Bangalore District Court
K. Nagaraj vs M/S. Essar Telecom Retail Ltd on 19 October, 2019
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH75)
Dated this 19th Day of October 2019
PRESENT:
Sri. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO.27252/2009
PLAINTIFFS : K. NAGARAJ
S/o. Late Karibasappa
Aged about 69 years
(Since dead by Lrs)
1(a) GUNAVATHI
W/o.Late K.Nagaraj
Aged about 64 years
1(b) JAYASHREE .B.C
W/o. Chandrashekhar
Aged about 49 years
R/at: 74/2, 4th Main, 5th Cross
N.R.Colony
Bengaluru - 560 019.
1(c) N.RAGHU
S/o. Late. K.Nagaraj
2
OS.27252/2009
Aged about 45 years
1(d) N.MALLESH
S/o. Late K.Nagaraj
Aged about 43 years
PLAINTIFF, 1(a) (c) TO (d) ARE R/AT:
No.95, Ramakrishnappa Road
Cock Town
Bengaluru - 560 005
(REP BY: SRI.NARENDRA.P)
V/s
DEFENDANT: M/s. ESSAR TELECOM RETAIL Ltd.
S.R.House, 11, K.K.Marg
Mahalakshmi
Mumbai - 400 034
Represented by its Authorized
Signatory
(REP BY: SRI.C.M. VENKATA REDDY)
Date of Institution of the suit 12/11/2009
Nature of the Suit (Suit on pronote, suit for
declaration and possession, suit for injunction, Ejectment
etc.)
3
OS.27252/2009
Date of the commencement of recording of the
26/09/2011
Evidence.
Date of pronouncement of Judgment 19/10/2019
Total duration Year/s Month/s Day/s
09 11 07
JUDGMENT
Plaintiff Nagaraj has filed the instant suit for ejectment, recovery of damages of Rs.8,00,000/, future damages of Rs.1,00,000/ per month from the date of the suit till the defendant vacate and hand over the vacant possession of the suit property, to direct the defendant to hand over up to date TDS certificates and for costs.
FACTS OF THE CASE:
2. Plaintiff is the owner of suit property. He has given the suit property to defendant under LeaveCumLicense Agreement dated 21.09.2007. As per the terms of the said agreement, defendant is liable to pay license fee of Rs.75,000/ per month. The 4 OS.27252/2009 defendant has paid Security deposit of Rs.7,50,000/. As per the terms of the agreement, on termination of license defendant has to hand over the vacant possession of suit property in a tenantable condition subject to normal wear and tear by removing all the fixtures, equipments etc. plaintiff contends that, on 11/12/2008, defendant issued notice terminating the license of the suit property with effect from 10/03/2009, requested to refund the security deposit after deducting arrears of license fee and to take the possession of suit property. Plaintiff contends that, as per the terms of LeaveCumLicense Agreement dated:24/09/2007, the plaintiff is entitled to deduct the service tax from the security deposit. Plaintiff contends that, defendant has not vacated the suit property on 10/03/2009 and continued to be in unauthorized possession of the said property. Therefore, he adjusted the arrears of rent up to the month of February 2009 in the security deposit and requested defendant to vacate and hand over the vacant 5 OS.27252/2009 possession of suit property. Plaintiff contends that, though he was ready and willing to take the possession of suit property in the tenantanable condition by refunding the security deposit by deducting arrears of rent, defendant is not showing interest to hand over the vacant possession of the suit property. Plaintiff contends that, after termination of license, the possession of the defendant in the suit property is illegal, therefore it is liable to pay mesne profit/damages of Rs.1,00,000/ per month from March 2009. plaintiff contends that, from March 2009 to the October 2009, defendant is in due of Rs.8,00,000/ towards damages/mesne profit. Plaintiff contends defendant is not showing interest to hand over the vacant possession of the suit property in a tenantable condition. Therefore left with no alternative, he has filed the instant suit. On these and other grounds stated in the plaint, plaintiff prays to decree the suit and to grant the reliefs as prayed for.6
OS.27252/2009
3. Defendant M/s ESSAR Telecom Retail Ltd., resisted the suit by filing written statement. The authorized signatory of defendant has admitted that, defendant has taken the suit property from plaintiff under LeaveCumLicense agreement dated: 24/09/2007, at the time of making the above agreement, security deposit of Rs.7,50,000/ was paid to the plaintiff, on termination of license, the security deposit is to be refund without interest, it has terminated the license by issuing termination notice dated:11/12/2008 and agreed to hand over the vacant possession of suit property on 10/03/2009. Defendant contends that, in the termination notice, it is specifically stated that, on 10/03/2009, the plaintiff shall refund the security deposit by deducting 3 months license fee. Defendant contends that, though it is ready to hand over the vacant possession of the suit property on 10/03/2009, the plaintiff did not come forward to refund the security deposit amount. As per the terms and conditions of 7 OS.27252/2009 LeaveCumLicense agreement, handing over of possession and refunding of security deposit shall be made simultaneously. In view of plaintiff failed to refund the security deposit amount, the defendant did not hand over the keys of the suit property to the plaintiff. On 25/05/2009, it has issued remainder to the plaintiff to refund the security deposit and to take the keys of the suit property. Plaintiff issued reply to the said remainder on 10/06/2009 to hand over the possession of the suit property in a tenantable condition and also to pay damages of Rs.1,00,000/ per month and service tax. After receipt of reply it has issued rejoinder to the reply. Defendant contends that, as per the terms of LeaveCumLicense Agreement, it is not liable to hand over the keys of the suit property till the plaintiff refund the security deposit amount. Defendant contends that, plaintiff who failed to repay the security deposit to take the possession of suit property has filed the instant suit by making false allegation against it. On 8 OS.27252/2009 these and other grounds stated in the written statement, defendant prays to dismiss the suit and to direct the plaintiff to refund security deposit by deducting 3 months license fee.
4. During the pendency of the suit, plaintiff K.Nagaraj Passed away. His legal heirs were brought on record and they were designated as Plaintiff 1(a) to (d). During the lifetime of plaintiff, he filed IA.No.1 on 22/07/2010 U/Sec.151 of CPC, directing the defendant to vacate and hand over the vacant possession of suit property. On 25/08/2010, the said application was allowed and the defendant was directed to hand over the possession of the suit property. As per the said order, decree was passed and by filing execution petition, plaintiff has taken the possession of suit property.
5. On the basis of the pleading on 25/05/2011, the then presiding officer has formulated the following: 9
OS.27252/2009 ISSUES
1. Whether plaintiff proves that, defendant is in arrears of damages of Rs.8,00,000/?
2. Whether plaintiff is entitled for mesne profits at the rate of Rs.1,00,000/ per month from the date of suit?
3. Whether defendant proves that, he was ready to hand over possession of the property on 10/03/2009 and plaintiff failed to refund deposited amount of Rs.5,39,308/ after deducting arrears of license fee of Rs.2,10,692/?
4. Whether plaintiff is entitled for the relief sought for?
5. What order or decree?10
OS.27252/2009
6. On behalf of plaintiffs, plaintiff No.1(d) Mallesh was examined as PW1. He produced documents marked at Ex.P.1 to Ex.P.9. Defendant has not lead oral evidence. During the course of cross examination of PW1, the deed dated:24/09/2007 was marked at Ex.D.1.
7. Heard the learned counsel for the plaintiffs and perused record. Though sufficient time given, the learned counsel for the defendant has not submitted arguments. Hence defendant's arguments was taken as nil.
8. My findings on the above issues are as under:
Issue No.1: In the Negative Issue No.2: In the Negative Issue No.3: In the Affirmative Issue No.4: In the Negative 11 OS.27252/2009 Issue No.5: As per the final order for the following :
REASONS
9. ISSUE NO.1 to 3: These 3 issues are in respect of damages, future damages and refund of security deposit amount. They are interrelated and interconnected to each other. Therefore they are taken together for consideration to avoid repetition of facts and evidence and also for convenience.
10. In the instant case, there is no dispute that, defendant had taken the suit property of plaintiff under LeaveCumLicense Agreement dated:24/09/2007 agreeing to pay license fee of Rs.75,000/ per month; at the time of making the said agreement, defendant has paid Security deposit of Rs.7,50,000/ to plaintiff, as per the terms of the above said LeaveCumLicense agreement, defendant terminated the license by issuing Ex.P.4 Termination notice dated:11/12/2008 and the license came to an end on 12 OS.27252/2009 10/03/2009. There is also no dispute that, after issuance of termination notice, the defendant has not paid license fee. In Ex.P.4 Termination notice, the defendant called upon the plaintiff to refund the security deposit by deducting 3 months license fee. Plaintiff contends that, after termination of license, defendant has not vacated and handed over the vacant possession of suit property and continued in unauthorized possession of the suit property, therefore the defendant is liable to pay damages of Rs.1,00,000/ per month.
11. Plaintiffs to substantiate their contention, examined plaintiff 1(d) N. Mallesh as PW1. A perusal of record would show that, during the lifetime of plaintiff Nagaraj, he executed Ex.P.1 Power of Attorney in favor of his son PW1, Mallesh. On the basis of the Power of Attorney, he lead evidence as PW1. After the death of plaintiff, PW1 & other legal heirs of plaintiff were brought on record. Thus PW1 has given evidence in his capacity as attorney 13 OS.27252/2009 holder of original plaintiff and also as plaintiff 1(d). During the course of cross examination of PW1 on 23/07/2014, the learned counsel for the defendant has confronted a document dated:24/09/2007 made regarding payment of security deposit amount of Rs.7,50,000/. PW1 has admitted the said document. It was made on stamp paper of Rs.100/. After PW1 admitted the said document, when the defendant requested the court to mark it as exhibit, the plaintiff raised objection for its marking by contending that, it was made on insufficient stamp paper and requested the court to impound it. In view of objection raised by the plaintiff to mark the document dated:24/09/2007, the cross examination was deferred and the case was posted for hearing on payment of duty and marking of said document. After hearing on both side, on 13/04/2018, the then presiding officer placing reliance on the judgment of Hon'ble High Court of Karnataka, in the case of Chief Controller Authority V/s TEXAS Instrument 14 OS.27252/2009 India Private Limited - reported in ILR 2009 KAR 4386, has passed an order stating that, the said document does not require duty. Hence, there is no question of duty and penalty. Accordingly, the said document was marked at Ex.D.1. PW1 during the course of cross examination has admitted that, he signed as witness to Ex.D.1 and he admit its contents. For convenience, the relevant paras of Ex.D.1 is extracted below:
"I hereby acknowledge and confirm having received from yourselves the sum of Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand Only)as an interest-free refundable deposit. The interest-free refundable deposit shall remain with me throughout the period of the said Agreement.
I shall, on the expiry or earlier determination of the said Agreement, as the case may be, refund to yourselves the aforesaid interest-free refundable deposit of Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand Only) simultaneously with you handing over possession of the said licensed Premises to me. If I fail or neglect to refund to you the aforesaid interest-free refundable 15 OS.27252/2009 deposit Rs.7,50,000/- (Ruppes Seven Lakh Fifty Thousand Only), then you shall not be liable to vacate and hand over possession of the said licensed premises to me until the repayment of the aforesaid interest-free refundable deposit is made by me to you. It is hereby agreed between yourselves and myself that I shall be liable to pay interest to you at the rate of 24% per annum on the aforesaid interest-free refundable deposit from the date of default until the date of actual repayment thereof. In addition, you shall be entitled, until the full repayment of the aforesaid interest-free refundable deposit is made to you, to retain possession and occupation of the said licensed premises and you or any person or entity nominated by yourselves shall be entitled to carry on any lawful business therefrom without being liable or required to pay to me any license fees or other consideration."
12. A bare reading of the above extracted paras of Ex.D.1, it is clear that, the plaintiff has executed Ex.D.1 document in favor of defendant stating that, on the expiry or termination of license, he has to refund the security deposit amount of 16 OS.27252/2009 Rs.7,50,000/ while the defendant handing over the possession of the suit property. In Ex.D.1 it is specifically stated that, handing over the possession and refund of security deposit shall be made simultaneously. Further in Ex.D.1 it is stated that, on termination of license, if the plaintiff failed to refund the security deposit, defendant is not entitled to hand over the possession of the suit property and it can continue to be in possession of the said property without paying license fee till the plaintiff refund the security deposit amount and defendant is also entitled to recover the security deposit with interest at the rate of 24% per annum from the termination of license till the security deposit amount is refunded. From the averments of the plaint and the facts stated by PW1 in the evidence, it is evident that, defendant by issuing Ex.P.4 Notice dated:17/12/2008, terminated the license with effect from 10/03/2009. In para No.4 of Ex.P.4 Notice, it is stated that, the defendant is ready to vacate and hand over the vacant 17 OS.27252/2009 possession of suit property on 10/03/2009 and the plaintiff shall simultaneously refund the security deposit amount of Rs.7,50,000/ by deducting the balance license fee. PW1 in the cross examination at page No.7 has stated that, after receipt of Ex.P.4 Notice, the plaintiff has not given reply stating that, he is ready to take the possession of suit property by refunding the security deposit amount. Further he stated that, on 10/03/2009, he, his father or any of his family members were not having Rs.7,50,000/ in bank account. Plaintiffs have produced Ex.P.5 Letter of Remainder dated:25/05/2009. In Ex.P.5 Letter of Remainder, defendant has clearly stated that, in view of plaintiff failed to refund the security deposit amount, the possession of the suit property was not handed over to him on 10/03/2009. In Ex.P.5 Remainder, the defendant has once again called upon the plaintiff to refund the security deposit amount by deducting the balance license fee. PW1 in the cross examination at page No.8 has stated 18 OS.27252/2009 that, after receipt of Ex.P.5 Remainder, plaintiff has not made an attempt or offer to refund the security deposit to the defendant by deducting 3 months license fee. In the same para, PW1 has admitted that, after deducting 3 months license fee of Rs.2,10,690/, the plaintiff was liable to pay Rs.5,39,308/ to the defendant. He unequivocally admitted that, on 10.03.2009 there was no impediment to the plaintiff to pay Rs.5,39,308/ to defendant.
13. PW1 has stated that, after receipt of Ex.P.5 Remainder, the plaintiff has issued Ex.P.6 Reply. In Ex.P.6 Reply, the plaintiff has stated that, on termination of license, the defendant is liable to hand over the vacant possession of the suit property in a tenantable condition. In para No.4 of Ex.P.6, the plaintiff has stated that, to carryout necessary repairs to restore the suit property to a tenantable condition, Rs.50,000/ is required. From the materials available on record, would show that, the 19 OS.27252/2009 demand of Rs,50,000/ to carryout the repairs was a new demand made for the 1st time in Ex.P.6 reply which was issued after the defendant issued Ex.P.5 reminder. After the receipt of Ex.P.4 Termination notice, the plaintiff has not given reply stating that, he will refund the security deposit by deducting repair charges. In the cross examination at page No.9, PW.1 has stated that, at the time of issuing Ex.P.6 Reply the plaintiff was ready and willing to refund the security deposit to the defendant by deducting balance license fee by deducting the repair charges of Rs.50,000/. He stated that, plaintiff has not informed the said fact in writing to the defendant. From the facts stated by PW1 in the cross examination and from the recitals of Ex.P.6 Reply, it is clear that, after the receipt of Ex.P.4 Termination notice, the plaintiff never offered or expressed his willingness to take the possession of suit property by refunding the security deposit amount to defendant by deducting the balance license fee. In the cross examination at page 20 OS.27252/2009 No.4, plaintiff has denied the suggestion made by the learned counsel for the defendant that, defendant is not liable to hand over the possession of the suit property unless the plaintiff refund the security deposit amount. Plaintiff or his legal heirs have not produced any document to show that, on 10/03/2009, plaintiff or any of his family members were having Rs.5,39,308/ to pay the same to defendant to get the possession of the suit property. After receipt of Ex.P.4 Notice, the plaintiff has not made an offer to refund the security deposit amount to defendant by deducting the balance license fee. As stated by PW1, if really the plaintiff was ready and willing to refund the security deposit amount on 10/03/2009, he could have taken the DD in the name of defendant and intimated the same to defendant in writing. Thus there is no cogent and convincing evidence on record to prove that on 10.03.2009 the plaintiff was having Rs.5,39,308/ and he was ready to pay the said amount to defendant to take the possession 21 OS.27252/2009 of the suit property. On the other hand from the material available on record, it is evident that, in view of plaintiff failed to refund the security deposit by deducting the balance license fee, the defendant has not handed over the possession of suit property to the plaintiff. As per the covenants of Ex.D.1 Deed executed by plaintiff in favor of defendant, defendant is not entitled to hand over the possession of suit property unless the plaintiff refund the security deposit amount. Therefore as per the covenants of Ex.D.1, the plaintiff who has not refunded the security deposit amount to defendant on 10/03/2009 is not entitled to claim damages from the defendant, even if the defendant continue in possession of suit property. In view of my afore said findings, I hold that, in view of plaintiff failed to refund the balance security deposit amount of Rs.5,39,308/ by deducting the license fee of Rs.2,10,692/ the defendant has not handed over the vacant possession of suit property, therefore the plaintiff is not entitled to recover damages 22 OS.27252/2009 of Rs.8,00,000/ from the defendant and also future damages from the date of the suit till the plaintiff taken the possession of suit property as per the order dated 25.08.2010 passed by this court. In view of my afore said findings, I answer Issue No.1 & 2 in the Negative and Issue No.3 in the Affirmative.
14. ISSUE NO.4: In view of my reasons and findings on Issue No.1 to 3, plaintiff is not entitled for damages of Rs.8,00,000/ or future damages. Accordingly, I answer issue No.4 in the Negative.
15. ISSUE NO.5: From the material on record, it is evident that, plaintiff has not refunded the security deposit amount of Rs.7,50,000/ to defendant. PW1 in the cross examination has admitted that as on 10/03/2009 by deducting 3 months license fee of Rs.2,10,692/, the plaintiff was liable to refund balance security deposit amount of Rs.5,39,308/ to the 23 OS.27252/2009 defendant. In Ex.P.6 Reply plaintiff demanded Rs.50,000/ to carry out the repair to restore the suit property to the tenantable condition. The learned counsel for the defendant, during the cross examination, has made a suggestion to PW1 that, whether the plaintiff has made an attempt to refund the balance security deposit amount of Rs.5,39,308/ to defendant by deducting Rs.50,000/ towards the repairs of the suit property. If Rs.50,000/ towards the repairs of suit property as claimed by plaintiff is deducted, plaintiff is liable to pay Rs.4,89,308/ to defendant. Plaintiff has contended that, defendant is liable to pay Service tax. Either parties have not produced the original LeaveCumLicense Agreement dated:24/09/2007 to the Court. In para No.3 of the plaint, it is stated that, the said agreement was made for the period of 3 years. It appears that, the said document was not made on the sufficient stamp paper and it was also not registered. Therefore either parties have not produced the original Leave 24 OS.27252/2009 CumLicense Agreement. In view of plaintiff has not produced the said agreement, as per Sec.91 of Evidence Act, without producing the original document, the plaintiff cannot prove its contents. Since both the parties admitted the said LeaveCumLicense Agreement, I peruse the photocopy available on record. In the said Agreement, nowhere it is stated that, the defendant has to pay Service tax. Therefore, there is Zero evidence on record to prove that, defendant is liable to pay the service tax. In view of the above, I hold that, from the material on record, it is evident that, plaintiff is liable to refund the balance security deposit of Rs.4,89,308/ to defendant. After the death of plaintiff, his legal heirs who are plaintiff 1(a) to (d) succeed to the suit property. Therefore they are liable to pay the said amount to the defendant. In the written statement, defendant has prayed to direct the plaintiff to refund the balance security deposit amount of Rs.4,39,308/. In Ex.D.1 Agreement, it is stated that, on 25 OS.27252/2009 termination of lease, if the plaintiff failed to refund the security deposit amount, he is liable to refund the same with interest at the rate of 18% per annum. Defendant has not claimed interest. Therefore though the defendant has not paid the Court fee on the relief sought in the written statement, I am of the view that, the said relief can be granted having regard to the evidence on record by directing the defendant to pay the court fee. As stated above, defendant has not claimed interest on the balance security deposit amount. Granting pendentlite and future interest is at the discretion of the Court. Having regard to the facts of the case and the covenants of Ex.D.1 Agreement, I am of the view that, if the pendentlite and future interest is not awarded, it would cause injustice to defendant. Therefore, the court is of the opinion that, it would be just and reasonable to grant pendentlite and future interest at the rate of 12% per annum. In view of the above and in view of my findings on Issues 1 to 4, I pass the following: 26
OS.27252/2009 ORDER Plaintiff/s suit is dismissed with costs. Plaintiffs 1(a) to (d) are directed to refund the balance security deposit amount of Rs.4,89,308/ to defendant with interest at the rate of 12% per annum from the date of the suit till realization.
To avail the benefit of order, the defendant has to pay the court fee of Rs.32,680/ within 15 days. If the defendant failed to pay the court fee, it is not entitled to get the benefit of the order.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 19 th day of October 2019) (Mohammed Mujeer Ulla C.G.) LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (CCH - 75) 27 OS.27252/2009 ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 MALLESH LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Special Power of Attorney Ex.P.2 Letter dated:05/10/2008 Ex.P.3 Letter dated:01/12/2008 Ex.P.4 Notice dated:11/12/2008 Ex.P.5 Reminder Notice dated:25/05/2009 Ex.P.6 Legal notice dated:10/06/2009 Ex.P.7 Reply to notice dated:06/08/2009 Ex.P.8 Legal notice dated:30/11/2009 Ex.P.9 Letter dated:08/12/2009
LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
NIL LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D.1 Deed dated 24/09/2007
(Mohammed Mujeer Ulla C.G.)
LXXIV Addl. City Civil & Sessions Judge,
Mayohall Unit, City Civil Court,
Bengaluru. (CCH - 75)