Bangalore District Court
M/S Naveen Hi-Tech Realtor Pvt.Ltd vs Regus Murpy Road Business Centre on 11 June, 2018
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY
Dated this the 11th Day of June 2018
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Judge,Bangalore City.
ORIGINAL SUIT NO.1545/2010
Plaintiff:
M/s Naveen Hi-tech Realtor Pvt.Ltd, No.1,
Corporation Shopping complex, Palai bustand,
Tirunelveli-2, represented by its Chairman-
cum-Managing Director Mr.N.Kalyana
Sundaram S/o P.Nambi,aged about 50 years
[by Advocate Sri B.L.Sajeev]
/ Versus /
Defendants:-
Regus Murpy Road Business Centre
Pvt.Ltd., Millenia, Level 1, Tower B, No.1 &
2 Murphy Road, Ulsoor, Bangalore-560
008, represented by its Managing Director
[by advocate Sri H.N.Vasudevan]
: 06/03/2010
Date of Institution of the suit
For recovery of
Nature of suit :
money
Date of commencement of
: 03/07/2013
Evidence
Date on which the judgment is
: 11/06/2018
pronounced
Duration taken for disposal Years Months Days
:
08 04 05
2 O.S.No.1545/2010
JUDGMENT
This suit is filed by the Plaintiff's Company represented by its Chairman-cum-Managing Director against the Defendant's Company represented by its Managing Director, for recovery of a sum of Rs.6,11,628/- with pendente lite and future interest @ 24% p.a. from the date of filing of the suit till realization.
2. The case of the plaintiff is that it is carrying on the business as Renewable Energy Solution Provider and also dealing in Real Estate and Windmill projects. The defendant is providing fully furnished office accommodation along with other allied services.
It is further submitted by the Plaintiff's Company that for the purpose of its business, the Plaintiff's Company approached the Defendant's Company for providing office accommodation. The Defendant's Company agreed for the same and a Business Centre Service Agreement dt.12.2.2008 3 O.S.No.1545/2010 came to be executed between the plaintiff and defendant. The terms of said Agreement were to be expired on 31.5.2008. The plaintiff was put in possession of the office accommodation in Murphy road Business Centre, which is the suit schedule premises.
Further it is submitted by the plaintiff that the plaintiff was regular in paying the monthly fee to the Defendant's Company. Though the term of the agreement dt.12.2.2008 was to be expired on 30.5.2008, the plaintiff made advance payment of Rs.1 lakh to the defendant vide Cheque No.710834 dt.16.5.2008 drawn on ICICI Bank and also issued two more cheques in favour of defendant for Rs.1,42,066/- each vide cheque No.102380 dt.25.5.2008 and cheque No.102381 dt.30.5.2008.
It is further submitted by the Plaintiff's Company that it decided not to carry on its activities in the schedule premises and hence issued advance notice to the defendant intimating its decision and requested the defendant not to deposit the cheques 4 O.S.No.1545/2010 issued by the Plaintiff's Company for encashment. In spite of said notice, the Defendant's Company deposited the said cheques and collected the amount.
It is further submitted by the Plaintiff's Company that the nature of its business is such that many of its clients/customers visit its office regularly for business purposes. On 8.9.2008, the officials of the Defendant's Company did not allow the clients of the Plaintiff's Company to enter the schedule premises without any reason. The act of officials of the Defendant's Company seriously affected the business of the plaintiff, causing huge loss to the tune of Rs.3 Crores. Further the Defendant's Company let out the schedule premises to some third party without informing the plaintiff and without refunding the advance payment made by the plaintiff towards monthly fee and also the security deposit.
It is further submitted by the Plaintiff's Company that due to illegal action and non co- 5 O.S.No.1545/2010 operation of the defendant, the Plaintiff's Company vacated the schedule premises and handed over the vacant possession of the schedule premises to the defendant and in this regard the plaintiff informed the defendant ten days in advance before expiry of first agreement and requested to refund a sum of Rs.4,73,131/- without any deduction, which included Rs.90,000/- which was paid initially as security deposit at the time of initial agreement. However the Defendant's Company did not refund the said amount in spite of several reminders from the plaintiff. Since the defendant has let out the schedule premises, which was in possession of the plaintiff to third party, the defendant has no right to keep the advance payment and the security deposit amount paid by the plaintiff and the defendant is legally bound to refund the said amount to the plaintiff.
It is further submitted by the Plaintiff's Company that since the defendant failed to refund the aforesaid amount, the plaintiff issued a legal 6 O.S.No.1545/2010 notice to the defendant on 27.11.2008, calling upon the defendant to pay a sum of Rs.4,74,131/-. In spite of service of said notice, the defendant failed to pay the amount as demanded by the plaintiff. Hence the plaintiff has filed this suit for recovery of said amount from the defendant.
The cause of action for filing of this suit arose on 12.2.2008 when the plaintiff entered into a Business Centre service Agreement with the defendant and subsequently when the plaintiff issued cheques dt.16.5.2008, 25.5.2008 and 30.5.2008 in favour of the defendant towards advance monthly fees, and further when the defendant deposited those cheques for collection in spite of plaintiff's request not to deposit those cheques for collection, and further on 27.11.2008 when the plaintiff demanded for the amount paid by them towards security deposit and advance monthly fees by sending a legal notice. The cause of action still continues, as the defendant has not yet made the payment due to the plaintiff as demanded in the 7 O.S.No.1545/2010 legal notice. Hence the plaintiff is constrained to file this suit for recovery of money from the defendant.
3. On the other hand, the Defendant's Company filed written statement, submitting that the suit filed by the Plaintiff's Company is false and frivolous, hence requested the court to dismiss the suit in lumine.
It is submitted by the Defendant's Company that it is incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of providing business centre facilities to its clients, wherein only a limited right to use the service office space and facilities is given to the client subject to certain terms and conditions. The possession of the office space is not transferred to the client and the client is given merely limited rights to use the furnished office space and facilities against timely payment of agreed fee/charges.
It is further submitted by the defendant that the plaintiff entered into a service agreement with the defendant on 12.2.2008 for a fully serviced office 8 O.S.No.1545/2010 space bearing No.35 in Level 1, Tower B, the Millennia, 1 and 2, Murphy road, Ulsoor for a monthly fee/charges of Rs.33,708/- and the duration of the said agreement was 3.5 months with an option of renewal for further period by executing a fresh service agreement. The defendant renewed the service agreement by executing another service agreement dt.16.5.2008 with respect to office space No.135 for the period between 1.6.2008 to 30.11.2008. The plaintiff sent a letter dt.12.8.2008 terminating the service agreement and for refund of the security deposit, to which the defendant replied by an e-mail that the deposit without the exit charges can be refunded with 60 days prior written notice. As per the procedures the defendant sent an e-mail dt.11.11.2008 appraising the plaintiff about the services offered by the defendant after termination of business service agreement and requested the plaintiff to contact the defendant for any such post termination services.
9 O.S.No.1545/2010
It is further submitted by the defendant that the terms of the business service agreement expired on 30.11.2008 and the defendant sent an email dt.1.12.2008 requesting the plaintiff to give the name of the person to make the cheque for refund of balance security deposit. But the plaintiff failed to furnish the details as to in whose name the cheque is to be drawn for the refund of the balance security deposit. As the plaintiff did not reply to the defendant's letter dt.1.12.2008, they sent another letter dt.19.1.2009 furnishing the actual deductions made from the advance amount received from the plaintiff and the actual amount to be paid to the plaintiff after deductions. But the plaintiff, instead of furnishing the requested details and accepting the balance amount, filed this false and frivolous suit.
The defendant denied all the allegations made in all paras of the plaint. In para 12 of the written statement, the defendant admitted the averments made in para 3 of the plaint as true to the extent that the plaintiff approached the defendant to rent 10 O.S.No.1545/2010 an office space and the defendant agreed for the same. The defendant also admitted execution of service agreement between the plaintiff and defendant on 12.2.2008 which would expire on 31.5.2008. But the defendant denied that the plaintiff was put in possession of the office space. It is submitted by the defendant that the plaintiff was given only limited right to use the serviced office space and facilities on the timely payment of agreed fees as per the terms of the service agreement.
In para 13 of the written statement, the defendant denied the averments made at para 4 of the plaint as false and further submitted that the plaintiff entered into Service Agreement with the defendant on 12.2.2008, the duration of which was 3.5 months and further renewed the Service Agreement by executing another Service Agreement dt.16.5.2008 for the period between 1.6.2008 to 30.11.2008 with respect to the office space No.135. As per the terms and conditions of the Service 11 O.S.No.1545/2010 Agreement, the defendant deducted the amounts from the advance amount received from the plaintiff.
It is further submitted by the defendant that the terms of the business service agreement expired on 30.11.2008 and the defendant sent an email dt.1.12.2008 requesting the plaintiff to give the name of person to make the cheque for refund of balance security deposit. But the plaintiff failed to furnish the details as to in whose name the cheque is to be drawn for the refund of the balance security deposit. As the plaintiff did not reply to the defendant's letter dt.1.12.2008, they sent another letter dt.19.1.2009 furnishing the actual deductions made from the advance amount received from the plaintiff and the actual amount to be paid to the plaintiff after deductions.
The defendant denied the averment made at para 5 of the plaint as false and misleading. It is submitted by the defendant that the officials of the defendant never restricted the entry to the clients of plaintiff on any date much less on 8.9.2008. It is 12 O.S.No.1545/2010 required for all the visitors to collect the passes from the security at the entrance and sign the register maintained by the defendant before entering the building for security purposes and same is strictly followed by the management of the building. This fact was notified by the defendant to the plaintiff. The defendant never restricted entry to any client of the plaintiff holding requisite pass issued by the security personnel of the building after recording the entry in the register maintained by the defendant in the business centre.
It is denied by the defendant that the plaintiff requested for refund of Rs.4,74,131/- as averred at para 6 of the plaint and further submitted by the defendant that after expiry of the first Service Agreement on 31.5.2008,the plaintiff renewed the Service Agreement by executing another Service Agreement dt.16.5.2008 for the period between 1.6.2008 to 30.11.2008 with respect to the office space No.135 which was terminated by the plaintiff by its letter dt.12.8.2008 and the plaintiff for the 13 O.S.No.1545/2010 first time made a request for refund of security deposit, to which the defendant replied by an e-mail that the deposit without exit charges can be refunded with 60 days prior written notice. As per the procedures the defendant sent an e-mail dt.11.11.2008 appraising the plaintiff about the services offered by the defendant after termination of business service agreement and requested the plaintiff to contact the defendant for any such post termination services.
It is further submitted by the defendant that the plaintiff had filed O.S.No.6712 of 2008 for the relief of injunction against the defendant. In the said suit, the defendant in its written statement contended that the plaintiff failed to furnish the name of the person in whose name the cheque for refund of balance security deposit should be made. Even in the said suit the plaintiff never mentioned the name of the person in whose name the cheque for balance security deposit to be made. The said suit was dismissed as withdrawn on 25.2.2010. 14 O.S.No.1545/2010
At para 17 of the written statement, the defendant denied the averments made at para 8 of the plaint as false and submitted that there is no cause of action arisen for filing of this suit. On these grounds the defendant requested the court to dismiss the suit filed by the plaintiff with exemplary costs.
4. On the pleadings of the plaint and the written statement filed by the defendant, my predecessor has framed the following three Issues on 10.9.2012:-
(1) Whether the plaintiff prove that the defendant is liable to pay Rs.4,74,131/- with cost and interest as alleged in the plaint?
(2) What relief the plaintiff is entitled? (3) What order or decree?
5. In this case the Chairman-cum-Managing Director of the Plaintiff's Company adduced his oral evidence as PW1 by way of filing his sworn affidavit and in further chief examination of Pw1, the documents Ex.P1 to P5 are marked. No any 15 O.S.No.1545/2010 independent witness has been examined by the side of the plaintiff. The Director of the Defendant's Company adduced his oral evidence by way of filing his sworn affidavit as DW1 and in further chief examination of DW1, the documents produced by the defendant are marked as Ex.D1 to D3. No independent witnesses have been examined by the side of defendant. After heard the arguments on both sides, the case is posted for judgment.
6. My findings on the above Issues are as follows:-
Issue No.1: Partly in the affirmative. Issue No.2; Partly in the affirmative Issue No.3: As per final Order,for the following reasons:-
REASONS ISSUE NOS.1 TO 3:
7. The case of the plaintiff is that it is carrying on the business as Renewable Energy Solution Provider and also dealing in Real Estate and Windmill projects. The Defendant's Company 16 O.S.No.1545/2010 provided office accommodation to the Plaintiff's Company. Accordingly a Business Centre Service Agreement dt.12.2.2008 came to be executed between the plaintiff and defendant and the terms of said Agreement were to be expired on 31.5.2008. The plaintiff was put in possession of the office accommodation in Murphy road Business Centre, which is the schedule premises. The plaintiff made advance payment of Rs.1 lakh to the defendant vide Cheque No.710834 dt.16.5.2008 drawn on ICICI Bank and also issued two more cheques in favour of defendant for Rs.1,42,066/- each vide cheque No.102380 dt.25.5.2008 and cheque No.102381 dt.30.5.2008. However the Plaintiff's Company decided not to carry on its activities in the schedule premises and hence issued advance notice to the defendant intimating its decision and requested the defendant not to deposit the cheques issued by the Plaintiff's Company for collection. But in spite of said notice, the Defendant's Company deposited the said cheques and collected the amount. It is further case 17 O.S.No.1545/2010 of the Plaintiff's Company that on 8.9.2008, the officials of the Defendant's Company did not allow the clients of the Plaintiff's Company to enter the schedule premises without any reason which seriously affected the business of the plaintiff, causing huge loss to the tune of Rs.3 Crores. Further the plaintiff came to know that the Defendant's Company let out the schedule premises to some third party without informing the plaintiff and without refunding the advance payment made by the plaintiff towards monthly fee and also the security deposit. The plaintiff informed the defendant ten days in advance before expiry of first agreement and requested to refund a sum of Rs.4,73,131/- without any deduction, which included Rs.90,000/- which was paid initially as security deposit at the time of initial agreement. But the Defendant's Company did not refund the said amount. Further the plaintiff has already vacated the suit premises which has been already let out to some third party and hence the plaintiff issued a legal notice to the defendant on 18 O.S.No.1545/2010 27.11.2008 calling upon the defendant to pay a sum of Rs.4,74,131/- paid towards security deposit and advance monthly fee. Here the plaintiff also prays for grant of interest at 24% p.a. on the due amount of Rs.4,74,131/- from the defendant.
8. In order to prove whether actually the defendant is due a sum of Rs.4,74,131/- including advance amount and also security deposit, the Chairman-cum-Managing Director of the plaintiff company by name N.Kalyana Sundaam adduced his oral evidence as PW1 by way of filing his sworn affidavit and in further chief examination of Pw1, the documents Ex.P1 to P5 are marked. Here in the cross-examination of PW1, it is admitted that there is an Agreement in between the plaintiff and defendant for providing well occupied office premises with all amenities to the plaintiff and accordingly the plaintiff entered into a service agreement with the defendant on 12.2.2008 for a fully serviced office space bearing No.35 in Level 1, Tower B, the Millennia, 1 and 2, Murphy road, Ulsoor for a 19 O.S.No.1545/2010 monthly fee/charges of Rs.33,708/- and the duration of the said agreement was 3.5 months which would expire on 31.5.2008. This fact was also admitted in the written statement filed by the defendant and also in the sworn affidavit filed by DW1. It is also admitted that the service agreement was renewed by executing another service agreement dt.16.5.2008 with respect to the same office space as stated above for the period between 1.6.2008 to 30.11.2008. Here in the cross-examination of PW1 he deposed that the plaintiff has made payment to Defendant's Company by way of cheques and paid Rs.1 lakh as security deposit by way of cheque and for the further renewal period, the plaintiff paid two cheques for Rs.1,42,066/- each as security deposit. In the cross-examination of DW1, he also admitted the Agreement held in between plaintiff and defendant on 12.2.2008 for a period of 3½ months. DW1 also admitted that the term of the first agreement entered was to be expired on 31.5.2008. DW1 also admitted that the plaintiff has made 20 O.S.No.1545/2010 payment of advance deposit amount and the said advance amount paid is refundable after deducting the dues which are pending. Further in the cross- examination of DW1, goes to show that the renewal of the Agreement is at the option of the plaintiff and there was automatic renewal of the agreement as per the Clause 10 of the Agreement.
9. Here in the written statement and also in the chief examination of DW1, the defendant stated that through an email dt.1.12.2008, the defendant requested the plaintiff to give the name of the person to make the cheque for refund of balance security deposit. From the admissions in the cross- examination of DW1, it goes to show that the plaintiff has already vacated the service provider office belongs to the defendant and it is the obligation on the part of the defendant to repay the security deposit and advance amount made by the plaintiff as per the Agreement. The said Agreements are marked as Ex.P1 and P2 and the Notice got issued by the plaintiff through the advocate is 21 O.S.No.1545/2010 marked as Ex.P3 and RPAD and postal receipts are marked as Ex.P4 and P5. But here in the cross- examination of DW1 and also in the cross- examination of PW1, it goes to show that initially the plaintiff paid Rs.1 lakh as advance payment while entering into Agreement with the plaintiff on 12.2.2008 which would be expired on 31.5.2008. But here PW1 has not produced any scrap of paper as to prove that after renewal of the Agreement, the plaintiff has issued two more cheques in favour of defendant for Rs.1,42,066/- each vide cheque No.102380 dt.25.5.2008 and cheque No.102381 dt.30.5.2008. Though DW1 admitted the said fact in the cross-examination at page 7, the said admission is not suffice as to prove that the plaintiff has paid amount of Rs.1,42,066/-each through two cheques as mentioned above. Because there is no endorsement produced by PW1 in order to prove that the above two cheques issued by the plaintiff has been encashed by the defendant. Therefore when there is no documentary evidence as to prove that 22 O.S.No.1545/2010 the above mentioned two cheques have been encashed by the defendant, then said evidence cannot be taken into consideration unless supported by documentary evidence. The documentary evidence prevails over the oral evidence. Under these circumstances the admission given by DW1 with regard to the above said alleged cheque said to has been issued by the plaintiff is not sufficient as to prove that the defendant also encashed Rs.1,42,066/- each vide cheque No.102380 dt.25.5.2008 and cheque No.102381 dt.30.5.2008. In the cross-examination of DW1, he categorically denied and not admitted the suggestions made by the side of the plaintiff that the Defendant is liable to pay Rs.4,74,131/- to the Plaintiff's Company.
10. Here DW1 also produced authorization letter as Ex.D1, two e-mail messages dt.1.11.2008 as Ex.D2, Certificate u/S 62B of Evidence Act as Ex.D2(a) and statement of account as per Ex.D3. In Ex.D3, nowhere it is mentioned that the defendant company has got encashed cheque No.102380 23 O.S.No.1545/2010 dt.25.5.2008 and cheque No.102381 dt.30.5.2008 for Rs.1,42,066/- each. Therefore the plaintiff utterly failed to prove that the defendant is liable to pay sum of Rs.4,74,131/-. If actually the defendant has encashed the above said cheques, then PW1 would have produced the endorsements or statement of accounts belongs to the defendant in order to establish that the Defendant's Company has encashed the amount by presenting the above said cheques issued by the plaintiff.
11. In this case the plaintiff proved the Agreement entered in between the Plaintiff's Company with the Defendant's Company on 12.2.2008 which would expire on 31.5.2008. It is also established that said Agreement was renewed by another service agreement dt.16.5.2008 for the period between 1.6.2008 to 30.11.2008 with respect to the office space No.135. So in this case in the written statement filed by the defendant and also in the oral evidence of DW1, it is not admitted that the plaintiff requested for refund of Rs.4,74,131/- before 24 O.S.No.1545/2010 expiry of first service agreement. However in the written statement as well as in the chief examination of DW1, it is admitted for the first time that the Plaintiff's Company requested for refund of security deposit which was paid by the Plaintiff's Company at the time of initial Agreement dt.12.2.2008 held with the Defendant's Company. But here PW1 has not produced any endorsement or bank statement of account of the Defendant's Company in order to prove that the Defendant's Company has encashed by presenting cheque No.102380 dt.25.5.2008 and cheque No.102381 dt.30.5.2008 for Rs.1,42,066/- each. Under these circumstances the plaintiff is not entitled to recover the amount of Rs.4,74,131/- excluding Rs.1 lakh which was paid to the Defendant's Company at the time of initial agreement. So therefore the plaintiff is entitled to recover the amount of Rs.1 lakh with interest at 24% p.a. from the date of suit till realization, because the service agreement in between the plaintiff and defendant is for the commercial purpose. Therefore 25 O.S.No.1545/2010 under these circumstances the plaintiff is entitled to interest at the rate of 24% p.a. on the due amount to be paid by the defendant. Hence I answered Issue Nos.1 to 3 partly in the affirmative and proceed to pass the following Order:-
ORDER The suit filed by the plaintiff is hereby partly decreed for Rs.1,00,000/-(Rupees One lakh only) with costs.
Further decreed that the plaintiff is entitled to recover the due amount of Rs.1,00,000/- from the defendant with interest at 24% p.a. from the date of the suit till realisation.
Further it is directed to the defendant to pay the due amount as per the Order along with interest within three months from the date of this Order.
Draw decree accordingly. (Dictated to the Judgment Writer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 11th day of June 2018) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.26 O.S.No.1545/2010
ANNEXURE List of witnesses examined on behalf of the Plaintiffs P.W.1 N.Kalyana Sundaram List of documents marked on behalf of the Plaintiffs :
Ex.P1 True copy of the agreement
dt.12.2.2008
Ex.P2 Copy of the renewal agreement
Ex.P3 Copy of the lawyer's notice
Ex.P4 Postal receipt
Ex.P5 Postal acknowledgment
List of witnesses examined on behalf of the Defendants :
DW1 Priya Rathod List of documents marked on behalf of the Defendants :
Ex.D1 The authorization letter.
Ex.D2 2 e-mail messages dated
1.11.2008.
Ex.D2a Certificate u/s 62B of
Evidence Act.
Ex.D3 Statement of account.
XXXVIII Addl. City Civil and
Sessions Judge, Bangalore City.
Order pronounced in the Open Court
vide separate Judgment.
ORDER
The suit filed by the plaintiff is
hereby partly decreed for
Rs.1,00,000/-(Rupees One lakh only) with costs.
Further decreed that the plaintiff is entitled to recover the due amount of Rs.1,00,000/- from the defendant with interest at 24% p.a. from the date of the suit till realisation.
Further it is directed to the defendant to pay the due amount as per the Order, along with interest within three months from the date of this Order.
Draw decree accordingly. (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.