Bangalore District Court
Dr.M.Shridhar vs Sri.K.H.Ravi on 22 November, 2022
KABC010040642017
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI SANTHOSHKUMAR SHETTY N., B.Com., LL.M.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 22 nd DAY OF NOVEMBER, 2022
O.S.No.1185/2017
Plaintiff:- Dr.M.Shridhar,
Aged about 49 years,
S/o.Smt.Rajalakshmi Muniyappa,
Residing at No.140/A,
10th Main Road, RMV Extension,
Sadashivanagar,
Bengaluru - 560 080.
(By Adv. Sri.B.N.Jayadeva)
Vs.
Defendant:- Sri.K.H.Ravi,
Aged about 46 years,
S/o.Sri.K.R.Hoovappa Gowda,
No.109, Mahaveer Woods,
22nd Main, 5th Phase, J.P.Nagar,
Bangalore - 560 078.
2 O.S.No.1185/2017
Also at No.6, Karnik Road,
Vanivilas Road, Basavanagudi,
Bangalore - 560 004.
Also at "Battery Mark",
Shop No.1 & 4, Basement Floor,
Nanda Arcade, No.31/1,
Shankarmutt Road,
Basavanagudi,
Bangalore - 560 004.
(By Adv. Sri.Shivakumar N.)
Date of institution of the suit : 15.02.2017
Nature of the suit : Ejectment Suit
Date of commencement of : 02.02.2018
Recording of the evidence
Date on which the Judgment : 22.11.2022
was pronounced
Total Duration : Years Months Days
05 09 07
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
This is a suit filed by the plaintiff to direct the defendant to pay arrears of rent amount of Rs.1,46,643/- (Rupees One Lakh 3 O.S.No.1185/2017 Forty Six Thousand Six Hundred and Forty Three) together with current and future interest at the rate of 12% per annum and for mesne profits for the months of October to December, 2016 with current and future interest at the rate of 12% p.a. from the date of suit till realisation and for mesne profits of Rs.25,000/- per month from the date of suit till delivery of possession and for such other and favourable reliefs with cost of the suit.
2. The brief facts of the case of the plaintiff is that, his mother Smt.Rajalakshmi Muniyappa was the owner of the suit schedule property. By virtue of a Registered Will dated 23.06.2008, the plaintiff and his sister Dr.Jayashree Kishore Kumar became the owners of the suit schedule property. As the sister of plaintiff is in abroad, in the said Will itself, the plaintiff was authorised to look after the property, including evicting the tenants. The defendant is a tenant in respect of Shops No.1 and 4 in the basement floor of commercial building called "Nanda Arcade", No.31/1, Shankarmutt Road, Basavanagudi, Bengaluru, measuring East to West: 4.6 feet and North to South: 16 feet; East to West: 10.9 feet and North to South: 16 feet, with separate boundaries as shown in the plaint schedule. When the plaintiff and his sister inherited the property, fresh negotiation took place between the plaintiff and defendant. Accordingly, tenancy was continued on a monthly rent of Rs.6,983/- with effect from 01.01.2014. Accordingly, the defendant continued to be in occupation of the suit schedule property paying rent at the rate of Rs.6,983/- per month, payable before 5 th of each English Calendar Month. The defendant is very irregular in 4 O.S.No.1185/2017 payment of monthly rent. He has not paid the rent from January 2015 and as such, there was an accumulated arrears of Rs.1,32,677/- (Rupees One Lakh Thirty Two Thousand Six Hundred and Seventy Seven) due on end of July, 2016. In that connection, notice had been sent to the defendant demanding arrears of rent and also informing him regarding the termination of tenancy. However, when lease was renewed it had been agreed that the plaintiff can terminate the tenancy by giving 3 months notice. Accordingly, a fresh notice issued on 20.10.2016, terminating the tenancy of defendant and calling upon him to quit and deliver vacant possession of the suit schedule property immediately on expiry of the 3 months from the date of receipt of said notice and to pay the arrears of rent of Rs.1,46,643/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Three) due till then. The said notice was served on the defendant on 21.10.2016. But he neither complied the demands made in the notice nor redelivered the possession of the schedule property. Hence, plaintiff is constrained to claim mesne profits for the months of October, November and December, 2016 at the rate of Rs.6,983/- per month, amounting to Rs.20,949/-. The plaintiff can earn more than Rs.25,000/- per month by reasonable husbandry from the schedule property, which is in occupation of the defendant. Hence immediately on the expiry of 3 months from the date of receipt of notice, the defendant is liable to pay mesne profits at the rate of Rs.25,000/- per month. Hence the plaintiff prayed for the aforesaid reliefs.
5 O.S.No.1185/20173. In response to the suit summons, the defendant appeared through his counsel, filed his written statement by denying the plaint averments and made counter claim. But admitted that, he was a tenant in respect of the Shops No.1 and 4. Further admitted that, the monthly rent of Rs.6,983/- with effect from from 01.01.2014. But denied the alleged arrears of rent. As per Lease Deed dated 27.12.2013, he has paid Rs.1,00,000/- (Rupees One Lakh) as advance and agreed to pay monthly rent of Rs.6,983/- and he was regular in payment of rent to the plaintiff by way of account payee cheques. He was carrying on his business by investing lakhs of rupees. Further, he made huge expenses in decorating the shops and invested Rs.7.5 lakhs for both the shops to maintain dignity/decorum for the business of the defendant. In the mean time, the plaintiff in the month of November, 2016 without rhyme or reason warranted the defendant to quit and vacate the schedule shops with immediate effect. Though he was shocked to hear the same and pleaded his inability to move his business with immediate effect, since he had invested lakhs of rupees and he spent Rs.7.5 lakhs for interior decoration. The plaintiff by quantifying the interiors and refundable advance amount, agreed to pay a sum of Rs.4,00,000/- (Rupees Four Lakhs) towards interior decoration and Rs.1,00,000/- (Rupees One Lakh) towards Refundable Security Deposit, totally amounting to Rs.5,00,000/- (Rupees Five Lakhs). On the basis of assurance given by the plaintiff, the defendant found a new business place at No.6, situated at Karnick Road, Facing Vanivilas Road, 6 O.S.No.1185/2017 Basavanagudi, Bangalore and entered into a new Lease Agreement with its owner A.V.Dharanesh Kumar on 12.11.2014. Immediately, he intimated the same to the plaintiff and got vacated the suit schedule property and started business in the new premises. The defendant has paid the rent for the entire month of December 2014 to the plaintiff and demanded for refund of advance amount of Rs.1,00,000/- (Rupees One Lakh) and Rs.4,00,000/- (Rupees Four Lakhs) as agreed by the plaintiff. The defendant waited for refund of said amount from the plaintiff. As amount was not paid, he has not handed over the keys of vacant shops. As there is no due towards arrears of rent on the part of defendant, question of giving mesne profits as alleged by the plaintiff does not arise. Hence suit itself is bad in law and this suit is an after thought. The claim made by the plaintiff is not sustainable in the eye of law. Hence, amongst other grounds prayed for dismissal of the suit and to allow the counter claim of Rs.7,10,000/- (Rupees Seven Lakhs & Ten Thousand) with current and future interest at the rate of 12% per annum.
4. Refuting the contentions taken by the defendant in his counter claim, the plaintiff has filed his written statement by denying the averments made therein and sought for dismissal of the counter claim.
5. On the basis of the pleadings of the parties, my predecessor-in-office has framed the following issues for determination:-
7 O.S.No.1185/2017ISSUES
1. Whether the plaintiff proves that the defendant is in arrears of rent from October to December 2016 amounting to Rs.20,949/- and entitled to recover the same from the defendant along with interest as prayed for?
2. Whether the plaintiff is entitled for the mesne profits as sought for?
3. Whether the defendant is entitled for damages of Rs.7,10,000/- as prayed for in counter claim?
4. Whether plaintiff is entitled for the reliefs as sought for in the suit ?
5. What decree or order?
6. After settlement of issues, the plaintiff has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.8 were marked through him. On behalf of the defendant, the defendant has entered into the witness box as DW-1 and Ex.D.1 and D.2 were marked on behalf of the defendant.
7. Heard the arguments of the learned counsel for plaintiff and defendant. The learned counsel for plaintiff also submitted his written arguments.
8. My findings on the above issues are as under:-
Issue No.1: In the affirmative.
Issue No.2: Partly in the affirmative.
8 O.S.No.1185/2017
Issue No.3: In the negative.
Issue No.4: Partly in the affirmative.
Issue No.5: As per final order
for the following:
REASONS
9. Issues No.1 to 3:- Since all these issues are interconnected, taken up together for discussion to avoid repetition. On perusal of the contentions taken by the plaintiff and defendant, the relationship of landlord and tenant between them is not in dispute. The plaintiff is prosecuting this suit on his behalf and on behalf of his elder sister Dr.Jayashtree Kishore Kumar. He was authorised to prosecute the matter in the Registered Will dated 23.06.2008. The defendant was inducted into the suit schedule property way back in the year 1994, during the life time of the grand father of plaintiff. The description of the suit schedule property is also not in dispute. As per Lease Agreement, the tenancy was continued on a monthly rent of Rs.6,983/- with effect from 01.01.2014.
10. According to the plaintiff, the defendant was irregular in payment of monthly rent. From January 2015 onwards, the defendant became defaulter and the sum of Rs.1,32,677/-
(Rupees One Lakh Thirty Two Thousand Six Hundred and Seventy Seven) was due as rent till the end of July, 2016. Hence he has issued a notice, terminating the tenancy and demanding the arrears of rent. However, as per Renewed Lease Agreement, it was required to give 3 months for terminate the tenancy. Hence 9 O.S.No.1185/2017 fresh notice was issued on 20.10.2016, terminating the tenancy, calling upon the defendant to quit and deliver vacant possession of the suit schedule property, immediately on expiry of the 3 months from the date of receipt of said notice and also to pay the arrears of rent of Rs.1,46,643/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Three), due till then. But the defendant failed to comply the demands made in the notice. As such from the date of termination of lease, the defendant is liable to pay mesne profits at the rate of Rs.6,983/- per month. Further, the defendant is liable to pay mesne profits at the rate of Rs.25,000/- per month for January 2017 till delivery of possession, with interest thereon at the rate of 12% per annum.
11. In his examination-in-chief, the plaintiff has reiterated the averments made in the plaint. The documents marked on his behalf at Ex.P.1 is the office copy of legal notice dated 20.10.2016. Ex.P.2 to P7 are the Postal Receipts and Postal Acknowledgements, to show the service of legal notice on the defendant. Ex.P.8 is the certified copy of Registered Will dated 23.06.2008 executed by the mother of plaintiff, bequeathing the property in his favour, as well as in favour of his elder sister Dr.Jayashtree Kishore Kumar.
12. On the other hand, th defendant has denied the arrears of rent as alleged in the plaint. Further contended that the plaintiff is not entitled for mesne profits as claimed in the plaint. He has taken further contention that, as per Lease Agreement dated 10 O.S.No.1185/2017 27.12.2013, he has paid the sum of Rs.1,00,000/- (Rupees One Lakh) as advance. Further he was regular in payment of rent. He has taken further contention that, as he spent Rs.7.5 lakhs towards interior decorations just few days prior to such demand, the plaintiff after quantifying the interiors, agreed to pay the sum of Rs.4,00,000/- (Rupees Four Lakhs) towards interior decorations and Rs.1,00,000/- (Rupees One Lakh) towards Security Deposit. Thereby agreed to pay the sum of Rs.5,00,000/- (Rupees Five Lakhs). Then, he shifted his business to a new premises. As the plaintiff failed to pay the agreed sum of Rs.5,00,000/- (Rupees Five Lakhs only), he did not hand over the keys. Therefore, the plaintiff is liable to pay the aforesaid sum of Rs.5,00,000/- (Rupees Five Lakhs) with interest thereon at the rate of 12% per annum, amounting to Rs.7,10,000/- (Rupees Seven Lakhs & Ten Thousand).
13. In his oral evidence, the defendant has reiterated the contentions taken in the written statement. In all two documents have been marked on behalf of defendant, during the cross- examination of PW-1. The documents marked at Ex.D1 is the copy of Lease Agreement dated 27.12.2013 executed between the plaintiff and defendant, in respect of the suit schedule premises. Ex.D.2 is the copy of notice dated 03.08.2016 issued by the plaintiff.
14. In his written arguments, the learned counsel for plaintiff has reiterated the contentions taken in the plaint and drew the 11 O.S.No.1185/2017 attention of the court on certain admissions given by DW-1 in the course of his cross-examination. Further contended that, after giving credit for Rs.1,00,000/- (Rupees One Lakh) deposited by the defendant with the plaintiff as advance, the defendant has to pay Rs.46,643/- (Rupees Forty Six Thousand Six Hundred & Forty Three) towards arrears of rent. Further the defendant is liable to pay the sum of Rs.20,949/- per month for the months of October, November and December of 2016, amounting to Rs.62,847/- (Rupees Sixty Two Thousand Eight Hundred & Forty Seven). Further the defendant is liable to pay the mesne profits at the rate of Rs.25,000/- per month from January 2016 to 29.05.2017, amounting to Rs.1,25,000/- (Rupees One Lakh & Twenty Five Thousand) and thereby contended that, in all, the defendant is liable to pay the sum of Rs.2,34,490/- (Rupees Two Lakhs Thirty Four Thousand Four Hundred & Ninety) towards arrears of rent and mesne profits. It was argued that, as the keys were handed over on 29.05.2017, the plaintiff has not pressed the prayer for delivery of possession.
15. Refuting each and every contentions taken by the plaintiff, the learned counsel for the defendant has argued that, as the plaintiff failed to refund the Security Deposit, the defendant did not hand over the keys. As such the plaintiff is not entitled for any reliefs as prayed for. Further argued that, as the defendant already handed over the possession, the plaintiff is not entitled for mesne profits. On the other hand, as promised by the plaintiff, the defendant is entitled for the relief sought in the counter claim.
12 O.S.No.1185/201716. In this background of the matter, I have carefully gone through the documents relied by the plaintiff and certain admissions given by both plaintiff and defendant in the course of their cross-examinations. As stated supra, both Ex.D.1 and D.2 were tendered to the plaintiff in the course of cross-examination and marked through him. Ex.D.1 makes it clear that, in case there was arrears of rent, the plaintiff was at liberty to charge interest at the rate of 5%. Further it was agreed that, the Security Deposit of Rs.1,00,000/- (Rupees One Lakh) was repayable at the time of termination of the lease. Further it was agreed that, the defendant shall not come in the way of any structural developmental activity in the schedule premises and he shall not put any structural alteration to the premises.
17. In his cross-examination, PW-1 has admitted that, the defendant was inducted as tenant into the suit schedule property in the year 1994, when his grand father was alive. Further admitted that, when his grand father and mother were alive, the defendant was regular in payment of rent. Further, there is no time limit in the Lease Agreement to vacate the premises. Further admitted that, as per Ex.D.1 the defendant had paid the sum of Rs.1,00,000/- (Rupees One Lakh) towards Security Deposit. It was admitted that, in the month of December 2014, the defendant had purchased the premises, which is very near to the suit schedule premises. The defendant had paid the rent till 2014. Further admitted that, other tenants who were in occupation of the 13 O.S.No.1185/2017 premises have vacated their shops only after the defendant had vacated the premise. Further admitted that, he also filed the suits against other tenants for their eviction. He has clearly admitted that, in normal course, only after repayment of Security Deposit, the tenant used to hand over the keys.
18. In the course of his cross-examination DW-1 has admitted that, till 29.05.2017, the keys of the premises was in his custody. But the explanation offered by him is that, the substituted/alternative keys was with the plaintiff. Further contended that, he retained the keys as Security Deposit was not returned to him. But it is not in dispute that on 29.05.2017, he handed over the keys in the court and then only, the plaintiff has taken the keys to his custody. DW-1 has admitted the service of notice as per Ex.P.1. He has clearly admitted that, there is no receipt or document with him to show that he had spent the sum of Rs.7.5 lakhs towards interior decorations. Further admitted that, there is no document with him to show that, the plaintiff has promised to pay Rs.4,00,000/- (Rupees Four Lakhs only) towards interior decorations. It was admitted that, he is not having any photographs to show the alleged interior decorations. Further admitted that, in the said vicinity, the shops are fetching rent of Rs.25,000/- per month.
19. On perusal of the recitals incorporated in Ex.D.1 and admissions given by PW-1 makes it very clear that, while inducting the defendant as tenant into the suit schedule premises, they have 14 O.S.No.1185/2017 taken the sum of Rs.1,00,000/- (Rupees One Lakh) as Refundable Security Deposit. Though the plaintiff issued a notice terminating the tenancy, there is no whisper in the notice regarding refund of Security Deposit. Even if, said amount was adjusted towards arrears of rent, it was his duty to give deduction to the said sum of money. But no such efforts have been made. For the first time in his written argument, the learned counsel for plaintiff gave credit of Rs.1,00,000/- (Rupees One Lakh) and thereby claimed Rs.46,643/- (Rupees Forty Six Thousand Six Hundred & Forty Three) as arrears of rent till the end of September 2016. Further claimed the sum of Rs.6,983/- as mesne profits for the months of October, November and December, 2016.
20. Looking into the cross-examination of DW-1, it is very clear that, he has handed over the keys in the court on 29.05.2017. Hence it can be held that, on the said date, the defendant has handed over the possession of the suit schedule premises in favour of plaintiff. But the contention taken by the defendant is that, much prior to that date, he moved to an alternative accommodation and other set of keys of the premises was with the plaintiff. But such explanation cannot be accepted, since key was handed over on 29.05.2017. Such being the case, till end of May 2017, defendant is liable to pay the mesne profits.
21. In this suit, the plaintiff is claiming mesne profits at the rate of Rs.25,000/- per month for the months of January to May, 2017. It is not in dispute that, after evicting the tenants from the suit 15 O.S.No.1185/2017 schedule premises, the plaintiff intended to demolish the existing building and put up a new construction. Such being the case, on the basis of stray admission of defendant, the plaintiff cannot claim mesne profits at the rate of Rs.25,000/- per month. It is needless to mention that, in a normal course, the plaintiff is entitled for mesne profits at the same rate, which is equivalent to the rent payable to him. Such being the case, this court is of the opinion that, the plaintiff is entitled for mesne profits till the end of May 2017 at the rate of Rs.6,983/- per month. Hence after giving deduction of Rs.1,00,000/- (Rupees One Lakh), the arrears of rent till 30.09.2016 was Rs.46,643/- (Rupees Forty Six Thousand Six Hundred & Forty Three). Further, from the month of October 2016 onwards till May 2017, in all for a period 8 months, the defendant is liable to pay mesne profits at the rate of Rs.6,983/- and same is amounting to Rs.55,864/- (Rupees Fifty Five Thousand Eight Hundred and Sixty Four).
22. So far as, the counter claim of the defendant is concerned, except the self serving statement, nothing is placed before the court to show that, he had spent Rs.7.5 lakhs towards interior decorations and the plaintiff promised him to pay the sum of Rs.4,00,000/- (Rupees Four Lakhs) towards interior decorations. Such being the case, except the Security Deposit, the defendant is not entitled for any amount. Since the Security Deposit was already deducted in the arrears of rent, nothing is due in favour of defendant. With these observations, Issue No.1 is answered in the 16 O.S.No.1185/2017 affirmative, Issue No.2 partly in the affirmative and Issue No.3 in the negative.
23. Issue No.4:- While answering the aforementioned issues, this court has come to the conclusion that, on 29.05.2017, the defendant has handed over the keys of the suit schedule property. As such, the relief of delivery of possession does not arise for consideration. Further, while calculating the rent and mesne profits, this court has come to the conclusion that, in all the defendant is due of Rs.55,864/- only (Rupees Fifty Five Thousand Eight Hundred and Sixty Four).
24. In this suit, the plaintiff is claiming interest at the rate of 12% per annum on the arrears of rent and mesne profits. But on perusal of Ex.D.1, there are reasons to believe that, it was agreed between the parties to impose interest at the rate of 5% on arrears of rent. Such being the case, it is just and proper to direct the defendant to pay aforesaid sum of Rs.55,864/- (Rupees Fifty Five Thousand Eight Hundred and Sixty Four) with interest thereon at the rate of 5% per annum from 30.05.2017, till realisation. Accordingly, Issue No.4 is answered partly in the affirmative.
25. Issue No.5: In view of the above discussions, I proceed to pass the following:-
ORDER Suit of the plaintiff is partly decreed as under:17 O.S.No.1185/2017
The defendant is directed to pay the sum of Rs.55,864/- (Rupees Fifty Five Thousand Eight Hundred and Sixty Four) towards arrears of rent and mesne profits with interest thereon at the rate of 5% per annum from 30.05.2017, till realisation.
Consequently, the counter claim of the defendant is dismissed.
The plaintiff is entitled for proportionate cost on the decreetal amount.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, on this the 22nd day of November, 2022) (SANTHOSHKUMAR SHETTY N.) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
ANNEXURE List of witnesses examined for plaintiff:
PW.1 - Dr.M.Shridhar
List of documents exhibited for plaintiff:
Ex.P.1 : Office copy of Notice
dated 20.10.2016
Ex.P.2 to 4 : Postal Receipts
18 O.S.No.1185/2017
Ex.P.5 to 7 : Postal Acknowledgements
Ex.P.8 : Certified copy of Will
dated 23.06.2008
List of witnesses examined for defendant :
DW.1 - Sri.K.H.Ravi
List of documents exhibited for defendant:
Ex.D.1 : Agreement of Lease
dated 27.12.2013
Ex.D.2 : Office copy of Notice
dated 03.08.2016
XI ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.