Bangalore District Court
M/S Welcome Hospitality vs Mr.Winniebald 'D' Souza on 11 January, 2016
IN THE COURT OF THE XX ADDL.CITY CIVIL &
SESSIONS JUDGE(CCH.32), BANGALORE CITY
Present
Sri. V.B.Suryavanshi, B.Com.,LL.B.(Spl.),
XX Addl. City Civil & Sessions Judge,
Bangalore
DATED THIS THE 11th DAY OF JANUARY, 2016
O.S.No.5823/2013
Plaintiff: 1. M/s WELCOME HOSPITALITY,
Regd. Firm under the India
Partnership Act, 1932, having its
office at Millennium India Group,
No.3068, 11th Cross, 80 Ft.Road,
Indiranagar, Bangalore-560 038
represented by its Managing Partner,
Dr.R.Vinod Kumar,
2. Dr.R.Vinod Kumar,
S/o late S.Ravindran,
Aged about 34 years,
R/at No.36, 'Indiraprastha' 37th Cross,
19th Main 1st Stage, 5th Block, HSR
Layout, Bangalore-560 043.
3. Mr.S.Indiran,
S/o late Sappani Pillai,
Aged about 45 years,
R/at No.39, Mottapanapalya,
Indiranagar, Bangalore-560 038.
(by-M/s Jose Sabastian, Advs.)
/VS/
Defendant Mr.Winniebald 'D' Souza,
S/o Late Peter 'D' Souza,
Aged about 65 years,
R/at No.F-501, 5th Floor, White Nile
Apartments, George Martis Road,
Mallikate, Mangalore-575 002.
(by Sri Rego & Rego, Advs.)
Date of Institution of the suit 08/08/2013
Nature of the suit Injunction
2 O.S.5823/2013
Date of commencement of
03.08.2015
recording of evidence
Date on which Judgment 11/01/2016
pronounced
Total Duration Years Months Days
02 05 03
JUDGMENT
This is a suit filed by the plaintiffs against the defendant for permanent injunction.
2. It is the specific case of the plaintiffs that, M/s Welcome Hospitality, the 1st plaintiff herein is firm registered U/s 58(1) of Indian Partnership Act, 1932. The firm was registered on 10.01.2012 and the Partnership deed was entered on 09.01.2012 and was constituted in carrying on business Restaurant-cum- bar, Fast Food centre, Outdoor catering and similar activities related to Hospitality industry. The 2nd plaintiff is managing the affairs of the partnership firm.
2(a). The defendant being the owner of the suit schedule property and he had entered into Lease agreement with the plaintiff on 24.03.2012 for a period of 10 years. The plaintiffs have paid the deposit 3 O.S.5823/2013 amount by way of RTGS and also agreeing to pay rent to the defendant. The plaintiffs have started renovation of the work on the suit schedule property moreover, the plaintiffs apart from parting with the advance amount of Rs.10,00,000/- have periodically tendering of the rents and the plaintiffs have spent about 11,99,396/- towards expenses including rents as on June 2013. The defendant unwontedly intervened and prevented the progress and thereby harbored the renovation work. The conduct of the defendant is not trustworthy in implementing the scheme though he was involved in the removal of doors, windows and fixture and transporting the removed materials to his native town to Mangalore.
2(b). On 25.07.2013 the defendant has sent rowdy elements in threatening the plaintiff as well as their staff with the dire consequences contending that they will obtain fresh lease deed from the defendant and also demanded surrendering of the possession 4 O.S.5823/2013 apart from preventing in carrying on any renovation activities. Hence, the plaintiffs are constrained to file suit against the defendant for permanent injunction.
3. On the contrary, the defendant has filed written statement and denied the case of the plaintiffs. Further, it is contended that as per the Lease deed, the parties have agreed in case of any dispute arising in respect of lease, the matter shall be referred to arbitration of a Sole Arbitrator and the defendant had denied the case of the plaintiffs and also contended that the court fee paid is insufficient. It is also contended that, the present suit is liable to be stayed in terms of the Section 10 of the Code of Civil Procedure, being one instituted subsequent to the one in O.S.No.25375/2013 and hence, prays for dismissal of the suit.
4. On the rival pleadings of the both the parties, the following issues have been framed by the court on 26.07.2014:
5 O.S.5823/2013
1. Whether the plaintiffs prove their lawful possession over the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of the defendant?
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the suit?
4. What order or decree?
5. The 2nd plaintiff has been examined as PW.1 and got marked documents at Ex.P1 to P17 and closed plaintiff's side. No evidence on defendant's side.
6. Heard the arguments.
7. My findings on the above issues are as follows:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : As per final order for the
below mentioned
Reasons
8. Issue Nos.1 & 2: Since, these issues being
interconnected and interlinked to each other, to avoid 6 O.S.5823/2013 repetition of facts and evidence, I have taken these issues together for common consideration.
9. This is the suit filed by the plaintiff against the defendant for permanent injunction.
It is the specific case of the plaintiff that, the plaintiff firm had entered into lease agreement with the defendant on 24.03.2012 and also paid an advance amount of Rs.10,00,000/- and also agreed to pay rent amount to the defendant. The plaintiff has started renovation work and the defendant started harassing the plaintiff and also threatened the plaintiff with dire consequences, hence the plaintiff are constrained to file suit against the defendant for permanent injunction.
10. On the contrary, the defendant who has denied the case of the plaintiff and contended that the suit of the plaintiff is not maintainable.
11. Mr.R.Vinodkumar was examined as PW.1 and he has reiterated the contents of the plaint averments 7 O.S.5823/2013 in his oral testimony and got marked the documents at Ex.P1 to P17.
12. It is very significant to note that, though the PW.1 was examined and got marked Ex.P1 to P17, thereafter the PW.1 did not tendered for cross examination. Even despite sufficient opportunity given to the PW.1, PW.1 was never turned up for cross examination and accordingly, the evidence of the PW.1 was discarded and case was posted for defence evidence. The defendant has also filed memo stating that he has no oral evidence.
13. Though it is specific case of the plaintiff that, the defendant is trying to interfering in the peaceful possession and enjoyment of the suit schedule property, but the PW.1 was examined and he was not tendered for cross examination, hence evidence of PW.1 was discarded. The plaintiff has specifically failed to prove his case with the cogent evidence and also he has failed to prove that he was not in possession of the 8 O.S.5823/2013 suit schedule property as on the date of the suit. Accordingly, I answer issue Nos.1 and 2 in the Negative.
14. Issue No.3: In view of findings on issue Nos. 1 and 2, the plaintiff is not entitled for the relief of permanent injunction, accordingly, I answer this issue in the Negative.
15. Issue No.4: In view of the findings on above issues, I proceed to pass the following ORDER The suit of the plaintiffs is dismissed. Under the pecuniary circumstances, the parties are directed to pay their own costs.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed by her, corrected and then pronounced by me in open court, this the 11th day of January, 2016) ( V.B.SURYAVANSHI ) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
9 O.S.5823/2013ANNEXURE List of witnesses examined for the Plaintiffs :
PW.1 : Sri. Dr.R.Vinodkumar List of documents marked for the Plaintiffs :
Ex.P1 Certificate of Registrations of Firms Ex.P2 Resolution Ex.P3 Letter Dt.23.11.2012 Ex.P4 Courier receipt Ex.P5 Photocopy of two cheques Ex.P6 Endorsement Ex.P7 to 9 Three legal notices Ex.P10 Acknowledgements (4 in Nos.) Ex.P11 Receipt Ex.P12 to Cash credit bills (3 in Nos.) 14 Ex.P15 Electricity bills (15 in Nos.) Ex.P16 Water bills (6 in Nos.) Ex.P17 Original Lease deed Witnesses examined for the defendant: nil Documents marked for the defendant: nil ( V.B.Suryavanshi ) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY 10 O.S.5823/2013 Judgment pronounced in the open court ( vide separate order) Order The suit of the plaintiffs is dismissed. Under the pecuniary circumstances, the parties are directed to pay their own costs.
Draw decree accordingly.
XX ACC & SJ,B'lore