Bangalore District Court
Smt.Shobha Channabasavaiah vs M/S.Aero Club on 23 August, 2022
KABC010182012010
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 23rd DAY OF AUGUST 2022
Present: Sri.M.B.Kulkarni., B.Sc.,L.L.B.(Spl)
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.7258/2010
Plaintiff : Smt.Shobha Channabasavaiah,
Aged abut 38 years,
W/o.Sri.Channabasavaiah,
No.533, II 'A' Cross,
III Block, III Stage,
Basaveshwaranagar,
Bangalore-560 079.
(By Sri.SR/MK., Advocate)
-Vs-
Defendant : M/s.Aero Club,
A Partnership firm,
Having its registered Office at
No.867, Karol Bagh,
New Delhi - 1110 005,
Reptd., by its Partnership
Sri.Avatar Singh.
(By Sri.TSV, Advocate)
Date of institution of the suit : 18-10-2010
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Nature of the suit : Ejectment
Date of commencement of 01-04-2019
recording of the evidence :
Date on which the judgment : 23-08-2022
was pronounced
Total duration : Years/s Month/s Day/s
12 10 05
(M.B.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
This is the suit filed by the plaintiff against the defendant for ejectment of defendant from suit property and also for recovery of arrears of rent and also recovery of damages as prayed for..
2. Description of suit schedule property:-
Schedule All that piece and parcel of South-Eastern portion of the premises bearing No.654, situated at 100 Feet Road, Bhinnaamangala 1st stage, Indiranagar, Bangalore-560 038, 3 measuring super built-up area of 3,350/- Sq.ft, in the ground and Mezzanine floors and bounded on the:-
East by : 100 Feet Road;
West by : Private property;
North by : Remaining North-eastern portion in the
Ground floor of the premises bearing
No.654.
South by : Road
3. In brief, the case of the plaintiff is as follows:-
The plaintiff is the landlord of suit property and defendant is the tenant. The agreed monthly rent of suit property was Rs.7,50,000/- p.m., commencing from 01-02-2008. Though the lease deed was executed on 25-1-2008, the suit property was occupied by defendant in the month of October 2008. The property was let out by the plaintiff to the defendant to do the business of selling clothes, hosieries, sports garments, shoes, leather and wood products of woodland brand in the name and style of 'Woodlands', with condition to enhance the rent at the rate of 6% p.a. The defendant had paid the security deposit of Rs.1,12,50,000/- which is refundable to the defendant free of charging an interest. It was agreed by the defendant under the 4 lease agreement to pay the electricity charges, water charges and service taxes of the Government apart from the rent of the suit property. The defendant is a chronic defaulter in payment of rent and other charges like electricity, water and service charges from the month of November 2008. The defendant has paid service tax only up to October 2008 and not thereafter. The plaintiff provided 40 KV electric Power supply to the suit property from the KPTCL authorities. Apart from that, the defendant was also liable to pay the Generator charges till April 2010. The defendant committed default in payment of rent from 1-1-2009 along with service tax from November 2008. Therefore, the plaintiff got issued quit notice to the defendant on 29-10-2009 calling upon him to pay the arrears of rent and other charges as mentioned in the notice. The defendant has failed to comply with such legal notice. Therefore, the tenancy of the defendant was terminated by virtue of legal notice dated 6-1-2010, which was acknowledged by the defendant on 6-1-2010 itself. The defendant has forwarded false e-mails on 13-5-2010 and 25-5-2010 stating that he has vacated the suit property on 2-5-2000 itself and sought to settle the accounts of the suit 5 transaction. Though, the defendant has informed such fact as per the above e-mail, he has not handed over key of the suit property to the plaintiff. Though, it was mandatory to give three months of advance notice before vacating the suit property by the defendant, he has not issued such advance notice. Therefore, he was defaulter under law. The plaintiff has deducted the arrears of rent of suit property for the month of January 2009 and service tax is from November 2008 and got adjusted such amount in the advance deposit paid by the defendant. Therefore, the defendant has to pay the damages of Rs.8,42,700/- p.m. from the date of termination of tenancy till handing over the possession of the suit property i.e., till 18-2-2011. Therefore, the plaintiff sought for claim of Rs.1,13,17,180/- from defendant with interest at the rate of 18% p.a., The above said amount is claimed by him as mentioned at para No.14 of the plaint.
4. In pursuance of the suit summons, the defendant has appeared through his Counsel and filed written statement contending that there is no dispute about relationship between plaintiff and defendant as landlord and tenant till 2 nd of May 2010. 6
He has contended that defendant vacated the suit property on 2-5-2010 and requested the plaintiff to receive the key of the suit property and to get possession since the defendant got alternative accommodation for his business in the same locality for lesser rate of rent. It is contended that, there was an agreement between plaintiff and defendant as per letter dated 4-11-2008 to reduce the rent of suit property to the extent of 25% due to losses sustained by the defendant in his business and accordingly, rent was fixed for sum of Rs.5,62,500/- p.m., from January 2008 till December 2009. It is contended that further in view of the agreement between the parties, the future rent from January 2010 onwards was fixed to Rs.4,10,000/- p.m. It is contended that payment of recovery of the service charges is stayed by the Hon'ble High Court in the case of M/s.Maverick Holdings. Therefore, the plaintiff cannot claim service charges from defendant. The defendant has paid up to date electricity charges of the suit property till 2-5-2010. The defendant admitted in his written statement that he has paid deposit amount of Rs.1,12,50,000/- to the plaintiff for security purpose free of interest but claimed that the plaintiff is liable to return with interest 7 at the commercial rate. It is contended that, the plaintiff agreed to waive the yearly enhancement of rent and also agreed to receive the fixed rent at the rate of Rs.4,00,000/- p.m. from January 2010. It is further contended that, even though, the plaintiff consented by her letter dated 21-10-2009 but refused to reduce the rent to the extent of 25%. Later on, the plaintiff got issued legal notice dated 29-10-2009 to get renewal of the rent. Thereafter, when the defendant sent his representative to the house of the plaintiff regarding fixing of the rent, though the plaintiff consented for the same to reduce rent to the extent of 25% again by second legal notice dated 6-1-2010 plaintiff claimed full amount of the rent as mentioned in the Rent Agreement. Therefore, being frustrated by the attitude of the plaintiff, defendant issued notice dated 6-1-2010 informing the plaintiff to vacate the suit property and requested the plaintiff to refund the security amount with interest and settle the claim of defendant and also requested to receive the key of the suit property. It is further contended that the building super structure of suit property was constructed at the cost of the defendant amounting to Rs.36,00,000/- (Thirty Six Lakhs) totally wherein work of civil, mechanical and electrical and 8 other skilled workers like plumbing, painting etc., was executed at the instance of the defendant. The plaintiff is enjoying such super structure without payment of any amount. Hence, the plaintiff is liable to compensate to the defendant by way of counter claim of Rs.27,59,075/- with 18% interest. It is further contended that there is no cause of action for the suit and suit of the plaintiff is not maintainable. It is further contended that suit is not properly valued and the court fee paid by the plaintiff is not proper and correct. Hence, on these grounds prayed to dismiss the suit of the plaintiff and prayed to decree the counter claim of the plaintiff.
5. On the basis of the pleadings of both the parties, the following issues are framed by this Court:-
1. Whether plaintiff proves that defendant is due in a sum of Rs.83,36,796/-
towards arrears of rent, damages, electricity charges and further proves that the defendant is liable to pay interest at 12% p.a. from the date of suit till the date of payment?
2. Whether the plaintiff is entitled for future damages at the rate of Rs.8,42,700/-
p.m. from the date of suit till handing over vacant possession?
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3. Whether the defendant proves that it has duly vacated the suit schedule premises on 2-5-2010?
4. What Order or Decree?
Additional issues framed 0n 9-12-2016
1. Whether the plaintiff proves that the defendant was tenant under the plaintiff as on the date of the suit?
2. Whether the plaintiff proves that the sum of Rs.1,12,50,000/- (Rupees one crore twelve lakhs fifty thousand only) received by her paid as interest free deposit?
3. Whether the defendant demonstrates that the payment of the sum of Rs.1,12,50,000/- (Rupees One Crore Twelve Lakhs Fifty Thousand only) is a commercial transaction and the plaintiff is liable to refund the same along with interest?
4. Whether the plaintiff proves that she is entitled to adjust the above sum Rs.1,12,50,000/- (Rupees One Crore Tweleve lakhs Fifty Thousand only) towards arrears of rent/damages and service taxes paid?
5. Whether the plaintiff proves that she is entitled to collect the service tax as service provider from the defendant?
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6. Whether the plaintiff terminated the tenancy of defendant vide legal notice dated 06/01/2010?
7. Whether the plaintiff proves that prior to the filing of the suit, she had notified the defendant of the detailed settlement of accounts as averred by her in paragraph 6 & 13 of the plaint?
8. Whether the plaintiff proves that the defendant has refused to vacate and handover possession of the demised premises and if the plaintiff has acquired to the delayed vacation of the premise?
9. Whether the defendant proves that the plaintiff was aware of the fact that the defendant was vacating the premises on 02-05-2010?
10. Whether the defendant proves that the suppression of the legal notice dated 10-06/2010 addressed by the plaintiff's Counsel to the defendant s to be adversely inferred against the plaintiff?
6. After framing the issues, the matter is posted for plaintiff's evidence. The Power of attorney holder of the plaintiff has got examined in chief as P.W.1 and got marked documents at Exs.P.1 to P.73 and closed his side of evidence. At the side of the defendant, the authorized person of the defendant Company 11 got examined in chief as D.W.1 and got marked documents at Exs.D.1 to D.29 and closed his side of evidence. Thereafter, the matter is posted for arguments.
7. Heard the arguments of both sides. Perused the evidence placed on record.
8. After filing the suit during the pendency of the suit, the defendant has vacated and handed over the possession of suit property to the plaintiff by handing over the key of suit property in the open Court dated 18-11-2011 which is noted in the order sheet on that date of hearing. Therefore, by virtue of such development taken place during the pendency of the suit, consideration of Addl.issue No.8 is not necessary. Rest of the issues can be considered to give findings.
9. My findings to the above issues are as follows:-
Issue No.1 : Partly in the affirmative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : As per final Order
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Addl.Issues framed on 9-12-2016
Addl. Issue No.1 : In the affirmative
Addl.Issue No.2 : In the affirmative
Addl.Issue No.3 : In the negative
Addl.Issue No.4 : In the affirmative
Addl.Issue No.5 : Partly In the
affirmative
Addl.Issue No.6 : In the affirmative
Addl.Issue No.7 : In the affirmative
Addl.Issue No.8 : Does not arise
for consideration
Addl.issue No.9 : In the negative
Addl.Issue No.10 : In the negative
REASONS
10. Addl.issue Nos.1 and 2:- I have taken all these issues together for common discussion on the ground that they are interlinked with each other and to avoid repetition of reasoning.
It is not disputed by both the parties to the suit that the plaintiff is the landlord of suit property and the defendant is the tenant of suit property. It is also not disputed by both parties to the suit that, the lease deed of suit property came to be executed 13 on 1-2-2008 though the recitals of lease deed were kept ready on 25-1-2008 and it is also not disputed by both parties to the suit that, the defendant has paid Rs.1,12,50,000/- to the plaintiff towards free interest security deposit amount. All these facts are admitted by both parties to the suit in their pleading and in evidence. Therefore, I answered Addl.issue Nos.1 and 2 in the affirmative in view of the admissions of parties.
11. Issue Nos.1 & 2 & Addl.Issue Nos.4:- It is the recital of the Lease deed as per Ex.P.2 Rent Agreement, that the monthly rent was fixed as per English calendar at the rate of Rs.7,50,000/- p.m. with a condition to enhance the rent at the rate of 6% every year and the lease period was fixed for the period of 5 years from 1-2-2008 till 31-1-2013. It is one more condition of the Rent agreement that, the rent shall commence from 1st day of March 2008 and one month rent free enjoyment opportunity of suit property was given to the defendant to start his business from 1-2-2008 but actually defendant started business from 29-2-2008. It is further recital of Ex.P.2 Rent Agreement that, the property taxes of the Government shall be borned by the 14 lesser/plaintiff and lessee shall obtain the required licence from the local body to run his business in the suit property and it is the further condition that, the lessee/the defendant shall pay electricity charges, water charges and service taxes including the generator charges, which are not deductable in the amount of rent. It is also one of the condition of lease deed that, the lease can be renewable at the option of the lessee after period of two years from the date of expiry of the lease period and in that case, the lessee shall be liable to pay 6% enhanced rate of interest. It is also one of the condition of the lease deed of the suit property that the lock in period of the lease of the suit property is fixed by two years from the date of lease deed. Therefore, if the lessee i.e., defendant intends to vacate the suit premises before lock in period, he has to pay the full rent up to two years during lock in period. It is also one of the condition of the lease deed that, in case of termination of lease, the lessee shall give three months advance notice to the lesser by written notice after completion of the lock in period. It is agreed by the plaintiff/lesser to supply 49 KVA electricity power to the lessee/the defendant for his business. It is also one of the condition of the lease deed that the 15 lessee/defendant is liable to pay loss caused to the lesser/plaintiff during the period of lease. As per the condition No.15(c) if any damages caused to the property under tenement due to earthquakes, storms, tempest, flood or other act of god, war air raid, civil commotion, or any irresistible forces etc, then only the lease can become void but not in any other case, due to loss sustained by the defendant during his business of any kind.
12. There is no any recital in lease agreement that, in case of any loss sustained by the lessee/defendant, the rent amount can be reduced or the defendant is exempted from payment of service charges etc., to the plaintiff. Therefore, in absence of any such condition in the agreement of lease, if any loss sustained by the defendant during the course of his business from the date of commencement of the lease till vacating the suit property i.e., 18-2-2011, the defendant has no right to deduct the amount of rent or service charges towards payment of rent of the suit property or advance deposit security amount paid by him to plaintiff. As per condition No.16 of the rent agreement (Ex.P.2) if the lessee/defendant fails to pay the rent for a period of two 16 months and becomes a defaulter, the lesser/plaintiff is entitled to take legal action against him for breach of the lease agreement. But, clause(b) of condition No.16 provides that, in case of any breach of terms of agreement either party to the agreement shall have the option to terminate agreement, if the breach is not remedied within 15 days. Therefore, by virtue of such condition of lease deed, if at all, the defendant/lessee had suffered actual loss in his business he could have put an end to the lease transaction by making full payment of rent of suit property, for the entire lock in period and should have handed over the key of the suit property to the plaintiff/lesser, within 15 days from the date of Ex.P.19, dated 25-2-2008. But, for the reasons best known to him he has continued the tenancy of the suit property and went on with the many deliberations and correspondence through e-mail with the plaintiff to get the expected result from the plaintiff. Therefore, when the defendant himself is at fault, he cannot blame the plaintiff for not issuing notice within two months from the date of default of payment of the rent amount. 17
13. It is pertinent to note here that, even though there is clause in lease agreement stating that, the lesser has right to put an end to the lease transaction on the failure of the defendant/tenant to pay monthly rent for a period of two months, the lesser/plaintiff has given sufficient opportunity to the defendant to continue his tenement in the suit property by improving his conduct of payment of arrears of rent and plaintiff called upon the defendant to pay the arrears of rent and other charges by virtue of the letters written by him as per Exs.P.25, P.32, and P.35, P.36, P.39, P.41, P.42, P.53 and P.66. By virtue of Ex.P.6, the plaintiff has called upon the defendant/tenant stating that in response to letter of defendant dated 4-11-2008 a final decision was arrived at by the plaintiff to reduce the rent by 25% over the existing rent subject to extension of lock in period for further period of two years as per e-mail dated 17-4-2009 and requested the defendant to take appropriate action in that regard. Therefore, in spite of giving consent by plaintiff to reduce 25% rent amount out of total rent amount by the plaintiff, the defendant/lessee did not sign the memorandum of understanding only for the reason that the defendant was not ready to take risk 18 of continuing lease period for another two years by way of lock in period. Even on that stage also, when Ex.P.66 was addressed by the plaintiff to defendant dated 21-10-2009 when the defendant thought that the transaction is not going to materialize, the defendant could have put an end to the contract by making payment of the entire dues of rent with other charges and defendant should have handed over key of the suit property to the plaintiff by delivering possession of the same to the plaintiff, but for the reasons best known to the defendant he continued the occupation of the suit property till 18-2-2011. Therefore, there are no bonafide on the part of the defendant to contend contrary to such material evidence placed on record. Therefore, the plaintiff is entitled for deduction of the rent amount and other legally recoverable charges from the security deposit paid by the defendant to the plaintiff, by way of adjusting the security deposit amount towards arrears of rent and damages..
14. Now, coming to the point of the liability of payment of amount of arrears of rent and service taxes and generator charges and its period are concerned, the careful perusal of the 19 cross-examination of P.W.1 clearly reveals that, the plaintiff has admitted in the cross-examination that, the defendant has paid rent of the suit property to the full extent amounting to Rs.7,50,000/- p.m. as per the lease agreement till December 2008. Therefore, in view of such admission of plaintiff in cross examination, the arrears of rent shall be due only from January 2009 onwards though, the defendant has not consented for continuation of the lease period for another two years from the date of Ex.P.66 i.e., from October 2009 to April 2011. Hence, the plaintiff is entitled to recover 75% of the rent amount out of total agreed rent amount of Rs.7,50,000/- from first January 2009 till 18-2-2011 along with the actual electricity and water charges and generator charges with interest from the date of filing of the suit till the date of vacating suit property by defendant 18-2-2011 including service charge and generator charges to the extent of 75% only. Hence, the plaintiff is entitled to recover the arrears of rent of suit property at the rate of Rs.4,75,000/- per month from 1st January 2009 till 18-2-2011 (as on the date of handing over possession of suit property) i.e., for a period of 25 months seven days, which amounts to Rs.1,19,85,833/- (One Crore Nineteen 20 Lakhs Eighty Five Thousand Eight Hundred and Thirty Three) towards arrears of rent. Apart from that, the plaintiff is also entitled to claim service charges proportionate to the rent agreement, which shall be reduced to the extent of 25% i.e., 75% of the service charges claimed by him in his plaint that is Rs.86,798/- & 75% of such amount will be Rs.65,098.50 rounded off to Rs.65.099/- (Rupees Sixty Five Thousand Ninety Nine). Such total amount of service charges for two years one month and seven days i.e., for 25 months 7 days amounts to Rs.16,42,665/- total arrears of electricity charges of Rs.42,000/- and Rs.10,000/- generator charges. Therefore, plaintiff is entitle to recover Rs.1,19,85,833/- + 16,42,665/- + 42,000/- + 10,000/-, in all amounting to Rs.1,36,80,498/-
15. So far as rate of interest is concerned, the plaintiff has claimed interest at the rate of 18% p.a. on the arrears of rent of Rs.1,36,80,498/- and also interest on damages and other charges. The careful perusal of Ex.P.2 lease deed does not reveal about payment of such penal charges of recovery of interest from the defendant at the rate of 12% p.a. in case of 21 default of payment of rent and other charges. Even for sake of arguments, such agreement is entered into by the parties charging of 18% interest shall be at higher side and it is not justified. Therefore, in the opinion of the Court, charging of the interest over the arrears of rent amount and other charges at the rate of 8% p.a. will meet the ends of justice, which is the rate of interest payable by the nationalized Banks over the fixed deposit as per the RBI Rules during the year 2009 to 2011. Hence, the plaintiff is entitled to deduct the above said amount with interest at the rate of 8% p.a. from the security deposit free of interest amount of Rs.1,12,50,000/-. So, Rs.1,36,80,498-00 - 1,12,50,000-00 = 24,30,498-00. The plaintiff is entitled for set off Rs.1,12,50,000/- by way of deduction and entitled to recover remaining balance amount of Rs.24,30,498/- (Twenty Four Lakhs Thirty Thousand Four Hundred and Ninety Eight) with interest @ 8% p.a. from 1-1-2009 till decree and future interest @ 6% from the date of decree till realisation of decreetal amount. Accordingly, issue Nos.1 & 2, 4 are answered. 22
16. Addl.Issue No.5:- It is pertinent to note here that, since the plaintiff is liable to pay GST to the Government and CST to the Central Government along with income tax returns and since the defendant has admitted such payment of service tax to the plaintiff in the amended written statement at para No.25 by way furnishing particulars in tabular form of calculation and also since the defendant has not produced any document to prove that there is no agreement to pay the service tax to the plaintiff, Addl. Issue No.5 requires to be answered in the affirmative since the plaintiff has proved that issue and defendant failed to disprove that issue.
17. Addl.Issue No.6:- The plaintiff by production of Ex.P.9 document i.e., the office copy of the legal notice and postal receipts and postal acknowledgment marked at Exs.P.10 to P.12 and also by production of one more notice marked at Ex.P.13 along with postal receipts and endorsement marked at Exs.P.14 and P.15 and one more legal notice marked at Ex.P.16 along with postal receipt marked at Ex.P.17 proved that he has terminated the tenancy of the defendant on 6-1-2010 itself for the 23 first time and on 10-06-2010 for second time. The defendant has admitted such fact of receipt of notice of termination of his tenancy by virtue of Exs.P.9, P.13 and P.16. Hence, I answered Addl.issue No.6 in the affirmative.
18. Addl.issue No.7:- It is pertinent to note here that, the plaintiff by production of Exs.P.9, P.13 and P.16 discussed supra along with Ex.P.66 proved that he has already notified the detailed settlement of accounts to the defendant as contended by her in para Nos.6 & 13 of plaint and such documents are not denied by the defendant but on the other hand, the defendant admitted the same in his cross-examination. Therefore, the plaintiff proves Addl.issue No.7. Hence, I answered issue No.7 in the affirmative.
19. Issue No.3 and Addl.issue No.9:- It is the defence of the defendant that the plaintiff is aware of the fact that, the defendant had vacated the suit property on 2-5-2010. In order to prove such contention of the defendant taken in his written statement, he has not produced any documents in that regard. Nowhere in Ex.P.63 or in Ex.P.72 or in Ex.P.73, there is any 24 recital regarding the proposal of handing over of key of the suit property to the plaintiff and fact of intimating the plaintiff to come to the suit property and receive the key of the suit property and take possession of the suit property for not continuing the occupation of suit property by the defendant. Therefore, non production of any material evidence on record by the defendant to prove the fact of handing over of the possession of suit property to the plaintiff dated 2-5-2010 calls for drawing adverse inference against the defendant and the careful perusal of the cross-examination of D.W.1 reveals that he accepted and admitted in cross-examination that for the first time he has handed over the key of the suit property in the open Court dated 18-2-2011 but not prior to it. Therefore, whatever the contention taken by the defendant in his written statement stating that several time he has requested the plaintiff to receive the possession of the suit property and to take custody of the key of suit property much less on 2-5-2010 is not proved by the defendant. Hence, I answered Issue No.3 & Addl.Issue No.9 in the negative.
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20. Addl.issue No.10:- It is the defence of the defendant that, the plaintiff has suppressed the legal notice dated 10-6-2010 for which, adverse inference requires to be drawn against the plaintiff for not taking action within two months from the date of non payment of the arrears of rent by the defendant. It is pertinent to note here that, even though, there is a condition in Ex.P.2 lease deed that for non payment of the rent of suit property by defendant within two months from that date, the plaintiff i.e., landlord can initiate legal action against the defendant/tenant but it does not mean that the plaintiff shall necessarily obliged to initiate such legal action against the defendant but it is the option given to the plaintiff/landlord either to initiate legal action immediately after commission of default for non-payment of arrears of rent by defendant within two months or to extend time to provide some more time & opportunity to the defendant/tenant to continue that lease by making payment of the arrears of rent. When the negotiations of the reduction in the rate of rent of suit property was going on between the plaintiff and defendant as per Exs.P.18 to P.23 and P.25 to P.66 from 9 th February 2008 to 21st October 2009, it appears that the plaintiff 26 was prevented from issuing legal notice to the defendant to put an end to the tenancy transactions since the defendant was inclined to continue the tenancy on the condition to reduction of the rent amount to the extent of 50% whereas, the landlord/plaintiff was not ready to reduce rent of the suit property less than 25%. Therefore, due to negotiations between the parties which took much time of about 1 ½ year time for settlement of terms of lease, the plaintiff was prevented from issuing notice of termination of tenancy. Therefore, after conclusion of the tenancy matter and when the parties were unable to continue as landlord and tenant of the suit property, finally as a last resort plaintiff took legal action of terminating the tenancy of the defendant by issuing legal notice dated 6-1-2010 and such act of the plaintiff is not intentional delay but he was prevented for reliable cause in view of the negotiations between the parties for reduction of rent amount. Hence, the defendant failed to prove Addl.issue No.10. Therefore, I answer Addl.issue N.10 in the negative.
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21. Addl.Issue No.3:- It is the defence of the defendant that, the amount of Rs.1,12,50,000/- paid by defendant to plaintiff was refundable with commercial rate of interest since it is a commercial transaction but the same is opposed by plaintiff. The careful perusal of Ex.P.2 the registered lease agreement and Ex.P.3 i.e., annexure -II does not reveal anywhere that the amount of Rs.1,12,50,000/- paid by defendant to plaintiff was refundable with interest at the rate of 18% as claimed by the defendant in his written statement. On the other hand, the careful perusal of cross-examination of D.W.1, it is clearly reveals that, D.W.1 has admitted in his cross-examination stating that, there is no any document produced by defendant in this suit to prove that the amount of Rs.1,12,50,000/- paid by defendant to plaintiff was for commercial transaction which was required to be refunded with interest at the rate of 18% pa.
22. So far as this issue is concerned, it is the defence of the defendant that, he is entitled to recover the counter claim amount of Rs.1,12,50,000/- (One Crore Twelve Lakhs Fifty Thousand) from the plaintiff as commercial transaction and the 28 plaintiff is liable to refund such amount to the plaintiff with interest at the rate of 12% p.a. Therefore, I answered Addl.issue No.3 in the negative.
23. In order to prove such defence the defendant has not produced any document which is going to reveal about such fact. The careful perusal of Ex.P.2 or any other document produced by the defendant does not reveal about the nature of the amount tendered by defendant to plaintiff amounting to Rs.1,12,50,000/- is commercial transaction which carries interest to be refunded by plaintiff to the defendant with interest at the rate of 12% but on the other hand, Ex.P.2 document clearly reveals that it is none other than the interest free deposit amount for security of the lease transaction between plaintiff and defendant which is to be refunded by plaintiff to defendant after vacating suit property by defendant by deducting the arrears of rent or damages caused to the suit property if any by the defendant.
24. D.W.1 in his cross-examination has clearly admitted stating that the amount of Rs.1,12,50,000/- given by defendant to the plaintiff is only a security amount free of interest but not 29 commercial loan transaction amount. Apart from that, the defendant himself suggested in the cross-examination of plaintiff that the amount of Rs.1,12,50,000/- given by defendant to plaintiff was towards security deposit amount which does not carry any interest. Therefore, in view of such admissions of defendant, the defendant failed to prove Addl.issue No.3. Hence, I answered Addl.issue No.3 in the negative.
25. So far as rate of interest is concerned, the plaintiff has claimed interest at the rate of 18% p.a. on the arrears of rent, damages and other charges. The careful perusal of Ex.P.2 lease deed does not reveal about payment of penal charges of recovery of interest from the defendant at the rate of 18% p.a. in case of default of payment of rent and other charges. Even for sake of arguments, such agreement is entered into by the parties charging of 18% interest shall be at higher side and it is not justified. Therefore, in the opinion of the Court, charging of the interest over the rent amount and other charges at the rate of 8% p.a. will meet the ends of justice, which is the rate of interest payable by the nationalised Banks over the fixed deposit as per 30 the RBI Rules. Hence, the plaintiff is entitled to deduct the above said amount with interest at the rate of 8% p.a. from the security deposit free of interest amount to Rs.1,12,50,000/-.
26. Issue No.4:- In view of the above reasoning, I proceed to pass the following:-
ORDER Suit of the plaintiff is hereby partly decreed with costs.
The counter claim of defendant is hereby dismissed.
The plaintiff is entitled for recovery of arrears of rent of suit property from 1-1-2009 till 18-2-2011 at the rate of 4,75,000/- (Four Lakhs Seventy Five Thousand) p.m. i.e., 75% of the rent amount as against the agreed rate of rent amount of Rs.7,50,000/-(Seven Lakhs Fifty Thousand) p.m., amounting to Rs.1,19,85,833 (Rupees One Crore Nineteen Lakhs Eighty Five Thousand Eight 31 Hundred and Thirty Three) with service charges proportionate to the arrears of rent at the rate of 75% already claimed by him amounting to Rs.16,42,665/- (Sixteen Lakhs Forty Two Thousand Six Hundred and Sixty Five) along with fixed electricity charges of Rs.42,000/-(Forty Two Thousand) and generator charges of Rs.10,000/- (Ten Thousand) totally amounting to Rs.1,36,80,498/- (One Crore Thirty Six Lakhs Eighty Thousand Four Hundred and Ninety Eight). The plaintiff is entitled to adjust the advance security amount paid without interest amounting to Rs.1,12,50,000/-(One Crore Twelve Lakhs Fifty Thousand) in the above said amount liable to be paid by the defendant to the plaintiff and after deduction of that amount, the balance amount payable by defendant to plaintiff is Rs.24,30,498/-
(Twenty Four Lakhs Thirty Thousand Four Hundred and Ninety Eight) to be payable with interest at the rate of 8% p.a from the date of filing of suit till the date of decree and the future interest at the rate of 32 6% p.a., from the date of decree till the date of realisation of decreetal amount.
Draw Decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 23rd day of August 2022) (M.B.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Sri. Channabasavaiah Witnesses examined on behalf of the defendant D.W.1 : Sri.Sudharkar.G Documents marked on behalf of the plaintiff.
Ex.P.1 : GPA
Ex.P.2 : Registered Lease Deed
Ex.P3 : Annexure to Lease Deed
Ex.P.4 : Letter dt:20-5-2017
33
Ex.P.5 : Impounding Order dt:29-6-2017
Ex.P6 : Reply
Ex.P.7 : Order passed by the Authority
Ex.P.8 : Endorsement
Ex.P.9 : Copy of the legal notice
Ex.P.10 : Postal receipt
Ex.P.11 : Letter written to the postal master Ex.P.12 : Reply by the postal department Ex.P.13 : Quit notice Ex.P.14 : Postal receipts E.P.15 : Endorsement issued by the postal department Ex.P.16 : Another notice Ex.P.17 : Endorsement issue by the Postal Department Ex.P.18 : Letter received by the plaintiff from the defendant on 9-2-2008 Ex.P.19 : Another letter dated 25-2-2008 Ex.P.20 : Letter dated 4-2-2008 Ex.P.21 : Letter dated 4-9-2008 Ex.P.22 : Letter dated 4-10-2008 34 Ex.P.23 : Letter dated 4-11-2008 Ex.P.24 : Cover Ex.P.25 : Another letter dated 2-12-2008 Ex.P.26 : Postal receipt Ex.P.27 : Postal acknowledgment Ex.P.28 : Letter dated 4-12-2008 Ex.P.29 : Letter dated 6-12-2008 Ex.P.30 : Letter dated 19-12-2008 Ex.P.31 : Postal cover Ex.P.32 : Letter dated 24-12-2008 Ex.P.33 : Postal receipts Ex.P.34 : Postal acknowledgment Exs.P.35 : Mails dated 2-2-2009, 13-2-2009 to P.37 & 16-2-2009 Ex.P.38 : Letter dated 25-2-2009 Ex.P.39 : Letter dated 28-2-2009 Ex.P.40 : Courier receipts Ex.P.41 : E-mail dated 17-4-2009 Ex.P.42 : Letter dated 17-4-2009 Exs.P.43 : Postal receipts & P.44 35 Exs.P.45 : Acknowledgments P.46 Ex.P.47 : Cover Ex.P.48 : Letter dated 4-5-2009 Exs.P.49 : Postal receipts & P.50 Ex.P.51 : Postal receipts & P.52 Ex.P.53 : Letter dated 5-5-2009 Exs.P.54 : Postal receipts & P.55 Exs.P.56 : Postal acknowledgments & P.57 Ex.P.58 : Letter dated 13-6-2009 Ex.P.59 : Two postal receipts & P.60 Exs.P.61 : Postal acknowledgments & P.62 Ex.P.63 : Letter dated 13-10-2009 Ex.P.64 : Postal cover Ex.P.65 : Letter Ex.P.66 : Letter dated 21-10-2009 Ex.P.67 : Postal receipt 36 Ex.P.68 : Postal acknowledgments Ex.P.69 : Letter to the Post Master Ex.P.70 : Reply by the Post office Ex.P.71 : Reply dated 27-11-2010 Ex.P.72 : Mails sent by the defendant & P.73 Documents marked on behalf of the defendants.
Exs.D.1 : Two photographs
& D.2
Ex.D.3 : Copy of memo of calculation
Ex.D.4 : Tax Invoice
Exs.D.5 : Ledger Account Extracts
to D.9
Exs.D.10 : Invoices
to D.12
Exs.D.13 : Bills
& D.14
Ex.D.15 : Tax Invoices (6)
Exs.D.16 : Credit bills
to D.18
Ex.D.19 : Tax Invoice/bills (10)
Ex.D.20 : Tax Invoice/bills (28)
37
Ex.D.21 : Tax Invoice/bills (28)
Ex.D.22 : Tax Invoice/bills (24)
Ex.D.23 : Payment vouchers
Ex.D.24 : Cash Invoice/bills (14)
Ex.D.25 : Cash receipt
Ex.D.26 : Master cards (14)
Ex.D.27 : Payment Voucher
Ex.D.28 : Payment voucher
Ex.D.29 : Bill/Tax Invoice (6)
(M.B.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru