Bangalore District Court
Sri.Abdul Hammed @ Pyarejan vs Sri.H.Surya Prakash on 14 December, 2015
IN THE COURT OF THE XXX ADDL.CITY CIVIL
JUDGE, BANGALORE CITY
DATED THIS THE 14th DAY OF DECEMBER 2015
-: PRESENT: -
SRI.M.G.KUDAVAKKALIGER, B,Com., LL.M.,
XXX Addl.City Civil Judge,
Bangalore.
O.S.NO.5013/2009
PLAINTIFF/S. Sri.Abdul Hammed @ Pyarejan
S/o Late Abdul Sttar, No.11,
Resildar Street, Seshadripuram,
Bengaluru-560 020.
(By Pleader H.P.Leeladhar & Co.,
Adv.)
/VS/
DEFENDANT/S. Sri.H.Surya Prakash,
No.247, 9th main, 1st Block,
Kalyananagar, Bengaluru-43, Kartha
of HUF.
And also Air Links International,
No.214, Connection Point, 2nd floor,
Airport Exit Road, Bengaluru-17.
And also Air Links International,
No.213, Connection Point, 2nd floor,
Airport Exit Road, Bengaluru-17.
And also Air Links International,
2 O.S.No.5013/2009
No."guru Krupa", No.1967, 20th
main, 2nd Phase, J.P.Nagar,
Bengaluru-78.
DATE OF INSTITUTION 29-7-2009.
NATURE OF THE SUIT (Suit on Suit for money
Pronote, Suit for declaration and recovery.
Possession, Suit for injunction, etc.)
DATE OF THE COMMENCEMENT 23-8-2011
OF RECORDING OF THE EVIDENCE
DATE ON WHICH THE JUDGEMENT 14-12-2015
WAS PRONOUNCED
TOTAL DURATION : YEAR/S MONTH/S DAY/S
6 4 16
(M.G.KUDAVAKKALIGER),
XXX ADDL.CITY CIVIL JUDGE,
BENGALURU.
3 O.S.No.5013/2009
JUDGEMENT
1. The plaintiff has filed this suit for recovery of arrears of rent from November 2007 to 31-3-2009 for a sum of Rs.4,69,452/- and other reliefs including the cost of the suit, in the interest of justice.
2. The following are the brief facts leading to the case of the plaintiff:
That the plaintiff is the absolute owner of the house premises bearing No.633, 6th block, Koramangala, Bengaluru consisting of ground, first and second floors, which is morefully described in the schedule annexed to the plaint. The plaintiff submits that on negotiations, the defendant is inducted as a tenant in respect of the suit schedule premises on a monthly rent of Rs.48,000/-
p.m. with an enhancement of 5% every year on the existing rent of previous year. A lease agreement was executed by the defendant herein on 1-4-2004. As per the rent agreement, the defendant has paid a rent 4 O.S.No.5013/2009 advance of Rs.4,80,000/- which is to be returned at the time of vacating and handing over the vacant possession of the schedule premises without any interest. It is also agreed that duration of the lease is for a period of 11 months commencing from 1st day of English calendar month and ended in the last day of same month. It was also agreed that rent has to be paid on or before 5th day of each month of the previous months rent. It is further agreed that in the event of any extension for further period of 11 months, 5% over and above in the previous rent has to be enhanced from the existing rent.
It s submitted by the plaintiff that defendant has commuted breach of contract of the lease agreement and also defaulted n the payment of rent from July 2007 onwards. The plaintiff issued legal notice dtd.14-8-2007 terminated the tenancy of the defendant and intimating the defendant to handover the vacant possession of the suit schedule premises. But, notice sent to the defendant 5 O.S.No.5013/2009 was returned as information dropped, but notice sent to the defendant under certificate of posting was duly served. Further, he submitted that as defendant has failed to comply with the demand of the notice as stated above there was arrears of rent from July 2007 to 30- 10-2007, a sum of Rs.2,20,800/-, hence, plaintiff has filed suit for ejectment and recovery of arrears of rent in O.S.No.8467/07 on the file of the City Civil Judge, Bengaluru City, Bengaluru. The defendant has appeared and filed his written statement, after leading evidence, the Hon'ble Court has decreed the suit on 19-2-2008 holding that "therefore, I hold that the possession of the schedule premises is to be lawfully delivered t the plaintiff through the Court. Since the schedule premises is kept and under lock, do not see any reason to give any time to defendant to lawfully vacate the schedule premises to the plaintiff. Therefore, I hold that the sit of the plaintiff is decreed as prayed for, I pass the 6 O.S.No.5013/2009 following order "Order-The suit of the plaintiff is decreed with cost against the defendant. The defendant is hereby direct to quit, vacate and deliver the vacant possession of schedule premises to the plaintiff forthwith. The defendant is also directed to pay arrears of rent from August 2007 to October 2007 amounting to Rs.1,66,698/-. Draw a decree accordingly."
The plaintiff further submitted that even though suit was decreed on 19-12-2008, defendant has not handed over the vacant possession of the schedule premises along with more than 105 keys. Thereafter, the plaintiff was forced to file execution petition No.412/2009 for recovery of arrears of rent from August 2007 till October 2007 and also costs, totally amounting to Rs.2,28,149/-. It is submitted that in the execution petition, the plaintiff was able to get the possession of the schedule property by breaking open the door on 31-3-2009 and the recovery of the amount in 7 O.S.No.5013/2009 the said execution petition is still pending before the City Civil Judge, Bengaluru. Plaintiff further submitted that the defendant even after filing of the suit, though defendant has to pay the rent every month even after October 2007 till getting vacant possession of the schedule premises by breaking open door on 31-3-2009, the defendant has not paid the rent. Hence, the defendant is liable to pay rent to the plaintiff from November 2007 to March 2009 at the rate of Rs.55,556/- p.m. i.e. totally for 17months plus legal notice charges of Rs.5,000/-, totally the defendant is liable to pay Rs.9,49,452/-, out of which less Rs.4,80,000/- rent advanced, the defendant is still liable to pay Rs.4,69,452/-. Hence, prayed to decree the suit.
3. As contemplated under law, the suit summons came to be issued to the defendant. The defendant has appeared through her counsel and filed her written statement contending inter-alia that the suit filed by the plaintiff 8 O.S.No.5013/2009 is not maintainable in the eye of law and on facts. Hence, liable to be dismissed. This defendant has admitted the contents of plaint paras-1 and 2 with regard to the ownership of the plaintiff to the suit schedule property. But, this defendant has denied the contents of para-3 of the plaint that defendant is the tenant of I and II floors of the schedule premises with all facilities and defendant calls the plaintiff for strict proof of the same. This defendant denied the allegations made by the plaintiff and prayed to dismiss the suit in limine for non- joinder of necessary parties to the proceedings and contended that this defendant claims to be the kartha of HUF and that HUF is the tenant under the plaintiff. However, the defendant has neither in his personal capacity or as a kartha of HUF entered into the relationship of tenant and landlord with the plaintiff for himself on behalf of HUF in respect of the suit schedule premises. The defendant is the Managing Partner of 9 O.S.No.5013/2009 partnership firm M/s.Airlinks International constituted under the Indian Partnership Act engaged in the business of international freight forwarding and project cargo handling and consultancy and also undertaking business of providing accommodation for its staff, partners, corporate clients and guests. M/s.Airlinks International made invitation to residential building owners in general that they need of 6 bed room residential apartment for 6years in Time of India newspaper. The plaintiff responded through his broker one Sri.Vijaya, and after negotiation, defendant has entered into a rental agreement on 1-4-2004 for a long lease of 6 years with the plaintiff and the lease agreement was registered in the name of partnership firm M/s.Airlinks International, and has paid rent advance of Rs.4,80,000/-. The averments made in para-4 to the effect that after offer and acceptance, the defendant is inducted as a tenant in respect f the 10 O.S.No.5013/2009 schedule premises on the monthly rent of Rs.43,000/- with an enhancement of 5% every year on the existing rent of previous year are denied as false and calls the plaintiff for strict proof of the same. He further submits that at no point of time, the defendant has negotiated with the plaintiff either in his personal capacity or as a Kartha of HUF and the defendant was not inducted to the pliant schedule premises in the capacity of a kartha of HUF or in his individual capacity and it was the firm which has been inducted as tenant under the plaintiff and he has at no point of time tendered rent to the plaintiff in respect of the premises. The rents payable under the Lease Agreement were paid only by the firm M/s.Airlinks Interntional. The defendant further submits that to make the premises as functional as residential cum guest house, they have made interior decoration for about 10 months for upgrading the suit schedule premises by expending 11 O.S.No.5013/2009 more than Rs.15 lakhs. The averments made at para 5 to the effect that as per the terms and conditions, the defendant is bared from sublet, assign or otherwise part wit the possession of the premises to or in favour of any one else is denied as false and calls the plaintiff to strict proof of the same. This defendant denied the allegations made in the plaint para-8 that in the Ex.Petition plaintiff was able to get the position of the schedule property by breaking open the door on 31-3- 2009 is false and denied. In fact, the defendant has handed over the possession of the schedule property to the plaintiff through the Koramangala police. The averments made at para-9 that the defendant has to pay the arrears of rent of Rs.4,69,452/- upto 31-3-2009 is false and denied. The defendant contended that he has paid entire amount to the plaintiff and hence, there are no arrears of rent as claimed by the plaintiff. There is no cause of action to file the suit. The Court fee paid by 12 O.S.No.5013/2009 the plaintiff is not sufficient and hence, the suit is liable to be dismissed. The defendant contended that he has sent a letter to the plaintiff for termination of lease and rental agreement dtd.10-1-2008 stating that the lease of the schedule premises s terminated by way of this letter with effect from 1-1-2008 and requesting the plaintiff to refund the advance amount as per the terms and conditions and the plaintiff has acknowledged the said letter but failed to reply the same. Hence, the lease of the schedule premises is terminated on 10-1-2008 and hence, the question of payment of arrears of rent does not arise and hence, the sit is liable to be dismissed. Thereafter, the defendant has sent letter dtd.19-2- 2008 stating that the plaintiff not supposed any claim regarding rent from January 2008 since the rental agreement is already terminated. Thereafter the defendant sent number of letters to the plaintiff requesting to refund the advance amount, but failed to 13 O.S.No.5013/2009 do the same. The plaintiff has deliberately avoided to refund the advance amount and hence, the question of payment of arrears of rent does not arise and hence, the suit is liable to be dismissed. The defendant with no other option has lodged a complaint with the jurisdictional police regarding harassment and criminal intimidation against the plaintiff. Thereafter, with no other option with the help of police collected all the belongings form the schedule premises by the defendant and the keys of the said premises has been handed over to the Koramangala police by way of letter dtd.4-10- 2008 and in this regard defendant wrote a letter to the plaintiff on 6-10-2008. In view of the termination of lease and handing over the premises to the police with an intimation to the plaintiff, the question of payment of arrears of rent does not arise and the plaintiff has falsely claimed the rent without any locus-standee and hence, the suit is liable to be dismissed. Hence, prays to 14 O.S.No.5013/2009 dismiss the suit with exemplary cost and prays to direct the plaintiff to pay the advance money of Rs.4,80,000/-.
4. From the above pleadings of both the parties, the following issues have been framed by my Learned Predecessor in office for disposal of the case:
1. Whether the plaintiff proves the liability of the defendants to pay a sum of Rs.9,44,452/- being the rent of total 17 months i.e. from November 2007 till March 2009 at the rate of Rs.55,556/- per month as contended?
2. Whether the plaintiff is entitled to decree for a sum of Rs.4,69,422/- after deducting the rent advance of Rs.4,80,000/- as prayed for?
3. What decree or order?
Addl.Issue:
1. Whether defendant proves that plaintiff is liable to pay Rs.4,80,000/- being the advance amount taken at the time of induction of the tenancy?
5. In order to substantiate the case made out by the plaintiff, plaintiff has filed his affidavit evidence as P.W.1 and got marked as many as 18 documents as per 15 O.S.No.5013/2009 Ex.P.1 to P.18. In order to rebut the case of the plaintiff, the General Power of Attorney Holder of defendant has filed his affidavit evidence as D.W.1 and two witnesses as D.W.2 & D.W.3 and got marked as many as 41 documents as per Ex.D.1 to D.41. Case posted for arguments.
6. I have heard the arguments on the side of the plaintiff and perused the materials placed on record.
7. On the basis of the evidence both oral and documentary and other materials., I record my findings to the above issues as follows:
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: As per the final order for the following:
Addl.Issue No.1 : In the affirmative.
REASONS
8. ISSUE NOS.1, 2 & ADDL.ISSUE NO.1: As Issue Nos.1, 2 and Additional Issue No.1 are interlinked, 16 O.S.No.5013/2009 discussion on one issue has its direct bearing on the discussion on another issue. In view to avoid repetition of discussion and facts of evidence, I am going to consider all these issues jointly.
9. The brief facts of the plaintiffs' case is that the plaintiff is the owner of the suit schedule property, defendant is inducted as a tenant in respect of the suit schedule property on a monthly rent of Rs.48,000/-. A lease agreement has been executed on 1-4-2004. As per the rent agreement, defendant has paid rent advance of Rs.4,80,000/- which is returnable at the time of vacating and handing over the vacant possession of the suit schedule property without any interest. The duration of the lease is for a period of 11 months commencing from 1st day and ended in the last day of English Calendar Month. There will be an escalation of 5% on every year. Plaintiff has issued legal notice on 14-8-2007 terminating the tenancy and for vacant possession of the suit 17 O.S.No.5013/2009 schedule property. The defendant has failed to comply the demand of the legal notice. Hence, plaintiff has filed suit in O.S.NO.8467/2007 for ejectment and recovery of arrears of rent from July 2007 to 30th October 2007 a sum of Rs.2,20,800/-, which came to be decreed on 19- 2-2008. Suit of the plaintiff is decreed with costs, the defendant is directed to quit and vacate and deliver the vacant possession of the suit schedule premises to the plaintiff forthwith. The defendant is also directed to pay arrears of rent from August 2007 to October 2007 amounting to Rs.1,66,698/-.
10. The plaintiff further submits that though Hon'ble Court was passed judgment and decree on 19-12-2008, defendant not handed over the vacant possession of the suit schedule property along with more than 105 keys. Thereafter, the plaintiff was forced to file Execution Petition No.412/2009(before CCH-27) to take possession of the suit schedule premises and also for the recovery 18 O.S.No.5013/2009 of arrears of rent from August 2007 till October 2007 with costs, totally amounting to Rs.2,28,149/-. In Ex.Petition the plaintiff was able to get possession of the suit schedule property by breaking open the door on 31-3-2009 and recovery of amount. Now the plaintiff has filed this suit for the recovery of rent from October 2007 to 31-3-2009 i.e. 55,556/- x 17 months + 5,000/- (legal notice charges) = 9,49,452/-, out of which less rent advance Rs.4,80,000/- = Rs.4,69,452/-. Hence, prayed to decree the suit directing the defendant to pay the arrears of rent from November 2007 till 31-3-2009 a sum of Rs.4,69,452/- as stated above.
11. Pursuant to the suit summons, defendant appeared and filed her written statement and prays to dismiss the suit in limine. The defendant has contended that defendant is the managing partner of the firm M/s.Airlinks International constituted under the Indian Partnership Act undertaking business of providing accommodation for 19 O.S.No.5013/2009 its staff, partners, corporate clients and guests. M/s.Airlinks International made invitation to residential building owners in general that they need of 6 bed room residential apartment. The plaintiff came forward through his broker one Sri.Vijaya, and after final negotiation, lease agreement was registered in the name of partnership firm M/s.Airlinks International, admitted the contents of the lease agreement and has paid rent advance of Rs.4,80,000/- and after expending i.e. more than Rs.15 lakhs, they have made interior decoration for about 10 months for upgrading the suit schedule premises. This defendant denied all other allegations made in the plaint. The dispute arose when the defendant has deducted TDS amount from the rent amount and deposited with the income tax department as per the direction of the Income Tax Deparment. Thereafter, the plaintiff has terminated the lease agreement by issuing legal notice dtd.14-8-2007 and 20 O.S.No.5013/2009 filed O.S.No.846/2007 for ejectment and recovery of arrears of rent from July 2007 to October 2007. Thereafter, this defendant has sent letter to the plaintiff for the termination of the lease and rental agreement on 10-1-2008, terminating the lease and requested the plaintiff to return the advance amount as per the terms and conditions stipulated, but plaintiff failed to reply the same. Therefore, question of payment of arrears of rent does not arise at all. Hence, prayed to dismiss the suit. Thereafter, defendant has sent letter to the plaintiff dtd.19-2-2008, 25-9-2008, 4-10-2008, 6-10-2008 with regard to handing over of the keys of the suit schedule premises to the police on 6-10-2008. The plaintiff himself has filed memo in O.S.No.8467/2007 seeking to give up the relief of ejectment of the suit schedule property as he had already obtained the possession and plaintiff has played fraud in the Execution Court, succeeded in getting 21 O.S.No.5013/2009 possession of the suit schedule property from the process of the Court only with an malafide intention to appropriate the security deposit of M/s.Airlinks International with the malafide intention to make illegal gain of money. Hence, prays to dismiss the suit with exemplary cost and prays to direct the plaintiff to pay the advance money of Rs.4,80,000/-.
12. On the basis of the rival contentions taken up by the respective parties, issue No.1 and 2 have been framed placing the burden on the plaintiff to prove that defendant is liable to pay rent of total 17 months from November 2007 to March 2009 at the rate of Rs.55,556/- p.m. and entitled to recover Rs.4,69,522/- after deducting rent advance of Rs.4,80,000/-. Additional issue No.1 has been framed placing the burden on the defendant to prove whether plaintiff is liable to pay Rs.4,80,000/- being rent advance taken as on the date of induction of the tenancy. In order to 22 O.S.No.5013/2009 substantiate his claim, plaintiff has entered into the witness box, and filed his affidavit evidence under Order 18 Rule 4 of C.P.C and reiterated the averments made in the pliant and deposed with regard to the judgment and decree in O.S.No.8467/2007 dtd.19-12-2008 and Ex.P.No.412/2009 on its final order and got marked as many as 16 documents as per Ex.P.1 to P.16 and tried to support the case of the plaintiff. In order to rebut the case of the plaintiff, SPA holder of the defendant has entered into witness box, filed her affidavit evidence as per D.W.1 and got examined as many as 36 documents as per Ex.D.1 to D.36 and got examined two witnesses by name Abdul Hameed, the then Inspector of Police working at Koramangala jurisdiction and one Venkaiah, Court Ameena, the then working as Court Ameena and closed her side.
13. It is the admitted fact by both the parties that the plaintiff is the landlord and M/s.Airlinks International, 23 O.S.No.5013/2009 Partnership firm represented by managing director H.Suryaprakash is the tenant. The rental agreement was executed as per Ex.D.1 on 1-4-2004 and agreed to pay rent of Rs.48,000/- p.m. with an escalation of 5% every year on existing rent of previous year and defendant has paid rent advance of Rs.4,80,000/-. Duration of the lease as per the plaintiff for a period of 11 months commencing from 1st day of English calendar month and ended on the last day of same month and it is also agreed that previous months rent is to be paid on or before 5th of every month. Plaintiff has issued legal notice on 28-7- 2007 terminating the tenancy of defendant and called upon to handover the vacant possession of the suit schedule property and filing of O.S.No.8467/2007 for ejectment and recovery of arrears of rent from July 2007 to October 2007 for a sum of Rs.2,20,800/- which came to be decreed on 19-12-2008 and filing of Ex.Pt.412/2009 which ended on 31-12-2009 and 24 O.S.No.5013/2009 defendant has paid arrears of rent already paid as per the decree.
14. Now the disputed question is whether plaintiff is entitled for arrears of rent of Rs.55,556/- p.m. for a period of 17 months as prayed for in this suit or whether plaintiff is liable to repay the rent advance of Rs.4,80,000/- as prayed for in the counter claim. As per the Transfer of Property Act, 1882, Sec.105, a lease of immovable property is a transfer of a right to enjoy such property made for certain time in consideration of price paid or promised or of money to the transferor by the transferee who accept the transfer. Transferor is called lessor, transferee is called lessee. The price is called the premium and the money so rendered is called the rent. In the other words, rent is defined as consideration for the lease. When, the relationship of landlord and tenant is terminated, it would be incongruous to receive any further consideration (rent), 25 O.S.No.5013/2009 except when the law expressly enables such receipt. Whether the relationship of landlord and tenant exists between the parties, depends on the fact whether the parties intended to create and continue a tenancy. The intention has to be gathered from the facts and circumstances of the case. Even acceptance of rent is not decisive to decide the relationship of landlord and tenant. As per the plaintiff, defendant is in default of payment of rent from July 2007 to October 2007, he had issued legal notice as per Ex.D.2 on 14-8-2007 terminating the tenancy. The Court has considered the same in O.S.NO.8467/2007 and decreed the suit, directed the defendant to pay arrears of rent from August to October amounting to Rs.1,66,698/-. Hence, the relationship of plaintiff and defendant as landlord and tenant is terminated on October 2007 itself. Now, on the basis of the said judgment, the plaintiff has claimed the arrears of rent of 17 months which cannot 26 O.S.No.5013/2009 be permitted under the law. The plaintiff ought to have claimed damages or mesne profit for further period. Moreover, there is no pleading in the plaint claiming either damages or mesne profit. Therefore, there is no direction in the said judgment of O.S.No.8467/2007 to pay either damages or mesne profit. Hence, present suit for arrears of rent as claimed is not maintainable.
15. On careful perusal of the material evidence, both oral and documentary placed on record, it is quite clear that Counsel for the plaintiff has issued legal notice on the default in payment of rent for the month of July 2007 onwards mentioned and filed O.S.No.8467/2007 for the ejectment and recovery of arrears of rent from July 2007 to October 2007. However, defendant has sent cheque to the plaintiff with covering letters through registered post dtd.6-8-2007, 7-9-2007, 6-10-2007 and 6-11-2010 along with the cheque drawn on Vijaya Bank for Rs.55,556/- each towards the payment of rent for 27 O.S.No.5013/2009 the said months. Therefore, it cannot be said that defendant has committed default in payment of rent as per the agreement. The defendant has deposed that the dispute arose when defendant asked the plaintiff for IT details to make TDS as per the provisions made by the Government of India in its financial Act that all the payments made which exceeds certain limits of tax to deduct tax at source by way of TDS and that has to be deposited with the Income Tax department. The plaintiff has not furnished any information. Then arose difference of opinion between plaintiff and defendant. Thereafter, the plaintiff got issued legal notice to terminate the tenancy and filed this suit in O.S.No.8467/2007. The plaintiff started harassing the defendant. Ex.D.12 and 13 discloses the harassment of the plaintiff to the defendant. Ex.D.12 is the notice dtd.26-12-2007 issued by the plaintiff through his advocate to the Asst.Executive Engineer S/4 Sub- 28 O.S.No.5013/2009 division, BESCOM, Koramangala and Asst.Executive Engineer O&M Unit, Koramangala, directed to disconnect electricity supply to the premises of his tenant, electricity meter Nos.45EH36625, 45EH36626, 45EH36627 and 45EH36628, mentioning the O.S.No.8467/2007 and called upon the BESCOM forthwith collect all electricity mentioned charges from the tenant every month properly in event of non-payment or part of payment the same to forthwith disconnect the electricity supply. Ex.D.13 is the letter dtd.07-1-2008 written by the Krishna Cables, Koramangala to Surya Prakash with regard to the realignment of TV Cables, wherein cable operator and owner of the cable has mentioned that your building owner have disconnected the TV cables which was connected to your two apartment without our permission, when the cable operator came to the building with new cable for realignment, building owner was present at that time, did 29 O.S.No.5013/2009 not allow them to do their job. These two incidences are the best examples for the harassment given by the landlord to the tenant. Thereafter, the plaintiff has issued a letter dtd.10-1-2008 under certificate of posting as per Ex.D14 to the correct address mentioned in the lease agreement as per Ex.D1 and also plaint in O.S.No.8467/2007 referring all the incidents against the clauses of the rent agreement and harassments of the plaintiff in that letter and finally the managing direction of the defendant firm expressed their intention to give the peaceful possession of the property immediately on receipt of the said rental deposit amount. But, the plaintiff has not replied for the same. For better appreciation I cull out the same.
"In view of the facts stated in the preceding paras, we now give you the termination notice of the Rental Agreement w.e.f.1-1-2008 and please refund the balance rent security deposit amount of Rs.2,02,170/- after adjusting the unpaid rents (due to hour refusal to accept) for the month of July, August, September, November and December, 2007 (Rs.55,566 x 5 months) Rs.2,77,830/-.30 O.S.No.5013/2009
Please note that we intent to give the peaceful possession of your property; immediately on receipt of the said rental deposit amount of Rs.2,02,170/-."
16. Thereafter, the Managing Director of the defendant firm has sent letter dtd.19-2-2008 as per Ex.D.16reminding the plaintiff about the non-receipt of balance rent security deposit of Rs.2,02,170/- and mentioned in the said notice, which runs as under:
"Please note that you are not supposed to claim or adjust any rent w.e.f. January, 2008 from our rent security deposit amount since we have already terminated the rental agreement. We once again request you to pay back the rent deposit immediately and permit us to remove our assets and belongings without any further loss of time".
17. The Managing Director of the defendant firm addressed another letter dtd.28-3-2008 as per Ex.D.18 reminding the plaintiff about the non-receipt of balance rent security deposit of Rs.2,02,170/- and mentioned their request in the said letter, which runs as under:
" We are at a great shock to know that our Landlord, Mr.Abdul Hameed is eyeing for all our expensive and high quality assets as detailed in our letter dtd.19-2-2008. You may please be well informed that the firm is 31 O.S.No.5013/2009 not interested to sell its assets worth approximately 15 lakhs. We are very much interest to remove all our belongings at the earliest which you account extract objecting all the time about the removal of our assets.
We once again request you to pay back the balance rent security deposit of Rs.2,02,170/- immediately and permit us to remove our assets and belongings without any further loss of time in order to avoid unnecessary unpleasantness."
18. The Managing Director of the defendant firm addressed another letter dtd.30-4-2008 as per Ex.D.20 through RPAD reminding the plaintiff about the non-payment of balance rent security deposit of Rs.2,02,170/- and not permitting them to remove their assets, mentioned their request in the said letter, which runs as under:
" All the time, we were not allowed to remove our materials worth more than Rs.15 lakhs which is kept nth4 above said premises. Every time we want to remove the materials, your watchman used to close the staircase iron doors and used to tell us not to move the goods from the premises. The reasons for not permitting us to remove our asserts with effect from January 2008 are best known to you only. For your kind information, no body can stop 32 O.S.No.5013/2009 legally or morally to remove our Asses from the said premises.
You have filed a case against us to vacate the premises but you are not allowing us to remove our assets/goods from the said premises from January 2008 onwards. This is quit evident from few of your following actions:-
(1) Deliberately you have changed the lock of the terrace without providing us the key so that no split Air conditioners units can be removed and no clothes can be dried on the Terrace which was a nominated place provided to us all these years.
(2) Disconnecting so many facilities with effect from 19th December 2007 including Electricity, TV cable twice and instructing the Cable provider not to connect the cables n order to chase all our guests and vacate us and cause heavy damage to us financially.
(3) You have also parked your huge vehicles without our permission, obstructing our two parking place which was also included in our rent as per the agreement.
From your above deliberate act, it is abundantly clear that you wanted to adjust all our rent deposit of Rs.4,80,000/- which was kept with you as ten months rent deposit at the time of occupying the place. Please note that no rent can be claimed or adjusted by you from our rent deposit with effect from January 2008 due to your 33 O.S.No.5013/2009 various deliberate actions of not allowing to remove our assets in spite of our repeated requests in addition to causing harassment to us, a few of which has been stated in the preceding paragraphs.
On 27th April 2008 morning at 9.30 a.m., when we went again to remove our assets/goods along with few loaders and vehicle, your watchman immediately locked the staircase iron door and locked us inside the premises along with all the loaders and driver of the vehicle. When we questioned your watchman, he acted rudely and replied arrogantly saying that he is acting as per your instruction. Later on, when your son Mr.Majid came to the premises, the door was opened after few hours causing great humiliation, harassment and mental agony. When we talked to him about all these matters, he apologized and promised that he would resolve the issues immediately and would give us a call later on the same day before evening but, he did not come back to us till the time of writing this letter.
Further he has also mentioned that they were due about Rs.40,000/-, but we disagreed of the said amount and we mentioned tat your can not adjust our rent deposit with effect from January 2008 since you are not allowing us to remove our assets/goods from the building. In addition to this, you have also voluntarily disconnected and withdrawn all the faculties of the two units (1st and 2nd floor of the building) provided to us as per the 34 O.S.No.5013/2009 agreement with effect from 19th December 2007.
You may also please note that all partners of the firm are belonging to the community of scheduled caste and hence, we request you to desist harassing us or committing any atrocities on us anymore.
We request you once again to allow us to remove our goods immediately without causing any harassment/tension to us or else we will be forced to take appropriate action which we did not want to take hitherto, due to the fact that we have been maintaining a very good relationship with you, at lease from our side.
Thanking you, Yours faithfully, For Air Links International., Sd/-, H.Surya Prakash, Managing Director. "
19. The Managing Director of the defendant firm addressed another letter dtd.28-5-2008 as per Ex.D.22 through RPAD reminding the plaintiff about the non-receipt of balance rent security deposit of Rs.2,02,170/- with interest at the rate of 24% p.a.and mentioned their request in the said letter, which runs as under: 35 O.S.No.5013/2009
" One of the previous occasions, while we were removing our assets ad belonging which were again objected by you and your people, for the best reasons well known to you. Your son, Mr.Majid had promised tat he would definitely help us and resolve the matter latest before the same day evening (i.e. the day on which again we wanted to remove our assets ad belonging) and would allow us to take out the materials form your premises. You are aware that we are always unnecessarily incurring heavy expenses towards the payment for lorry/tempo and labour charges but every time it has gone waste and incurred unnecessary loss. Further, we are very sorry to inform you that we have not heard anything from you or from your son Mr.Majid, inspite of several letters, till the time of writing this letter, with regard to the refund of our rent security deposit and or removal of our assets, for the last five months.
Since you have already put the matter in the court to vacate the premises, you should be aware that you have no authority to object regarding the removal and or taking of our assets to the other premises, where we have already made our official residence-cum guest house for our Company's purpose. Hence, you are advised to desist from taking the law into your hand and we again request you immediately permit us to remove our belongings and take the same to the other guest house"36 O.S.No.5013/2009
Now, we would like to call upon you to this notice to refund the balance of rent security deposit amount of Rs.2,02,170/- along with the interest at the rate of 24% p.a. on receipt of this notice or otherwise, we will take appropriate steps to protect our interest for recovery of the aforesaid rent security deposit amount before the appropriate court of law and also hold the premises until such period of recovery or we may at our liberty to sublet the said premises at your own risk, cost and consequences.
Please note Thanking you, Yours faithfully, For Air Links International., Sd/-, H.Surya Prakash, Managing Director. "
20. The Managing Director of the defendant firm addressed another letter dtd.9-6-2008 as per Ex.D.24 through RPAD to the advocate for the plaintiff Mr.H.P.Leeladhar about the non-receipt of balance rent security deposit of Rs.2,02,170/- and mentioned their request in the said letter, which runs as under:
"Please note that if this kind of baseless threats continuous and talking ill against our 37 O.S.No.5013/2009 organization and or its partners, we have no other alternative but to take appropriate legal and necessary police action against your client. This fact would also be brought to the notice of the home ministry as well as to the top brass of the police department. Hence we advise your client to desist from involving in such illegal activities, in order to avoid any such unpleasantness and we hope that a better sense will prevail upon them. Your client should be aware that once they filed a case for eviction from the court of law, or client cannot hold our assets worth approximately Rs.15 lakhs in the said premises. If any rent or any other money is due, it is the court who has to decide the amount due and payable by us, if any.
Please also note that we require 15 days time to reply to your notice through or advocate. This is for your kind information.
Thanking you, Yours faithfully, For Air Links International., Sd/-, H.Surya Prakash, Managing Director. "
21. The Managing Director of the defendant firm addressed another letter to the Circle Inspector of Police, Law and Order, Koramangala on 25-9-2008 as per Ex.D.26 through RPAD mentioning all harassments and criminal 38 O.S.No.5013/2009 atrocities and the act of the plaintiff about the non- payment of balance rent security deposit of Rs.2,02,170/- and non-allowing the defendants from taking their assets and belongings from the above said premises, and sought for police protection to remove their assets and belongings and their security staff vehicles.
22. Ex.D.28 is the complaint dtd.26-9-2008 through RPAD lodged by Yeshwanth Singh, Security Person of the defendant firm against Sri.Joshi, Watchman and Security Person of the plaintiff to the Circle Inspector of Police, Law and Order, Koramangala.
23. The Managing Director of the defendant firm addressed another letter dtd.27-9-2008 as per Ex.D.30 through RPAD to the plaintiff about the non-receipt of balance rent security deposit of Rs.2,02,170/- and confirmed the receipt of assets and belongings on 26-9-2008 by the 39 O.S.No.5013/2009 defendant with the help and supervision of police authorities and mentioned their request in the said letter, which runs as under:
"We hereby confirm the receipt of our assets and belongings on 26-9-2008 with the help and supervision of the police authorities, which was illegally confined by you even after we have terminated the rental agreement we.f. January 2008. In this connection, your attention is invited to our various letters dtd.10-1- 2008, 19-2-2008, 28-3-2008, 30-4-2008 28-5-2008.
You are hereby instructed to refund our Rental security deposit of Rs.2,02,170/-
out of the rental deposit of Rs.4,80,000/- within 3 days from the date of receipt of this letter. "
24. On the same day i.e.27-9-2008, the managing partner of defendant firm has wrote a letter as per Ex.D32 through RPAD to the Circle Inspector of Police, Law & Order, Koramangala with regard to the receipt of the assets and belongings of the defendant and expressed gratitude, kind gesture and timely help by the police in removing their belongings from the suit schedule property and 40 O.S.No.5013/2009 their intention to handover the key to the CPI, Koramangala. For better appreciation, I cull out the same as under:
"We acknowledge the receipt of our assets and belongings which were illegally confined w.e.f. January 2008 by Sri.Abdul Hameed in the premises referred herein above under the supervision of 3 police personnel deputed by you. We are highly thankful and grateful to you for your kind gesture and timely help and support extended to us by your department.
We would like to inform you that due to their atrocious behaviour we have absolutely no interest to meet them and hence, we will handover the keys to your office. Plese acknowledge the receipt of the keys and you may kindly handover the same to them under acknowledgement."
Thanking you, Yours faithfully, For Air Links International., Sd/-, H.Surya Prakash, Managing Director. "
25. And defendant firm has handed over the key to the CPI, Koramangala and Sub-Inspector of Police, Koramangala 41 O.S.No.5013/2009 Police Station has received the same and acknowledged the receipt on 4-10-2008. The defendant prayed to handover the key to the Mr.Abdul Hameed, plaintiff. For better appreciation, I cull out the same as under:
"With reference to the above subject, please find enclosed, 105 keys pertaining to the property of Mr.Abdul Hameed bearing No.633,1st and 2nd floor, 7th A Main, 6th Block, Koramangala, Bengaluru-560 095, which the firm had taken on rent.
Please acknowledge the receipt of the keys and hand over the same to Mr.Abdul Hameed.
Thanking you, Yours faithfully, For Air Links International., Sd/-, Authorised Signatory Encl: 105 keys Received on 04/10/08.
Sd/-, Sub-Inspector of Police, Koramangala Police Station, Bangalore-560 095.42 O.S.No.5013/2009
26. Thereafter, defendant has wrote a letter on 6-10-2008 through RPAD as per Ex.D35 to the plaintiff with regard to the handing over of the key with the police and the endorsement made by the police by enclosing the acknowledgement issued by the police station for the reference of the plaintiff. But, for all these correspondences made by the defendant firm with regard to the payment of rent as well as request made to the plaintiff about the handing over of the vacant possession of the suit schedule property & keys, and request made to return the security deposit amount after deducting the arrears of rent, the plaintiff has not replied at all. The plaintiff not came forward to receive the keys of the suit schedule property and not permitted the defendants to shift their belongings i.e. furniture and fixtures of Rs.15 lakhs from the suit schedule property and continued the proceedings of O.S.No.8467/2007 with malafide intention to absorb the 43 O.S.No.5013/2009 rent advance of Rs.4,80,000/-, not allowed the defendant to vacate the suit schedule premises.
27. It is the case of the defendant that under the circumstances mentioned above, defendant firm has shifted and removed their furnitures from the suit schedule premises with the assistance of the Koramangala police. After removing the furnitures with the help of the police, keys pertaining to suit schedule premises have been handed over to the Koramangala Police Inspector and handed over the acknowledgement for having received the keys and plaintiff has received the keys from the police inspector Koramangala and thereafter, the plaintiff filed memo in the ejectment suit in O.S.No.8467/2007 giving up the prayer of ejectment. To prove these aspects defendant got examined one Syed Tabriz, Inspector of Police as D.W.2, who deposed about taking away of the furnitures by the defendant in the presence of the plaintiff and handing 44 O.S.No.5013/2009 over of the keys in the hands of the police since the plaintiff has refused to take the key from the hands of the defendant. Thereafter, the D.W.2 Inspector handed over the keys to the plaintiff on 4-10-2008. D.W.2 deposed in detail about the same and admitted the endorsement made in Ex.D.34. In his cross-examination D.W.2 has admitted the same.
"¢B4-10-2008gÀAzÀÄ £Á£ÀÄ ¥ÀæwªÁ¢¬ÄAzÀ ¥Àqz É ÀÄPÉÆAqÉ ©ÃUÀzÀ PÉÊAiÀÄ£ÀÄß ªÁ¢UÉ PÉÆnÖzÉÃÝ £ÀÄ. ¤.r.34gÀrAiÀÄ°è ©ÃUÀzÀ PÉÊAiÀÄ£ÀÄß ¥ÀæwªÁ¢ £À£ÀUÉ PÉÆnÖzÀgÝ ÀÄ CAzÀgÉ ¤d. ¸ÁQë ºÉüÀĪÀÅzÃÉ £ÉAzÀgÉ ©ÃUÀzÀ PÉÊAiÀÄ£ÀÄß £ÀAvÀgÀ £Á£ÀÄ ªÁ¢UÉ PÉÆnÖgÀĪÀ£ÀÄ. ¤.r.34gÀ°è ¹éÃPÀj¹zÀ vÁjÃRÄ04-10-2008 CAvÀ £ÀªÀÄÆzÁVgÀÄvÀz Û É CAzÀgÉ ªÀÄvÀÄÛ CzÀ£ÀÄß ©lÄÖ ¨ÉÃgÁåªÀ vÁjÃRÄ CzÀgÀ°è PÁtô¹gÀĪÀÅ¢®è CAzÀgÉ ¤d. £Á£ÀÄ ªÁ¢UÉ CzÉà ¢£À ©ÃUÀzÀ PÉÊAiÀÄ£ÀÄß PÉÆnÖgÀĪɣÀÄ. ¥ÀæwªÁ¢AiÀÄgÀÄ ¢B26-9-2008gÀAzÀÄ ¸ÁªÀiÁ£ÀÄUÀ¼£À ÀÄß vÀUz É ÀÄPÉÆAqÀÄ ºÉÆÃVgÀĪÀÅzÀÄ. ¥ÀæwªÁ¢ ¢B04-10-2008gÀAzÀÄ ©ÃUÀzÀ PÉÊAiÀÄ£ÀÄß vÀAzÀÄ PÉÆlÖgÀÄ. ¸ÁQë ªÀÄÄAzÀĪÀgz É ÀÄ ºÉüÀĪÀÅzÃÉ £ÉAzÀgÉ ¢B26-9-2008 gÀAzÀÄ ªÁ¢AiÀÄÄ ©ÃUÀzÀ PÉÊ vÀUz É ÀÄPÉƼÀî°®è ªÀÄvÀÄÛ oÁuÉUÉ §AzÀÄ CzÀ£ÀÄß vÀUzÉ ÀÄPÉƼÀÄîvÉÃÛ ªÉ CAvÀ ºÉýzÀgÀÄ".
28. On careful perusal of the entire evidence both oral and documentary, it is quite clear that plaintiff has received the key from the police on 4-10-2008 itself. Thereafter the plaintiff has filed memo on 28-10-2008, the plaintiff restricted the prayer only regarding arrears of rent and 45 O.S.No.5013/2009 also handing over of the keys in respect of the suit schedule property and other relief and not pressed the relief of ejectment. But, in this regard, there is no amendment of pleading for introducing new prayer of handing over of the keys. Hence, there is no pleading with regard to the handing over of the keys and further plaintiff proceeded with the case and this Court has decreed the suit on 19th December 2008 and made an observation that "handing over of the keys of the schedule premises is not lawful delivery of possession to the plaintiff" and directed the defendant to quit, vacate and deliver the possession of the suit schedule premises to the plaintiff forthwith and directed to pay arrears of rent from August 2007 to October 2007. On the basis of this observation, the plaintiff has filed this suit for recovery of rent. However, the plaintiff in his Examination-in-chief has admitted with regard to the suggestions made by the learned Counsel for the 46 O.S.No.5013/2009 plaintiff with regard to the disproving the alleged allegation of default and payment of rent and also writing of letter requesting the plaintiff to allow the defendant to remove their furniture and their intention to handover of the key of the house.
" dįÉÊ 2007 gÀªgÀ UÉ É ¥ÀæwªÁ¢AiÀÄgÀÄ ¸ÀjAiÀiÁV ¨ÁrUÀAÉ iÀÄ£ÀÄß PÉÆqÀÄvÁÛ §A¢zÁØgAÉ zÀgÉ ¸Àj. ... ¤±Á£É r- 14gÀ ¥ÀæPÁgÀ ¥ÀæwªÁ¢AiÀÄgÀÄ £ÀªÀÄUÉ ¥ÀvÀæ §gÉ¢zÀgÝ ÀÄ CAzÀgÀ É ¸Àj. dįÉÊ, DUÀ¸ïÖ ºÁUÀÆ ¸É¥ÉÖA§gï 2007 gÀ ¨ÁrUÉAiÀÄ£ÀÄß £ÁªÀÅ PÉüÀ®Ä ºÉÆÃUÀzÃÉ EzÁÝUÀ ¥ÀæwªÁ¢AiÀÄgÀÄ ¸ÀzjÀ ¨ÁrUÉ ºÀtªÀ£ÀÄß ZÉPï ªÀÄÄSÁAvÀgÀ ¥ÉÇøïÖ ªÀÄÄSÁAvÀgÀ PÀ¼ÀÄ»¹zÀgÝ ÀÄ CAzÀgÉ EgÀ§ºÀÄzÀÄ ¤±Á£É r- 4 jAzÀ r-11gÀ ¥ÀæPÁgÀ ¥ÀæwªÁ¢AiÀÄgÀÄ ¨ÁrUÉ ºÀtzÀ ZÀPÉ ïUÀ¼£À ÀÄß ¥ÀvÀæU¼À ÉÆA¢UÉ £ÀªÀÄUÉ PÀ¼ÀÄ»¹ PÉÆnÖzÀgÝ ÀÄ CAzÀgÉ ¸Àj. ....... ¤±Á£ÀÉ r-12 gÀAvÉ £ÀªÀÄä ªÀQîgÀ ªÀÄÄSÁAvÀgÀ ¨É¸ÁÌA EªÀjUÉ £ÉÆÃnøï PÀ¼ÀÄ»¹zÉÃÝ £ÀÄ CAzÀgÉ ¸Àj .... ¤±Á£É r-14 gÀAvÉ ¥ÀæwªÁ¢AiÀÄgÀÄ £À£UÀ É MAzÀÄ ¥ÀvÀæ PÀ¼ÀÄ»¹ PÉÆnÖzÀgÝ ÀÄ CAzÀgÉ ¸Àj. . . . . PÁgÀt £ÀªÀÄUÉ ¨ÁrUÉ ¨ÁQ §gÀĪÀÅzÀÄ EvÀÄÛ. ¢B1-1-2008 jAzÀ ¥ÀæwªÁ¢AiÀÄgÀÄ £ÀªÀÄUÉ ¨ÁrUÉ PÀÉÆqÀ¨ÃÉ PÁV®è CAzÀgÉ ¸ÀjAiÀÄ® ....... ¥À¤s ðZÀgïUÀ¼£À ÀÄß vÀUz É ÀÄPÉÆAqÀÄ ºÉÆÃUÀ®Ä ¥ÀæwªÁ¢AiÀÄjUÉ £ÁªÀÅ vÀPgÀ ÁgÀÄ ªÀiÁrzÉÃÝ ªÀÅ CAzÀgÉ ¸ÀjAiÀÄ®è. ¤±Á£É r- 18, r-20, r-22 gÀAvÉ ¥ÀæwªÁ¢AiÀÄgÀÄ £À£UÀ É ¥ÀvÀæU¼À £À ÀÄß §gÉ¢zÀgÝ ÀÄ CAzÀgÉ ¸Àj. ¤±Á£É r-21 ºÁUÀÆ r-23 £À£UÀ É ¥ÀvÀæUÀ¼ÀÄ ªÀÄÄnÖzÀ §UÉÎ ¹éÃPÀÈw ¥ÀvÀæU¼À ÀÄ CAzÀgÉ ¸Àj. ¤±Á£É r-24 gÀ ¥ÀæPÁgÀ ¥ÀæwªÁ¢AiÀÄÄ £ÀªÀÄä ªÀQÄîjUÉ ¥ÀvÀæ §gÉ¢zÀÝgÀÄ CAzÀgÉ ¸Àj....... ¤±Á£É ¦-3gÀ ¥ÀæPÁgÀ N J¸ï £ÀAB8467/2007 F zÁªÉAiÀÄ°è £ÁªÉà ªÉĪÉÆà ºÁQzÉÃÝ ªÀÅ CAzÀgÉ ¸Àj....."
29. On careful perusal of the above culled out portion of the deposition of P.W.1 he admits all the suggestions made by the learned Counsel for the defendant with regard to the correspondences made by defendant with regard to 47 O.S.No.5013/2009 the handing over of the keys, but plaintiff has not replied or responded for the same. This discloses the malafide intention of the plaintiff to drag the proceedings without taking the possession of the suit schedule property by allowing the defendant to remove their furnitures and fixtures worth Rs.15 lakhs. This fact discloses that plaintiff has acted malafidely. Hence, plaintiff is not entitled for claim as made in the suit.
30. As per the plaintiff, in all there were 105 keys to the alleged suit schedule property, defendant has to handover all the 105 keys at the time of vacating the suit schedule property. Defendant has expressly made her intention clear in her letter Ex.D.14, she made a notice that she has terminated the rental agreement with effect from 1-1-2008 and prayed to refund the security deposit after adjusting the rent for the month of July to December 2007 (i.e. Rs.55,566/- x 5 months = 48 O.S.No.5013/2009 2,77,830/-). She has also expressed her intention to give peaceful possession of the suit schedule property. Thereafter, the defendant has wrote a letter almost every month expressing their intention to give peaceful possession of the suit schedule property and prayed to return the balance amount of the security deposit, but the plaintiff has not replied the same and continued the proceedings of the suit as well as Execution proceedings. Defendant has made correspondences with regard to the handing over of the keys after shifting their furnitures with the aid of the police from the suit schedule property and handed over the keys to the Circle Inspector of Police, Koramangala on 26-9-2008 and informed the plaintiff about the same. Sub-Inspector of police, Koramangala has acknowledged the same on 4-10- 2008. This fact has been informed to the plaintiff also. P.W.2 Syed Tabriz Inspector of Police has also deposed before this Court about the handing over of the keys to 49 O.S.No.5013/2009 the plaintiff and he has handed over the keys on 4-10- 2008. This discloses that keys of the suit schedule property were handed over by the Koramangala Police to the plaintiff on 4-10-2008 itself. This is the taking of actual possession of the suit schedule property by the plaintiff. No doubt, this might be procedurally wrong, to that effect Court has observed that handing over of key of the schedule premises to the plaintiff is not lawful delivery of possession to the plaintiff, but it cannot be said that plaintiff has not taken the actual possession of the suit schedule property. At this juncture, it is to be noted that under the guise of lawful delivery of possession or unlawful delivery of possession, handing over of the actual possession of the suit schedule property to the plaintiff cannot be ruled out. But, on the basis of the observation made by the Court, plaintiff continued the proceedings and got order from the Court for breaking open of the Keys. As per the order of the 50 O.S.No.5013/2009 Court, Venkaiah, the Court Ameena had been to the suit schedule property, the Court Ameena and the plaintiff had been to the spot and broken the lock of the main door only. This fact has also been admitted by the plaintiff in his cross-examination. For better appreciation I cull out the same;
" C«ÄãÁ PÀq¬ É ÄAzÀÀ ªÉÆzÀ®£Éà ªÀĺÀrAiÀÄ ºÁUÀÆ JgÀq£À ÉAiÀÄ ªÀĺÀrAiÀÄ ªÀÄÄRåzÀÁégÀU¼À À ©ÃUÀ vÉU¹É zɪÀÅ. ©ÃUÀ vÀUÉ zÉ ªÀ gÀ ÀÄ qÀÆå¦èPÃÉ mï Qà ªÀiÁrPÉÆqÀ°®è. ¸ÀzjÀ ©ÃUÀU¼À ÀÄ EAlgï¯ÁPï DVzÀݪÀÅ. zÁªÁ D¹ÛUÉ ¸ÀA§AzÀs¥l À ÖAvÉ MlÄÖ 105 QÃUÀ½zÀªÝ ÀÅ. ªÀÄÄRåzÁégÀU¼À À ©ÃUÀ ªÀiÁvÀæ ºÉÆqÉzÀÄ vÉUz É ªÉ ÀÅ G½zÀ ©ÃUÀU¼À £À ÀÄß ºÉÆqÀzÉ ÀÄ vÉUAÉ iÀÄ°®è. 105 QÃUÀ¼ÀÄ £ÀªÀÄä ºÀwgÛ À EzÀª Ý ÀÅ CAzÀgÉ ¸ÀjAiÀÄ®è."
31. On careful perusal of the above culled out portion, it is quite clear that on the alleged date out of 105 keys main door lock only break open, remaining 104 keys have not been broke open. It is not the case of the plaintiff also that all the 105 keys have been broken on that day. It is also not the case of the plaintiff that the defendant has handed over those keys to the plaintiff. Then, how, those remaining keys have been opened without defendant giving those keys to the plaintiff. Hence, it is quite clear that plaintiff has received all the 105 keys 51 O.S.No.5013/2009 from the police on that day itself, the plaintiff has make believe that with the help of the Court Ameena that he has taken the possession from the Court Ameena on the alleged date. In this way, though the plaintiff has received all the keys from the police, he abused the process of law and created all the documents and filed this false case for recovery of rent of 17 months from July 2007 to till the date of disposal of Ex.P.412/2009.
32. At this juncture, it is to be noted that absolutely there is no order with regard to the payment of arrears of rent for 17 months as prayed in this case and the Court has directed the defendant to pay arrears of rent from August 2007 to October 2007. However, the defendant has issued notice as per Ex.D14 terminating the tenancy from 1-1-2008. Hence, the defendant is liable to pay arrears of rent up to December 2007 i.e. for 5 months at the rate of Rs.55,566/- x 5 = 2,77,830/-, after deducting the same, the defendant is entitled for refund 52 O.S.No.5013/2009 of rental deposit amount of Rs.2,02,170/-. However, on careful perusal of the certified copy of the order sheet of E.P.412/2009 as per Ex.P.7 pertaining to execution petition, it discloses that on 16-4-2010 JDR has paid Rs.25,000/- by way of DD towards the payment of arrears of rent. On careful perusal of the certified copy of the attachment of movables warrant issued by the Court Hall No.27 dtd.31-3-2011 on the overleaf of the said warrant, there was an endorsement that the wife of the JDR Smt.Chetana K. has issued cheque No.025182 dtd.29-3-2011 for Rs.25,000/- and cheque No.025183 dtd.20-4-2011 for Rs.25,000/- drawn on Federal Bank Ltd., Basavanagudi, Bengaluru. Subject to realization of the cheque, the plaintiff (DHR) has received the cheque on 29-3-2011 and endorsed his signature on the same attachment of movables warrant. The Central Process Nazir has endorsed on 30-3-2011. On careful perusal of the certified copy of the attachment of movables 53 O.S.No.5013/2009 warrant issued by the Court Hall No.27 dtd.16-8-2011 on the overleaf of the said warrant, there is an endorsement that the decree holder Abdul Hammed received two cheques, each cheque Rs.50,000/- bearing No.790243 and 790244 dtd.10th October 2011 and 10th November 2011 drawn on Axis Bank, Indranagar Branch from the wife of the JDR Smt.Chetana K. Subject to realization of the cheque, the plaintiff (DHR) has received the cheque on 10-8-2011 and endorsed his signature on the same attachment of movables warrant. The Central Process Nazir of City Civil Court has endorsed the same on 10-8-2011. In this way, the defendant has already paid Rs.1,75,000/- to the DHR. Therefore, now, the DHR is to refund Rs.3,77,170/- out of the total security deposit amount of Rs.4,80,000/-. Hence, this Court is of the opinion that plaintiff has utterly failed to prove the arrears of rent of 17 months from November 2007 as prayed for in the suit. Hence, 54 O.S.No.5013/2009 plaintiff failed to prove issue Nos.1 and 2. Hence, I answer issue No.1 and 2 in the negative.
33. In view of the above discussions and the reasons stated therein and my answer to issue no.1 and 2, the defendant has proved the burden placed on him in proving the additional issue No.1. The defendant is entitled for security deposit of Rs.3,77,170/- after deducting all arrears out of Rs.4,80,000/-. The defendant has sought for 24 % interest in Ex.D22, but at this juncture it appears to be unreasonable, if plaintiff is directed to refund the balance rent advance of Rs.3,77,170/- with interest at the rate of 7% p.a. from 1-1-2008 till repayment of the entire rent advance, it will meet the ends of justice. However, defendant has to pay Court fee on his counter claim. Hence, I answer additional issue No.1 in the affirmative.
55 O.S.No.5013/2009
34. ISSUE No.5: In view of the discussions and reasons stated above and my answers to the above point, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed with costs.
Counter claim of the defendant is hereby allowed subject to payment of Court Fee on the decreetal amount.
Plaintiff is hereby directed to pay balance of rent advance of Rs.3,77,170/- with interest at the rate of 7% p.a. from 1-1-2008 till the date of realization.
The plaintiff is hereby directed to pay the decreetal amount within two months from the date of this judgment & decree.
Office is hereby directed to compute the Court Fee on decreetal amount, subject to 56 O.S.No.5013/2009 payment of Court Fee on Counter Claim. Draw decree accordingly.
(Dictated to the Judgment Writer on computer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 14th DAY OF DECEMBER 2015).
(M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL JUDGE, BENGALURU.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 : Abdul Hameed @ Pyarejan WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 : K.Chethana. D.W.2 : Syed Tabriz. D.W.3 : Venkaiah.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 & 2 : CC of plaint and written statement in O.S. No.8467/2007.
Ex.P.3 : Memo.
Ex.P.4 to 6 : CC of order sheet and judgment in O.S.
No.8467/2007.
Ex.P.7 : Order sheet in Ex.P.No.412/2009.
Ex.P.8 : Copy of legal notice.
Ex.P.9 : Post receipt.
Ex.P.10& 11 : Certificate of posting.
Ex.P.12 to 16 : Returned postal covers.
57 O.S.No.5013/2009
Ex.P.17 : Circular dtd.1-8-2008.
Ex.P.18 : Acknowledgement.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
Ex.D.1 : Copy of rent agreement.
Ex.D.2 : Notice.
Ex.D.3 : Authorization letter.
Ex.D.4 : Letter.
Ex.D.5 : Cheque.
Ex.D.6 : Letter.
Ex.D.7 : Cheque.
Ex.D.8 : Letter.
Ex.D.9 : Cheque.
Ex.D.10 : Letter.
Ex.D.11 : Letter with cheque.
Ex.D.12 : Copy of notice.
Ex.D.13 : Letter from cable office.
Ex.D.14 : Termination letter.
Ex.D.15 : Notice.
Ex.D.16 : copy of letter.
Ex.D.17 : UCP copy.
Ex.D.18 : Letter.
Ex.D.19 : UCP.
Ex.D.20 : Letter.
Ex.D.21 : Acknowledgement.
Ex.D.22 : Letter.
Ex.D.23 : Acknowledgement.
Ex.D.24 : Reply.
Ex.D.25 : Acknowledgement.
Ex.D.26 : Complaint.
Ex.D.27 : Acknowledgement.
Ex.D.28 : Complaint.
Ex.D.29 : Acknowledgement.
Ex.D.30 : Letter.
Ex.D.31 : Acknowledgement.
58 O.S.No.5013/2009
Ex.D.32 : Letter
Ex.D.34 : Acknowledgement given by PSI. Ex.D.35 : Letter Ex.D.36 : Acknowledgement.
Ex.D.37 : CC order sheet in Ex.P.No.412/2009 Ex.D.38 : CC Warrant in Ex.P.P.412/2009 Ex.D.39 : CC of Schedule.
Ex.D.40 : CC of Mahazar.
Ex.D.41 : CC of Possession Certificate.
(M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL JUDGE, BENGALURU.