Karnataka High Court
Dr C Narendra Kumar vs Sri N Somashekar on 8 April, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A. NO.1093 OF 2018 (EJE)
BETWEEN:
DR. C. NARENDRA KUMAR
S/O SRI S R CHANDRASHEKAR,
AGED ABOUT 49 YEARS,
R/AT "SAVITHA SADAN",
NO.11/1, 5TH CROSS,
LAKSHMI ROAD, SHANTHINAGAR,
BANGALORE-560 027
...APPELLANT
(BY SRI.M.R.RAJAGOPAL, SR.COUNSEL FOR
SRI.H.N.BASAVARAJU, ADVOCATE)
AND:
SRI N. SOMASHEKAR
S/O LATE M NANJUNDAPPA,
AGED ABOUT 80 YEARS
R/AT NO.211, UPSTAIRS, "PARVATHI NILAYA",
5TH CROSS, CUBBONPET,
BANGALORE-560 002
...RESPONDENT
(BY SRI C. PRAKASH, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED: 26.03.2018 PASSED IN
OS.NO.5049/2015 ON THE FILE OF THE XL ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR
EJECTMENT AND VACANT POSSESSION.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.03.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned Regular First Appeal is filed by the unsuccessful defendant who has questioned the decree for ejectment passed by the Court below.
2. For the sake of convenience, the parties are referred to as per their rank before the Court below.
3. The facts leading to the case are as under:
The plaintiff has filed the present suit for ejectment. The plaintiff has specifically contended that defendant is running a diagnostic centre in the schedule premises pursuant to registered sale deed entered into between plaintiff and defendant on 15.02.2002 at an agreed rent of Rs.7,000/- per month. The plaintiff also claimed that the monthly rent was periodically enhanced and as on 2014, the defendant was liable to pay enhanced rent of Rs.14,515/-. The plaintiff has 3 further specifically pleaded that on 11.01.2015, plaintiff sent a fresh lease agreement and requested the defendant to sign the said document and return. The grievance of the plaintiff is that though the fresh lease agreement was sent in the month of January 2015, the defendant, for reasons best known to him, has not signed the fresh lease agreement. On account of inaction on the part of defendant, plaintiff was compelled to issue a legal notice on 02.03.2015 calling upon the defendant to sign the original lease deed if he is interested or else to treat the said notice as a quit notice and handover vacant possession of the suit premises by 04.06.2015. The plaintiff also claimed that defendant is liable to pay damages at the rate of Rs.14,515/- every month till the schedule premises is vacated and handed over. Since defendant did not respond to the legal notice, he claimed that he sent a second notice dated 19.03.2015 and third notice dated 18.04.2015. As there was no response, the plaintiff was compelled to file the present suit.4
4. The defendant, on receipt of summons, contested the proceedings by filing written statement. At paragraph 5 of the written statement, the defendant claimed that he had some objections in regard to time stipulated to handover vacant possession in the event of termination of tenancy by the plaintiff. The defendant alleged that after receipt of notice, defendant expressed his willingness to continue with the lease and also agreed to the said terms. The defendant complained that instead of executing a fresh lease agreement as orally agreed, plaintiff has issued a legal notice . Defendant claims that he has orally replied to the said legal notice.
5. The defendant further denied the allegations in regard to dishonour of cheque and specifically claimed that all disputes in regard to arrears of rent were amicably settled between the parties. At para 8(A) of the written statement, the defendant claimed that the alleged quit notice is bad in law and the same is not at all maintainable as plaintiff has waived the quit notice. In the alternative, defendant also contended 5 that plaintiff has no right to terminate the lease on the basis of alleged quit notice and the termination of tenancy is premature. The defendant also claimed that he has duly signed the fresh lease agreement and has been paying the rents regularly without any default and the same is accepted by the plaintiff. On these set of defences, the defendant sought for dismissal of the suit.
6. Based on rival contentions, the Trial Court formulated the following issues:
"1) Whether the plaintiff proves that tenancy of the schedule premises has been terminated as alleged?
2) Whether the plaintiff is entitled for the reliefs sought for?
3) What Order or Decree?"
7. The plaintiff in support of his contention examined himself as PW.1 and adduced documentary evidence vide Exs.P-1 to P-12. The defendant to counter the claim of 6 plaintiff examined himself as DW.1 and adduced rebuttal documentary evidence vide Exs.D-1 to D-55.
8. The learned Judge having examined the rival contentions of the parties has answered issue No.1 in the affirmative and has come to conclusion that there is valid termination of lease. The learned Judge was of the view that plaintiff has issued legal notice on 02.03.2015 as per Ex.P-4 calling upon the defendant to handover vacant possession by 04.06.2015 and has called upon the defendant to pay damages to the tune of Rs.14,515/-. The learned Judge was of the view that having issued a quit notice, the present suit is filed on 11.06.2015 and therefore, the learned Judge was of the view that the present suit for ejectment is filed after expiry of stipulated period mentioned in the legal notice and therefore, learned Judge was of the view that there is valid termination of tenancy. The learned Judge was of the view that in all the legal notices, plaintiff has stated in unequivocal terms that defendant is liable to pay damages to the tune of 7 Rs.14,515/- and therefore, the acceptance of monthly rent post January 2015 would not amount to waiver of notice. On these set of reasonings, the learned Judge has proceeded to decree the suit.
9. Shri M.R.Rajagopal, learned Senior Counsel appearing for the appellant/defendant reiterating the grounds urged in the appeal memo would strenuously argue and contend that the act of the landlord in accepting the rent would amount to waiver of notice. To buttress his arguments, he has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Sarup Singh Gupta vs. S.Jagdish Singh and Others1 and the judgment rendered by this Court in the case of Vasanthkumar D.Shah vs. Smt. Sugandha Raman and Another2. Placing reliance on these two judgments, he would take this Court through the provisions of Sections 112 and 113 of Transfer of Property Act, 1882. While taking this Court through the above said 1 (2006) 4 SCC 205 2 2006 SCC Online Kar 507 8 provisions, learned Senior Counsel would place reliance on paragraph 2 of Ex.P-4 and would contend that in terms of paragraph 2 of Ex.P-4, which is a legal notice sent by the plaintiff, defendant has signed the fresh lease agreement and therefore, he would contend that the present suit for ejectment is not at all maintainable.
10. Learned Senior Counsel has also made an attempt by taking this Court through the cross-examination of plaintiff dated 20.06.2017. Placing reliance on the cross-examination, he would contend that the fresh lease agreement was duly signed by the defendant and the copy of the said agreement was sent to the plaintiff. He would bring to the notice of this Court that plaintiff has admitted the receipt of rent by way of cheque and therefore, he would contend that acceptance of rent would amount to waiver of notice and the material on record would clearly indicate that there was intention on the part of plaintiff to treat the lease as subsisting. 9
11. Per contra, learned counsel appearing for the respondent/plaintiff repelling the arguments canvassed by defendant would vehemently argue and contend before this Court that the clinching evidence on record would clearly indicate that there is valid termination of lease and no grounds are made out to demonstrate that the quit notice is bad in law. Learned counsel for plaintiff has also placed reliance on the cross-examination of defendant. Placing reliance on the cross- examination, learned counsel would submit to this Court that plaintiff has succeeded in eliciting that defendant had some objections in the conditions incorporated in the fresh lease agreement vide Ex.D-1 and therefore, he never signed and as such, it was not a concluded contract. Therefore, placing reliance on the material on record, he would contend that defendant having failed to issue reply to the legal notices, only as an afterthought has come up with a false defence that he has signed the fresh lease agreement which is not found from the material placed by defendant.
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12. Heard learned Senior Counsel for the defendant and learned counsel for the plaintiff. Perused the records. The following points would arise for consideration:
1) Whether the finding of the Trial Court that there is valid termination of tenancy is perverse and warrants interference at the hands of this Court?
2) Whether the Court below erred in holding that there is no waiver of notice?
Re: Point Nos.1 and 2:
13. It is the specific case of the plaintiff that defendant is running a diagnostic centre since 2002. The plaintiff specifically claims that a fresh lease agreement was prepared and same was sent to defendant with a clear understanding that either he accepts the fresh terms and conditions or vacates the same in the event the terms and conditions are not agreeable. This fresh agreement is produced by defendant and the same is marked at Ex.D-1. This fresh agreement is dated 15.01.2015. The plaintiff has issued a legal notice on 11 02.03.2015 calling upon the defendant to sign the original lease deed if he is really interested in continuing the lease or else to treat the said legal notice as notice of termination of lease. It would be useful for this Court to cull out the last paragraph of the said legal notice dated 02.03.2015 as per Ex.P-4 which reads as under:
"Wherefore, you are hereby called upon to send the Original Lease Deed sent to you on dt.11/01/2015 after signing the same if you are interested to continue the lease as per the terms of the said Lease Deed within Seven days from the date of the receipt of this Notice and send the rent of February 2015 as you used to send earlier in two cheques within 5th of March, 2015 failing which treat this Notice as the notice of termination of the Lease and vacate and hand over the vacant possession of the premises in your occupation on dt. 04/06/2015 and till then pay the damages of Rs. 14,515/- per month for the use and occupation and also pay the KER charges regularly within due date, failing which my client will be constrained to take both appropriate legal action as per law at your risk and cost including this Notice Charges of Rs.5,000/-"
14. The defendant has not chosen to give reply to the said notice. The plaintiff has sent a second notice on 19.03.2015 as per Ex.P-5 reiterating the intention of plaintiff as per the first legal notice. It would be also useful for this 12 Court to cull out paragraphs 2 and 3 of the second legal notice which reads as under:
"2. Even though you have received the said Notice, so for you neither replied to the said Notice nor returned the Original Lease Deed dt.11/01/2015 which clearly indicates your intention to vacate the premises. You have given one cheque dt.07/03/2015 for a sum of Rs.14,515/- drawn on Canara Bank, Jayanagar Shopping Complex, Bangalore- 560011, even though you used to give two cheques earlier and in the earlier Legal Notice dt.02/03/2015. My client further states that the said cheque has been dishonoured vide Endorsement given to my client on dt.07/03/2015. This is the 8th time the cheque issued by you has been dishonoured and it has been repeatedly informed to you and for no fault of my Client he has been penalised by the Bank with cost. You are well aware that the dishonour of the cheque is punishable offence under the Negotiable Instruments Act.
3. My Client states that you have deliberately issued the cheque knowing fully well that it is going to be dishonoured with an intention to make unlawful gain which amounts to cheating under the Indian Penal Code apart from being an offence under Section 138 of the Negotiable Instruments Act. Hence, this Notice."
15. On bare perusal of paragraph 2, this Court would find that the rent is sent by defendant for the month of February 2015 by way of cheque and there is a reference that the cheque issued for the eighth time was also dishonoured. At paragraph 3, the plaintiff has claimed that the cheques are 13 issued by defendant with a deliberate intention. This notice is followed by a final notice as per Ex.P-6 dated 18.04.2015. No explanation is forthcoming and no credible evidence is led in by defendant to prove that he was willing to accept the fresh terms and conditions which are incorporated in the lease agreement dated 15.01.2015 as per Ex.D-1.
16. The contention of the defendant has to be also examined in the light of the stand taken by him in the written statement. On meticulous examination of the averments made in the paragraph 5 of the written statement, the same would clinch the issue and would indicate that defendant had no intention to continue the lease in terms of fresh conditions incorporated in the lease agreement vide Ex.D-1. It would be useful for this Court to cull out paragraph 5 of the written statement which reads as under:
"5. The averments made in Para-4 of the plaint are not true and correct. The Defendant and the plaintiff was agreed to extend the lease periodically and the plaintiff has sent fresh lease deed for the approval and signature of this Defendant. But, this Defendant raised objection only in 14 respect of termination of tenancy by granting a time of one month which was required to be corrected and the same was informed to the plaintiff. Instead of correcting the leased agreement the plaintiff caused the notice to the Defendant. After receipt of the notice the Defendant shown interest in continuing the lease and also requested the plaintiff to continue the lease. Orally, the plaintiff was agreed for the said terms and waited for the Lease Agreement. Surprisingly, the plaintiff sent legal notice to the Defendant and orally Defendant gave a reply and also inform the plaintiff that the Defendant is in interested in continuing the lease. Hence, all the averments at Para-4 of the plaint are not true and correct."
17. On bare perusal of the averments made in paragraph 5 of the written statement, this Court would find that defendant was insisting some alterations in the conditions. He pleads that plaintiff has in fact orally agreed after issuing the legal notice and therefore, he was waiting for plaintiff to amend some terms and conditions in the lease agreement. This stand taken in the written statement contradicts his defence set up during trial. The defendant during trial has confronted the lease agreement in cross- examination of plaintiff and the same is marked as Ex.D-1. By confronting the lease agreement, defendant claims that he 15 has signed the lease deed and claims that contract is concluded and therefore, the plaintiff is not entitled to maintain the ejection suit before expiry of the lease period under Ex.D-1. It would be useful for this Court to refer to the cross-examination of DW.1 which reads as under:
"I have not intimated to plaintiff about the recital/condition of lease which I am not agreeable, mentioned in lease agreement (Ex.D.1), in writing. Witness voluntaries myself and plaintiff made oral discussion about non agreeable conditions of the deed.
Question: I have no impediment to inform plaintiff about disagreement of lease condition in writing what you say?
Ans: It was not necessary to intimate about dis agreement of lease condition to plaintiff, in writing.
It is true to suggest that I have received legal notice (Ex.P.4, 5 and 6) sent by plaintiff. I have no impediment for sending reply to the notices.
Question: Prior to receiving of notice (Ex.P.4, 5 and 6) is there any difficulty in sending what do you say?
Ans: Prior to receiving notice discussion about lease agreement (Ex.D.1) was in progress as such it was not send to plaintiff.
Since plaintiff is staying in the 1st floor of schedule building I made efforts to hand over copy of lease agreement (Ex D.1) but plaintiff refuse to receive the copy of lease agreement. Therefore I send the agreement copy by post. To my knowledge plaintiff with an intention to 16 evict me from the premises has refused to take copy of agreement. It is true to suggest that rent for the present month will be paid on the succeeding month. It is true to suggest that the entry made in Ex.D.3 statement i.e., dt. 17.2.2015 pertains to the rent amount paid for the month of January 2015. I have issued cheque for rent amount of February 2015 on 12.3.2015 and it was returned for the reason that over writing as such I have sent another cheque for the rent of February 2015 on 13.4.2015."
18. If this relevant piece of cross-examination is meticulously examined, the same would probabalise the case of the plaintiff rather than defendant's case. The defendant was not fully satisfied with the terms and conditions incorporated in Ex.D-1 and claims that there were oral discussion about non-agreeable conditions incorporated in the lease agreement vide Ex.D-1. All these significant details would give an indication that though this fresh lease agreement dated 15.01.2015 was handed over to the defendant, he refused to sign the said document for almost three months. The last legal notice is dated 18.04.2015 as per Ex.P-6. Therefore, the contention of defendant that he has already signed the lease agreement sent by plaintiff 17 cannot be believed and the said contention is not substantiated by the defendant.
19. If the terms and conditions were not agreeable and was expecting some alterations at the hands of the landlord, the lease deed which was in custody of the defendant is produced by signing the document after he has received summons in the suit. Therefore, defendant's contention that he has signed the fresh lease agreement vide Ex.D-1 cannot be believed and it can be inferred that defendant No.1 signed fresh lease agreement after receipt of summons only to overcome quit notice issued by the plaintiff. If the defendant has not signed the lease agreement as per Ex.D-1 and if the earlier lease had expired by efflux of time, the question of even considering the waiver of notice would not arise in the present case on hand. As on 15.01.2015, the earlier lease had expired and the same stood determined by efflux of time and therefore, the question of waiver of notice would also not arise in the present case on hand. Even otherwise, the 18 material on record would clearly indicate that the fresh lease agreement as per Ex.D-1 was never concluded and therefore, the quit notice issued by the plaintiff as per Ex.P-4 is valid and plaintiff is entitled for delivery of vacant possession of the schedule premises.
20. The defendant has specifically contended that the quit notice is waived by the plaintiff by his own conduct. Placing reliance on Ex.D-1 (fresh lease agreement), he would also contend that the quit notice is premature and therefore, the ejectment suit is not maintainable. On perusal of Ex.P-4, it is clearly evident that plaintiff has clearly stated in the quit notice that the lease stands terminated and till the defendant hands over vacant possession, plaintiff is entitled for damages to the tune of Rs.14,515/- per month. The said fact is reiterated by the plaintiff in the second and third notices as per Exs.P-5 and P-6 and has stated that he is entitled to collect damages at the rate of Rs.14,515/-.
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21. Therefore, if the clinching evidence adduced by the plaintiff is examined, the contention of defendant that plaintiff by acceptance of rent after issuing quit notice amounts to waiver cannot be acceded to. The question whether acceptance of rent by the landlord was one from which one can impute to him the intention of creating of renewal of tenancy or treating the tenancy as still subsisting is a question of fact. In the present case on hand, the plaintiff landlord has stated in unequivocal terms that he is entitled for damages. In the preceding paragraphs, this Court has held that Ex.D-1 which is a fresh lease agreement is not a concluded contract as defendant did not agree to the terms and conditions in Ex.D-1. Therefore, the material on record clearly shows that defendant has signed Ex.D-1 after plaintiff issued legal notice and filed the present suit for ejectment. The first notice is dated 02.03.2015 as per Ex.P-4 and the third notice as per Ex.P-6 is dated 18.04.2015. For almost 2 months, defendant kept quite and did not express his intention of accepting the 20 terms and conditions vide Ex.D-1. Therefore, adverse inference has to be drawn against defendant.
22. In all probability, defendant while confronting Ex.D-1 to plaintiff in cross-examination has signed the document and has confronted Ex.D-1. The question of waiver also cannot be considered as it is not in dispute that it is a case of monthly tenancy and the lease had expired as on 15.01.2015. If the earlier lease had expired and the fresh lease agreement was not concluded, then plaintiff was entitled to collect damages at the rate of Rs.14,515/- and hence, the question of waiver of notice would not arise in the present case on hand. Accordingly, point Nos.1 and 2 formulated by this Court are answered in the negative.
Conclusions:
23. In the light of the findings recorded by this Court while answering point Nos.1 and 2, this Court has independently assessed the oral and documentary evidence 21 and would find that the learned Judge was justified in holding that the plaintiff has proved that there is valid termination of tenancy and therefore, was justified in decreeing the suit for ejectment directing the defendant to handover vacant possession. The learned Judge was justified in recording a finding that even if amount is sent by the defendant by way of cheque and the same is accepted by the plaintiff after issuing quit notice, it has to be presumed that the same is accepted towards damages. The judgment and decree of the Trial Court is in accordance with law and does not suffer from any infirmities.
24. For the reasons stated supra, the appeal is devoid of merits and the same is accordingly dismissed.
The pending interlocutory applications, if any, do not survive for consideration and accordingly stand disposed of.
At this stage, learned Senior Counsel for the appellant/defendant requests for granting some reasonable time to quit and deliver vacant possession. Accordingly, thirty 22 days time is granted to the appellant/defendant to quit and deliver vacant possession.
Sd/-
JUDGE CA