Bangalore District Court
Mr. Mohammed Idris Babu vs Mr. Shridhar. S on 13 April, 2022
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 13th day of April, 2022.
O.S.No.25713/2012
Plaintiff:- Mr. Mohammed Idris Babu,
S/o Mr. Mohammed Yunus,
Aged about 63 years,
R/at C-16, 202, Kalpak Estate,
Shaik Misri Road, Antop Hill,
Mumbai-400 037.
Presently R/at No.15,
Someshwar Temple Road,
Opp. RBANMS School,
Halasuru
Bengaluru-560 008.
[By Sri. P. B Raju -Adv.]
V/s
OS No.25713/2012
2
Defendant:- Mr. Shridhar. S,
S/o Mr. Sunder,
Aged about 42 years,
R/at Old No.12, New No.15,
Situated at Someswara Koil Street,
Ulsoor,
Bangalore-560 008.
R/at No.6/3, 2nd Floor,
Damodar Mudliar Street,
Bangalore- 560 008.
[By Sri. Muni Govinda Raju- Adv.)
07.04.2012
Date of Institution of the suit
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Ejectment
for injunction, etc.)
Date of the commencement of 08.01.2013
recording of the Evidence.
Date on which the Judgment was
13.04.2022
pronounced.
Year/s Month/s Day/s
Total duration 10 00 06
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff against the Defendant for Eviction of the Defendant from the Suit Schedule Property and for damages.
OS No.25713/2012 3
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, he is the absolute owner of the Property bearing No.15, Someshwara Temple Road, Opposite to RBANMS School, Halasuru, Bengaluru, being a Commercial Property measuring 2800 Sq.Ft. The Defendant approached him with a request to grant the Commercial Open Space ad-measuring 2000 Sq.Ft in the said Property, which is shown as [Shed-B, temporary for his use and occupation to run a motor garage, water servicing and allied services, without any claim of tenancy, lease, grant; and only on the basis of leave and license, on payment of monthly license fee, under the leave and license agreement dated : 01.05.2011. He had granted the Schedule Property to the Defendant on leave and license basis on monthly license fee of Rs. 13,125/-, to be paid by the Defendant to him on the first of every English Calendar Month. The Defendant has also deposited interest fee refundable Security Deposit of Rs. 2,00,000/-, with him, which is to be refunded to the Defendant, without any interest at the time of the Defendant handingover the vacant possession of the OS No.25713/2012 4 licensed Suit Schedule Premises to him. The said license was granted to the Defendant to run his garage in the Suit Schedule Property for a period of 11 months, commencing from 01.05.2011 till 31.03.2012.
He further contends that, he requires the said premises for his own use and occupation and accordingly, he had issued Termination Notice dated : 19.01.2012, calling upon the Defendant to vacate and handover the vacant possession of the Suit Schedule Premises by 31.03.2012, failing which he shall be liable to pay license fee/ fine at Rs. 2,500/- p.m. till he vacates and hands over the vacant possession of the Scheduled Premises to him, interms of the License Agreement. The said Notice was duly served on the Defendant. And the Defendant has sent a Reply Notice dated :
05.03.2012 by taking up false and untenable stand.
He has issued Rejoinder Notice to the said Reply Notice issued by the Defendant through his Counsel.
Further contends that, the Defendant has also falsely instituted a Suit at O.S.No. 1714/2012, on the file of the Addl. City Civil Court [CCH-6], OS No.25713/2012 5 Bengaluru for the relief of Injunction against him, alleging false interference.
Further contends that, the Defendant was a willful defaulter in payment of the license fee, right from the date of taking possession of the Suit Schedule Premises, on license; he has never paid the license fee regularly at any time during the license period of 11 months. Thus, he has violated the terms and conditions of License Agreement. Since, he has terminated the license of the Defendant over the Suit Schedule Property, so he is entitled to have vacant possession of the Suit Schedule Premises, by getting evicted the Defendant; and to recover the damages from the Defendant for the period of his occupation over the said Premises, even after the date of expiry/ termination of license, in terms of the Agreement.
Hence, prayed to Decree the Suit, as prayed for, in the Suit Plaint.
3. Suit Summons was issued to the Defendant. The Defendant has appeared through his Counsel and has filed his Written Statement, contending that, he has been inducted in the Suit Schedule Property, on a leave and license basis, OS No.25713/2012 6 under the leave and License Agreement dated :
21.06.2009, wherein license fee was fixed at Rs.
12,500/- p.m. for a period of 11 months, commencing from 01.07.2009 to 30.05.2010. He had also deposited Security Deposit amount of Rs. 2,00,000/- with the Plaintiff under the said License Agreement dated : 21.06.2009. The Original License Agreement dated : 21.06.2009 is kept with the Plaintiff and the xerox copy of the same, was given to him. Under the said License Agreement, he was authorized to construct a vehicle service station and necessary structures in the Suit Schedule Property, out of his own cost and expenditure. The Plaintiff had assured him that, he can stay and occupy the Suit Schedule Property, atleast for a period of 12 years. On the basis of the said License Agreement dated :
21.06.2009, he has spent Rs. 10,00,000/- towards land cleaning, land leveling, removing the debris, construction of office room, garage shed, car ramp, electrical motors, wiring, computer, UPS connection and has obtained Government License to carryon the Automobile Service Business in the Suit Schedule Property. He is also paying the Electricity Bills pertaining to the Suit Schedule Property. He has OS No.25713/2012 7 obtained Telephone Connection at the Suit Schedule Property and is paying telephone bills to the concerned Department.
Further contends that, he and the Plaintiff have again entered into an another Leave and License Agreement on 01.05.2011, on enhancing license charges at 5%. As per the said subsequent Agreement, he is paying monthly license charges of Rs. 13,125/-. He has deposited additional refundable Security Deposit of Rs. 2,00,000/- with the Plaintiff under the second Leave and License Agreement. In total he has paid refundable Security Deposit of Rs. 4,00,000/- to the Plaintiff. He has paid upto date license charges to the Plaintiff. The Original Leave and License Agreement dated :
01.05.2011 is retained by the Plaintiff and xerox copy of same is given to him.
Further contends that, he is a vehicle mechanic and running a business of Automobile Services, in the Suit Schedule Property, under the name and style as "SRI PANCHAIYAMMAN AUTOMOBILE WORKS". He has got registered the said Firm, on 18.07.2009, registration certificate is issued by the Government of Karnataka, Department of Labor to him, under OS No.25713/2012 8 Karnataka Shops and Commercial Establishments Act, 1961. He has also obtained Trade License Certificate from BBMP. He is in peaceful and lawful possession and enjoyment of the Suit Schedule Property, from the date of occupation of the Suit Schedule Property, as a Licensee and doing his business without any breach or default.
Further contends that, in the first week of January - 2012, the Plaintiff had further demanded a sum of Rs. 10,00,000/-, as further Security Deposit and 20% enhancement in the existing license charges. But, he had expressed his inability to afford such a huge demand of the Plaintiff. Due to non- fulfillment of the said demand the Plaintiff got issued a Legal Notice to him on 19.01.2012 demanding him to vacate the Suit Schedule Property, by 31.03.2012, without any justifiable reason, but with a malafide intention. He has spent lakhs of rupees in setting up his business on the assurance of Plaintiff that, he can continue his business at least for ten years, from 2009. If the Defendant succeeds in dispossessing him from the Suit Schedule Property, his future life will be ruined; and the lives of seven persons OS No.25713/2012 9 engaged by him, on work in the Suit Schedule Property, will also be ruined.
The Defendant has got amended his Written Statement on incorporation Para Nos. 11(a) to 11(c) and 28(a) and (b) wherein he has contended that, he has incurred Rs. 10,00,000/- to set-up his business in the Suit Schedule Property; and has paid Rs. 4,00,000/-, as interest free refundable Security Deposit to the Plaintiff. He is entitled to recover the said Rs. 10,00,000/- spent by him, over the Suit Schedule Property with interest at the rate of 14%, totally he will be entitled to receive an amount of Rs. 18,98,800/-. He has claimed the said amount, by way of Counter Claim against the Plaintiff. He will pay the Court Fee U/Sec. 21 of Karnataka Court Fee and Suit Valuation Act. Hence, prayed to allow his Counter Claim, by directing the Plaintiff to pay an amount of Rs. 10,00,000/-, with interest at the rate of Rs. 14% from June - 2009 to January - 2013, amounting to Rs. 4,98,800/-; and Security Deposit amount of Rs. 4,00,000/-.
OS No.25713/2012 10
4. The Plaintiff has filed his rejoinder denying all the contentions taken up by the Defendant, in the form of Counter Claim and has specifically contended that, he had received only Rs. 2,00,000/- under the first Leave and License Agreement dated :
21.06.2009 and the said Security Deposit amount was continued in the second Leave and License Agreement dated : 01.05.2011. He has specifically contended that, he has not received an additional Refundable Security Deposit amount of Rs.
2,00,000/-, as contended by the Defendant. The Defendant had agreed to vacate the Suit Schedule Premises after expiry of 11 months under the Leave and License Agreement dated : 01.05.2011. So also, he had also undertaken to take away the structures erected by him in the Suit Schedule Property, by dismantling the same. The Defendant has failed to adhere to the terms and conditions of the Leave and License Agreement dated : 01.05.2011. Hence, he is not entitled for recovery of any amount, muchtheless as claimed by him, under the Counter Claim.
OS No.25713/2012 11
5. On the basis of the original pleadings, my Learned predecessor in office, has framed the following issues on 06.11.2012, as under:
ISSUES
1. Whether the Plaintiff proves that he has validly terminated the tenancy of Defendant?
2. Whether the Plaintiff is entitled for damages of Rs.2,500/- per day from 01.04.2012?
3. Whether the Defendant proves that, Court fee paid on the plaint is proper and correct?
4. Whether Plaintiff is entitled for relief sought for?
5. What decree or order?
6. On the basis of the Amended Pleadings, this Court has framed Addl. Issues on 01.10.2018 as under :
1. Whether the Defendant proves that he has spent Rs.10,00,000/- to develop the Suit Schedule Property and to set up his business in the Suit OS No.25713/2012 12 Schedule Property as alleged, in Para No.11(a) and 11(b) of Written Statement?
2. Whether the Defendant proves the cause of action for claiming counter claim, as contended in Para No.28(b) of Written Statement?
3. Whether the Defendant is entitled for the reliefs, as claimed in Para No.28(a) of Written Statement as a Counter Claim?
4. What order or Decree?
7. The Plaintiff inorder to prove his case, got examined himself as PW.1 and got marked 7 documents, as Ex.P.1 to Ex.P.7. PW-1 was cross examined on behalf of the Defendant on 22.01.2013, 25.02.2022 & 03.03.2022.
Ex.D1 to Ex.D6 - Positive Photographs; and Photograph on Aadhar Card, as Ex.D.7 were got marked on confrontation to PW.1.
Per contra, the Defendant has got examined himself as DW.1 and has got marked 09-documents as Ex.D8 to Ex.D16. DW1 was cross examined on behalf of the Plaintiff on 14.03.2022.
8. The suit was initially allotted to CCH-20. The case was transferred to this Court on OS No.25713/2012 13 04.08.2018, by virtue of a notification No. ADM-I(A) 413/2018 dated 31.07.2018 of the Principal City Civil and Sessions Judge, Bangalore.
9. Heard the Arguments of the Learned Counsels for the Plaintiff and the Defendant, respectively.
The Learned Counsel for the Defendant has filed his Written Arguments on 24.03.2022.
I have carefully gone through the Written Arguments filed on behalf of the Defendant.
10. My findings on the above said issues are as under:
Issue No 1 : In the Affirmative;
Issue No 2 : Partly in the Affirmative;
Issue No 3 : In the Affirmative;
Addl. Issue No.1 : In the Negative
Addl. Issue No 2 : In the Negative
Add. Issue No. 3 : In the Negative;
Issue No 4 : Partly in the Affirmative;
Issue No 5 : As per final order for the
following
:R E A S O N S:
11. ISSUE NO. 1:
As per the contentions of both the parties, the undisputed facts, are as under :
OS No.25713/2012 14
a) Plaintiff is the owner of the immovable property bearing No.15, Someshwara Temple Road, Opp. to RBANMS School, Halasuru, Bengaluru, being a Commercial Property, measuring 2800 Sq.Ft;
b) The Defendant has been inducted on the basis of Leave and License Agreement dated :
21.06.2009 in the portion of the above stated Property, to the extent of 2000 Sq.Ft, which is shown as the Suit Schedule Property, in this Suit;
c) The Defendant has paid the interest free Refundable Security Deposit amount of Rs. 2,00,000/- to the Plaintiff under Leave and License Agreement dated : 21.06.2009;
d) Induction of the Defendant in the Suit Schedule Property, is on leave and license basis, on a monthly License fee, which was Rs. 13,125/- from 01.05.2011, till 31.03.2012.
12. The Plaintiff contends that, since the Defendant is a willful defaulter in payment of License fee and since, he has violated the terms and conditions of License Agreement, he had issued the Notice through his Counsel, terminating the license of the Plaintiff in respect of the Suit Schedule Property.
OS No.25713/2012 15
13. The Plaintiff has produced,
a) Leave and License Agreement dated :
01.05.2011, at Ex.P.1. As per this document, it is seen that, the Plaintiff has inducted the Defendant in the Suit Schedule Property, on leave and license basis, for a period of 11 months, commencing from 01.06.2011 to 31.03.2012, for a License fee of Rs.
13,125/- p.m., to be deposited by the Defendant in the Bank Account of the Plaintiff, held with ICICI Bank. This document also indicates that, the Licensee has deposit a sum of Rs. 2,00,000/- towards Security Deposit Refundable to the Licensee without any interest at the time of giving vacant and peaceful possession of the open space bearing Property No. 15, measuring 2000 Sq.Ft.
b) Office copy of the Notice dated : 19.01.2012, at Ex.P.2. As per this document, it is seen that, the Plaintiff has expressed his intention not to extend the period of Agreement and hence called upon the Defendant to handover the vacant and peaceful possession of the licensed premises to him, on 31.03.2012, else, he will be liable to pay license fine of Rs. 2,500/- per day.
OS No.25713/2012 16
c) Postal Acknowledgment, at Ex.P.3. As per this document, it is seen that, the said Notice Ex.P.2 has been served upon the Defendant.
d) Reply Notice dated : 05.03.2012, at Ex.P.5. As per this document, it is seen that, the Defendant has received the Notice, as per Ex.P.2 and he has replied the said Notice, under this document.
14. Admittedly, the Defendant has been inducted in the Suit Schedule Property, on the basis of Leave and License Agreement dated : 21.06.2009, which was for a period of 11 months. Subsequently, the parties to the said Leave and License Agreement have entered into another Leave and License Agreement dated : 01.05.2011. The said Leave and License Agreement was for a period of 11 months, as can be seen, as per the terms of the said Agreement, morespecifically Clause - 4 of Ex.P.1. Thus, as per the said Agreement, the period of license is from 01.05.2011 to 31.03.2012.
14.01. The Plaintiff has issued Notice of Termination, as per Ex.P.3, on 19.01.2012, expressing his intention not to continue the said OS No.25713/2012 17 license and requesting the Defendant to vacate the premises, on 31.03.2012.
14.02. Thus, as per the terms of Leave and License Agreement dated : 01.05.2011 - Ex.P.1 and as per the terms of Termination Notice - Ex.P.2, the license of the Defendant over the Suit Schedule Property is terminated on determination of the period of license.
14.03. Admittedly, the license was a monthly license inbetween the Plaintiff and the Defendant.
15. Even, as per Sec. 106 of Transfer of Property Act, when the lease is a monthly lease, 15- days clear Notice, for vacating the premises, is to be given to the tenant, by the landlord.
In this case, the induction of Defendant in the Suit Schedule Property was on the basis of Leave and License, on a monthly License fee.
The Plaintiff in this case has given clear cut 15 days Notice to the Defendant to vacate the Suit Schedule Premises, under Ex.P.2.
OS No.25713/2012 18 Under such circumstances, I hold that service of Notice is effected, even in terms of 106 of Transfer of Property Act.
15.01. By issuing notice under Sec.106 of T.P. Act, the Plaintiff has made his intention clear, not to continue the license of the Defendant, so question of continuation of further license, does not arise at all.
15.02. The license of the Defendant has commenced under Ex.P.1 - Leave and License Agreement dated 01.05.2011, for a period of 11 months and both the parties had agreed to enhance the period of the license, on mutual consent. As per Ex..P.2, there is no consent of the Plaintiff for continuation of the period of license, from 01.04.2012.
16. Even other wise in this case, notice is not required to be served on the Defendant. It is not in dispute that the Defendant was put in possession, as the licensee of the Suit Schedule Property, as per Ex.P1- Leave and License Agreement dtd.01.05.2011 OS No.25713/2012 19 and the said license admittedly, was for a period of 11- months. It is also not in dispute that, the said license period has expired on 31.03.2012.
16.01. Sec.111 of Transfer Property Act, deals with the determination of tenancy, once the tenancy gets determined, by virtue of expiry of time, no further determination arises in law. Applying the said preposition of law to the instant case at hand, when the license of the Defendant is expired on 31.03.2012, as per Ex.P1; and when the license has not been extended by the Plaintiff, the said license gets determined. .
16.02. Sec.111 T.P. Act prescribes mode of determination of tenancy. Once the lease determines in any of the modes prescribed U/Sec. 111, the contract comes to an end and there is no question of giving a notice to quit, to such lessee, who continues in possession, after determination of lease i.e., after the contract comes to an end, there is no question of terminating the contract, over and again, by notice. I find force to my above opinion, as per the decision of OS No.25713/2012 20 the Hon'ble High Court of Karnataka, reported in AIR 2007 KAR.46, wherein it is envisaged that, "In case of termination of tenancy by efflux of time, the question of issuing statutory notice U/Sec.106 does not arise at all".
In the similar circumstances, the Hon'ble Apex Court in the Judgments reported in AIR 1978 SC 1518; AIR 1964 SC 461; AIR 1988 SC 1845; AIR 1981 SC 1550, has held that, "No notice is necessary, in case of the expiry of lease by efflux of time".
From the principles enunciated by the Hon'ble Apex Court as well as by the Hon'ble High Court of Karnataka in the decisions referred to above and from the reading of the provisions of Sec.111 of T.P. Act, it is clear that, on the expiry of lease/license period by efflux of time, no further termination of tenancy or extension of license arises, as no subsisting contract remains, after the license period is over.
OS No.25713/2012 21
17. Therefore, I am constrained to hold that, the license of the Defendant is terminated by determination of contract of leave and license, under Ex.P1- Agreement.
Thus, the Plaintiff has proved that he has validly terminated the license of the Defendant.
Hence, I am constrained to answer ISSUE NO.1 IN THE AFFIRMATIVE.
18. ISSUE NO.2:
The Plaintiff contends that, inspite of issuing notice of termination, as per Ex.P2, the Defendant has failed to vacate the licensed premises on 31.03.2012. So he is entitle to receive damages from the Defendant @ Rs.2,500/- per day, as has been intimated to the Defendant under Ex.P2- Notice.
18.1. Coming to the ocular evidence on the point of payment of license fee, more specifically,
a) cross examination of PW.1, at Page No.9, Para No.1, (Q & A),which reads as under:-
Que: Is Defendant regularly paying the Rent?
Ans: Defendant has not paid the Rent from August-2015?"
OS No.25713/2012 22 As per this evidence Plaintiff/ PW1 contends that, Defendant has not paid the rent to him from August-2015.
b) cross examination of DW.1, at Page No.13, Para Nos.4 to 6, which reads as under:-
"I have paid Rent to the Plaintiff, upto December - 2017. Thereafter, the son of the Plaintiff caused threats upon me, since then I have not paid the Rents, to the Plaintiff.
It is false to suggest that, I have paid the Rents to the Plaintiff, since August - 2015.
I have not produced any document, in this case to show that, I have paid Rents to the Plaintiff from August - 2015, till December
- 2017. It is false to suggest that, I am deposing falsely that, I have paid the Rents from August - 2015 to December - 2017, to the Plaintiff."
As per this evidence Defendant /DW1 contends that, he has paid rents upto December-2017, but has not any produced any documents to show that, he has paid rents to the Plaintiff from August-2015 to December -2017.
18.02. Thus, as per the above ocular evidence and in the absence of any cogent evidence suggesting payment of rents/ license fee by the OS No.25713/2012 23 Defendant to the Plaintiff from August-2015, till December 2017, it can be concluded that, the Plaintiff has paid the license fee upto July-2015; and the Defendant is due to pay license fee from August- 2015.
18.03. Since there is no any terms in Ex.P1- Leave and License Agreement dtd.01.05.2011, withregard to payment of enhance license fee, prescribing the period, so under such circumstances, same license fee is made applicable to the period from August-2015, till 30.06.2022. (the date fixed for vacating and giving possession of the vacant Suit Schedule Property to the Plaintiff).
18.04. Calculation of the license fee to be paid by the Defendant to the Plaintiff from August- 2015 to 30.06.2022, comes to 83 months X Rs.13,125/- = Rs.10,89,375/-
18.05. The Plaintiff is entitle for the damages of Rs.10,89,375/-, upto 30.06.2022.
Hence, I am constrained to answer ISSUE NO.2 PARTLY IN THE AFFIRMATIVE.
OS No.25713/2012 24
19. ADDL. ISSUE NO.1:-
The Defendant contends that, he has spent Rs.10,00,000/- to develop the Suit Schedule Property and set up his business. The Defendant is entitle for refund of the said amount alongwith interest.
The Learned Counsel for the Defendant would contend that, the son of the Plaintiff had undertaken to return the amount spent by the Defendant for development of the Suit Schedule Property.
20. Coming to the documentary evidence on this point, more specifically, the Leave and License Agreement dtd.01.05.2011, marked at Ex.P1.
On careful perusal of the said document, it is seen that, the Plaintiff and the Defendant have entered into certain terms and conditions, amongst the said conditions there is a clause -4 (XII), which deals with return of the Suit Schedule Property, which reads as under:-
"(xii) On the expiration of the terms herein reserved or if its early determination to quit, vacate and hand over the licensor vacant and peaceful possession of the licensed site in the same condition in which it was received."
OS No.25713/2012 25 As per this Clause Defendant has agreed to quit, vacate and hand over the license premises to the Licensor in the same condition, in which it was received.
20.01. Further as per Clause-6 (III) of Agreement-Ex.P1, which reads as under:-
"(iii) That the payment of the license charges shall be irrespective of business or gain by the licensee earlier determination of the agreement by the licensee any time before the period of 11 months he will have to pay the license charges for the entire period of 11 months.
In this case it will be lawful for the licensor to deduct such amount from security deposit and make the refund of the balance amount after vacating of the site."
As per this Clause, the Defendant has agreed not to claim any sum towards the installations, erections, paraphernalia, interior, exterior, installed by the Licensee for the purposes of his business and his convenience with the licensee shall entitle to remove at the time of vacating/ leaving the licensed premises in its original position.
OS No.25713/2012 26 20.02. Further the Defendant has got confronted the photographs pertaining to the existence of the situation and status over the Suit Schedule Property, at Ex.D1 to Ex.D6.
20.03. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW.1, at Page No.7, Para No.4, which reads as under:-
"Now, six Positive Photographs are shown to the witness and questioned to him that, the structures found in the said Photographs have been errected by the Defendant. Witness answers in Affirmative. On confrontation and admission, the said Positive Photographs are marked as Ex.D.1 to Ex.D.6."
As per this evidence, Plaintiff/PW1 admits that, the structures found in the said photograph have been erected by the Defendant.
b) cross examination of PW.1, at Page No.7, Para No.3, which reads as under:-
"It is true to suggest that, Defendant has errected a structure in the form of Office, Garage and House in the Suit Schedule Property. Witness volunteers that, he had asked the Defendant to take OS No.25713/2012 27 away the said structure errected in the form of Office, Garage and House, at the time of vacating the premises."
As per this evidence, Plaintiff/PW1 admits that, the Defendant erected structures in the form of Office, garage and House in the Suit Schedule Property. But he contends that, he had asked the Defendant to take away the said structure erected in the form of Office, garage and House at the time of vacating the premises.
c) cross examination of DW.1, at Page No.12, Para No.2, which reads as under:-
"It is true to suggest that, I had undertaken to vacate the Suit Schedule Property, by dismantling the structure taken up over the said Property, on completion of the period, under both the Agreements."
As per this evidence, Defendant/DW1 admits that, he had undertaken to vacate the Suit Schedule Property by dismantling the structure taken up over the said property, on completion of the period, under both the Agreements.
OS No.25713/2012 28
d) cross examination of DW.1, at Page No.12, Para No.7, which reads as under:-
"It is false to suggest that, I am liable to vacate the Suit Schedule Property, as agreed under the Agreement - Ex.P.1, by dismantling the Structure taken up, over it."
As per this evidence, Defendant/DW1 denies the suggestion made to him on behalf of the Plaintiff that, he is liable to vacate the Suit Schedule Property, as agreed under Agreement-Ex.P1, by dismantling the structure taken up over it.
20.04. Thus, on going through recitals of the Agreement-Ex.P1, more specifically at Clause-4(XII) and Clause-6(III), the same will not form the right of the licensee on eviction to have compensation, as required U/Sec.64 of Indian Easements Act, 1882, which reads as under:-
"64. Licensee's rights on eviction.-- Where a license has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor."
OS No.25713/2012 29 When the same does not create a right to the Defendant to claim compensation from the Plaintiff as provided U/Sec.64 of the Indian Easements Act, 1882, then the Defendant has no right to claim Rs.10,00,000/- from the Plaintiff towards the amounts said to be spent by him for development of the Suit Schedule Property.
When the Defendant is not entitled for claim of Rs.10,00,000/-, then he will also not be entitled to receive any interest, as claimed by him.
21. The second contention raised by the Defendant is that, he has paid Rs.2,00,000/-, as interest free Security Deposit amount to the Plaintiff under the first leave and license Agreement dtd.21.06.2009; and has paid additional interest free Security Deposit amount of Rs.2,00,000/- to the Plaintiff, under the second leave and license Agreement dtd.01.05.2011.
21.01. The Plaintiff admits that, he has received Rs.2,00,000/-, as interest free Security Deposit from the Defendant under the first licence Agreement dtd.21.06.2002; and further contends OS No.25713/2012 30 that, the said deposit was continued under the second license Agreement dtd.01.05.2011. Inotherwords, the Plaintiff denied receipt of additional or fresh Security Deposit of Rs.2,00,000/-, apart from Rs.2,00,000/- paid under the first licence Agreement by the Defendant, under the second license Agreement dtd.01.05.2011. Still inotherwords, the Plaintiff contends that, in total he has received Rs.2,00,000/-, as interest free Security Deposit amount from the Defendant.
21.02. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW1 at Page No.8, Para No.3, which reads as under:-
"It is true to suggest that, I had entered into second Agreement with the Defendant in May-2011. Witness volunteers that, the said Agreement was for a period from May-2011 to March- 2012. It is false to suggest that, I had taken security deposit amount of Rs. 2,00,000/- under the said second Agreement. Witness volunteers that, security deposit amount of Rs. 2,00,000/- taken at the time of first Agreement was continued in the second Agreement."
OS No.25713/2012 31 As per this evidence Plaintiff/PW.1 contends that, he has received only Rs.2,00,000/-,as Security Deposit Agreement and the same was continued in the second Agreement; and denied the suggestion made to him on behalf of the Defendant that, he has received Security Deposit of Rs.2,00,000/-, under the second Agreement also.
b) cross examination of DW1 at Page No.11, Para No.3, which reads as under:-
"It is false to suggest that, I have not paid separate Security Deposit amount, under 2nd Agreement - Ex.P.1, but I have continued the Security Deposit amount paid under the 1st Agreement dated :
21.06.2009, towards the 2nd Agreement."
As per this evidence Defendant /DW.1 denies the suggestion made to him on behalf of the Plaintiff that, he has not paid separate Security Deposit Amount under second Agreement-Ex.P1, but the Security Deposit amount paid under the first Agreement dtd.21.06.2009 was continued under the second Agreement.
OS No.25713/2012 32 21.03. When the Defendant contends that, he has paid Security Deposit of Rs.2,00,000/- under second Agreement dtd.01.05.2011-Ex.P1; and when the said fact is denied by the Plaintiff, then it is for the the Defendant to prove the existence of the said fact, as required U/Sec.101 of Indian Evidence Act.
21.04. The Defendant though contended that, he has paid separate Security Deposit amount of Rs.2,00,000/- to the Plaintiff, under the second Agreement dtd.01.05.2011-Ex.P1, but he has failed to prove the said fact, by leading cogent evidence.
21.05. When the Defendant has failed to prove payment of separate or additional Security Deposit amount of Rs.2,00,000/- to the Plaintiff, then he will not be entitled to get refunded Rs.4,00,000/-, as contended by him. But, since the Plaintiff has admitted the receipt of Rs.2,00,000/-, as Security Deposit amount from the Defendant, under such circumstances, Defendant will be entitled to get refunded Rs.2,00,000/-, only.
OS No.25713/2012 33 The said Rs.2,00,000/- will be appropriated towards the payment of arrears of license fee, calculated supra, while discussing Issue No.2.
22. Thus, the Defendant will not entitled to recover the amount as claimed by him, under the Counter Claim.
Hence, I am constrained to answer ADDL. ISSUE NO.1 IN THE NEGATIVE.
23. ADDL. ISSUE NO.2:-
The Defendant contends that, the cause of action to claim the Counter Claim, has arisen for him for filing the Counter Claim on 21.06.2009, the date of first Agreement between him and the Defendant; subsequently on 01.05.2011, when he has entered into a second Agreement with the Plaintiff; and further date of paying rents on every month to the Plaintiff.
23.01. The present suit is filed by the Plaintiff on 05.04.2012. The Defendant has filed his Written Statement on01.06.2012. The Defendant has got incorporated the Counter Claim under the OS No.25713/2012 34 application filed by him U/Or 6 Rule 17, which was allowed on 05.11.2016.
23.02. Or. 8 Rule 6-A of CPC reads as under:-
"Rule 6A. Counter- claim by Defendant- 1) A Defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause action according to the defendant against the plaintiff either before or after the filing of the suit, but before the defendant against the plaintiff either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-
claim is in the nature of a claim for damage or not:
1. Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.
2. Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
3. The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
OS No.25713/2012 35
4. The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.
As per the said provision of law the cause of action for claiming Counter Claim shall approve to the Defendant against the Plaintiff, either before or after the filing of the suit, but before the Defendant has delivered his defence or before the time limited for delivering his defence as expired.
23.02.01. Applying the said preposition of law to the instant case at hand, the Defendant has delivered his defence, by filing his Written Statement on 01.06.2012. So the cause of action for claiming Counter Claim must be either before or after the filing the suit by the Plaintiff and not subsequent to delivery of his defence.
23.02.02. So under such circumstances, the Defendant has failed to show that, there exists a cause of action for him, to claim the Counter Claim, as contended in Para No.28(b) of his amended Written Statement.
Hence, I am constrained to answer ADDL. ISSUE NO.2 IN THE NEGATIVE.
OS No.25713/2012 36
24. ADDL. ISSUE NO.3 When the Defendant has failed to show the cause of action for claiming the Counter Claim; and when the Defendant is not entitle for recovery of an amount of Rs.10,00,000/-, claimed as a Counter Claim against the Plaintiff, then he is not entitle for the relief of Counter Claim, claimed by him under Para No.28(a) of his Amended Written Statement.
Hence, I am constrained to answer ADDL. ISSUE NO.3 IN THE NEGATIVE.
25. ISSUE NO.3:-
The Plaintiff has filed the present suit for relief of Ejectment of the Defendant and for damages.
25.01. He has paid Court Fee of Rs.10,650/-, as can be seen as per the valuation slip and the office endorsement for receipt of the Court Fee on the Suit Plaint, by valuing the suit at Rs.1,57,500/-, under Sec.41 of Karnataka Court Fees and Suit Valuation Act.
OS No.25713/2012 37 25.02. I do not find any discrepancy inrespect of the valuation of the Suit Plaint made by the Plaintiff; and payment of Court Fee by the Plaintiff U/Sec.41 of Karnataka Court Fees and Suit Valuation Act.
Thus, Court Fee paid by the Plaintiff is proper and correct.
Hence, I am constrained to answer ISSUE NO.3 IN THE AFFIRMATIVE.
26. ISSUE NO.4:-
26.01. The Plaintiff is entitle for arrears of license fee from August-2015 till 30.06.2022, which comes to Rs.10,89,375/-.
26.02. The Defendant has paid Rs.2,00,000/-, as interest free Security Deposit amount to the Plaintiff under the first Agreement dtd.21.06.2009. This amount is to be deducted from the arrears of license fee, calculated supra.
26.03. On deducting the said interest free Security Deposit amount of Rs.2,00,000/-, the OS No.25713/2012 38 amount payable by the Defendant to the Plaintiff will be Rs.8,89,375/-.
Thus, the Plaintiff is entitle to receive an amount of Rs.8,89,375/- from the Defendant towards arrears of license fee, on deducting interest free Security Deposit amount of Rs.2,00,000/-.
27. Since the Defendant has failed to prove his entitlement to claim, Counter Claim; and to claim the amounts spent by him towards development of the Suit Schedule Property, under such event the Defendant is required to be directed to remove all the structure put by him on the Suit Schedule Property, at his own costs; and to vacate and deliver the vacant possession of the Suit Schedule Property to the Plaintiff, as undertaken by him under Clause- 4(XII) and Clause-6(III) of the Leave and License Agreement dtd.01.05.2011-Ex.P1.
28. Though the Plaintiff has claimed the damages to the tune of Rs.2,500/- per day from 01.04.2012, but the Plaintiff will not be entitled for the said damages, inview of his entitlement to receive the arrears of license fee, calculated supra.
OS No.25713/2012 39 Hence, I am constrained to answer ISSUE NO.4 PARTLY IN THE AFFIRMATIVE.
29. ISSUE NO.5 and ADDL.ISSUE NO.4:-
For having answered Issue Nos.1 and 3 in the Affirmative; Issue Nos.2 and 4 Partly in the Affirmative; and Addl. Issue Nos.1 to 3 in the Negative, thus, I proceed to pass the following:
ORDER Suit of the Plaintiff is Decreed in part, with costs.
Defendant is directed to vacate and hand-over the vacant possession of the Suit Schedule Property to the Plaintiff, on or before 30.06.2022, by removing all the structures, erected on the Suit Schedule Property, with his own costs.
Plaintiff is entitle to receive an amount of Rs.8,89,375/- towards damages upto 30.06.2022, from the Defendant. And the Defendant is hereby directed to pay the said damages to the Plaintiff, on or before
30.06.2022.
In case of default, on the part of the Defendant to vacate and deliver the vacant possession as ordered, OS No.25713/2012 40 the Plaintiff will be entitle to receive an amount of Rs.30,000/- per month, as damages from the Defendant, from 01.07.2022 till the date of receipt of the vacant possession of the Suit Schedule Property.
Further if the Defendant fails to remove the structures erected by him in the Suit Schedule Property, then the Plaintiff can get the said structures removed, by filing Execution Petition; and the entire expenses borne by the Plaintiff for the same, will have to be paid by the Defendant.
In case of default on the part of the Defendant to pay the damages, the Plaintiff will be entitle to receive the same with interest at the rate of Rs.10% p.a from 01.07.2022, till its realization.
Counter Claim of the Defendant is hereby Rejected.
Draw decree accordingly.
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(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 13th day of April, 2022.) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) OS No.25713/2012 41 :SUIT SCHEDULE PROPERTY:
All that piece and parcel of the Commercial open space ad-measuring 2000 square feet, in the Immovable Property bearing No.15, Someshwar Temple Road, Opposite RBANMS School, Halasuru, Bangalore-560008 (Shed-B) and is being bounded:
On the East by : Sabapathy's Property; On the West by : Gopala Setty's Property; On the North by : Northern portion of the remaining Property of the Plaintiff; On the South by: Someswara Koil Street.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) OS No.25713/2012 42 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Mr. Mohammed Idris Babu.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1: Leave and Licence Agreement. Ex.P.2: Office copy of Legal Notice. Ex.P.3: Postal Acknowledgment. Ex.P.4: Unserved postal cover. Ex.P.5: Reply.
Ex.P.6: Rejoinder.
Ex.P.7: Acknowledgment.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT: DW.1: Shridhar. S. LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D1 to 6: Positive Photographs. Ex.D7: Xerox copy of Aadhar card. Ex.D8 & 8(A): Electricity Bills requisition and Receipt. Ex.D9: Registration Certificate issued by the Department of Labour.
Ex.D10: Trade License Certificate issued by BBMP. Ex.D11: Encumbrance Certificate. Ex.D12 to 14: Three Requisition of Bills issued PKK, PWD and Corporation Contractor.
Ex.D15: Fabrication Work Bill. Ex.D16 & 16(A): Office copy of complaint with Endorsement in Form-76A.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)