postal receipt " p.5(b) Acknowledgement due card " p.5(c) Postal receipt " p.6 Returned postal cover " p.7 Survarna Khata Uttara patra " p.8 Khata Certificate " p.9 Tax paid receipt LIST OF WITNESSES EXAMINED FOR DEFENDANTS DW.1 K.T.Sadhu LIST OF DOCUMENTS MARKED FOR DEFENDANTS Exs.D-1 Khata extract " D-2 Letter of Credit dated 27.5.2014 " D-3 Copy of combined challan of account " D-4 Valuation report " D-5 Discharge summary D.6 to D.11 Copies of bank statements (RAVI M. NAIK), I Addl.City Civil & Sessions Judge, Bangalore.