Karnataka High Court
Sri Jatin Seth vs Dr Girish K Nashi on 25 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:12110
WP No. 7167 of 2024
C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No. 7167 OF 2024 (GM-CPC)
C/W
WRIT PETITION No. 6750 OF 2024(GM-CPC)
WRIT PETITION No. 6850 OF 2024(GM-CPC)
WRIT PETITION No. 7216 OF 2024(GM-CPC)
WRIT PETITION No. 7302 OF 2024(GM-CPC)
WRIT PETITION No. 7362 OF 2024(GM-CPC)
IN W.P No.7167/2024:
BETWEEN:
SMT. NISHAT SULTAN
W/O SUHAIL KHAN
AGED 42 YEARS
RESIDING AT No. 8/10
6TH CROSS, H M ROAD
Digitally signed by LINGARAJUPURA
LAKSHMINARAYANA
MURTHY RAJASHRI BENGALURU - 560 084.
Location: HIGH
COURT OF
KARNATAKA AND ALSO AT:
SHOP No.19, 24 AND 29
'KRUPASHRI', OLD No.14
QUADRANT ROAD, NEW No. 23
THYAGI DORESWAMY ROAD
SHIVAJINAGAR
BENGALURU - 560 051.
...PETITIONER
(BY SRI RAJENDRA M A, ADVOCATE)
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C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
AND:
1. DR. GIRISH K NASHI
S/O LATE K G NASHI
AGED ABOUT 64 YEARS.
2. R SHARMILA
W/O GIRISH K NASHI
AGED ABOUT 55 YEARS.
3. AMARESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 32 YEARS.
4. ADESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 28 YEARS.
ALL ARE RESIDING AT
No. 76, N.N FARM ROAD
SANJAYNAGAR
BENGALURU - 560 094.
...RESPONDENTS
(BY SRI V LAKSHMI NARAYAN, SENIOR ADVOCATE FOR
SRI K N MAHABALESHWARA RAO, ADVOCATE FOR C/R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA WITH A PRAYER TO SET ASIDE
THE ORDER DATED 06.04.2023 PASSED BY THE TRIAL COURT AS
PER THE ANNX-K IN SO FAR AS THE PETITIONER CONCERNED AND
AS A CONSEQUENTIAL RELIEF TO STAY THE OPERATIONS OF THE
ORDER DATED: 05.01.2024 ANNX-M FOR ATTACHING THE RENTS /
CLAIMING ARREARS OF RENT DISPOSSESSION ETC.
IN W.P No. 6750/2024:
BETWEEN:
SRI JATIN SETH
S/O SHANTILAL SETH
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NC: 2024:KHC:12110
WP No. 7167 of 2024
C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
AGED 46 YEARS
RESIDING AT No.154
CHIKBAZR MAIN ROAD
(NEAR SRIRAJ LASSI BAR)
HKP ROAD, SHIVAJINAGAR
BENGALURU - 560 051.
AND ALSO AT:
SHOP No.17 AND 26
'KRUPASHRI', OLD No.14
QUADRANT ROAD, NEW No. 23
THYAGI DORESWAMY ROAD
SHIVAJINAGAR
BENGALURU - 560 051.
...PETITIONER
(BY SRI RAJENDRA M A, ADVOCATE)
AND:
1. DR. GIRISH K NASHI
S/O LATE K G NASHI
AGED ABOUT 64 YEARS.
2. R SHARMILA
W/O GIRISH K NASHI
AGED ABOUT 55 YEARS.
3. AMARESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 32 YEARS.
4. ADESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 28 YEARS.
ALL ARE RESIDING AT
No. 76, N.N FARM ROAD
SANJAYNAGAR
BENGALURU - 560 094.
...RESPONDENTS
(BY SRI V LAKSHMI NARAYAN, SENIOR ADVOCATE FOR
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WP No. 7167 of 2024
C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
SRI K N MAHABALESHWARA RAO, ADVOCATE FOR C/R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA WITH A PRAYER TO SET ASIDE
THE ORDER DATED 06.04.2023 PASSED BY THE TRIAL COURT AS
PER THE ANNX-K IN SO FAR AS THE PETITIONER CONCERNED AND
AS A CONSEQUENTIAL RELIEF TO STAY THE OPERATIONS OF THE
ORDER DATED: 05.01.2024 ANNX-M FOR ATTACHING THE RENTS /
CLAIMING ARREARS OF RENT DISPOSSESSION ETC.
IN W.P No.6850/2024:
BETWEEN:
1. SRI C M FAYAZ
S/O ABDUL
AGED 62 YEARS.
2. SMT. NOOR JAN
W/O C M FAYAZ
AGED: MAJOR
BOTH ARE RESIDING AT No.46
DHARMARAJ TEMPLE ROAD
SHIVAJINAGAR
BENGALURU - 560 051.
AND ALSO AT:
SHOP No.20
'KRUPASHRI', OLD No.14
QUADRANT ROAD, NEW No. 23
THYAGI DORESWAMY ROAD
SHIVAJINAGAR
BENGALURU - 560 051.
....PETITIONERS
(BY SRI RAJENDRA M A, ADVOCATE)
AND:
1. DR. GIRISH K NASHI
S/O LATE K G NASHI
AGED ABOUT 64 YEARS.
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C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
2. R SHARMILA
W/O GIRISH K NASHI
AGED ABOUT 55 YEARS.
3. AMARESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 32 YEARS.
4. ADESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 28 YEARS.
ALL ARE RESIDING AT
No. 76, N.N FARM ROAD
SANJAYNAGAR
BENGALURU - 560 094.
...RESPONDENTS
(BY SRI V LAKSHMI NARAYAN, SENIOR ADVOCATE FOR
SRI K N MAHABALESHWARA RAO, ADVOCATE FOR C/R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA WITH A PRAYER TO SET ASIDE
THE ORDER DATED 06.04.2023 PASSED BY THE TRIAL COURT AS
PER THE ANNEXURE - K IN SO FAR AS THE PETITIONER CONCERNED
AND AS A CONSEQUENTIAL RELIEF TO STAY THE OPERATIONS OF
THE ORDER DATED: 05.01.2024 ANNEXURE - M FOR ATTACHING
THE RENTS / CLAIMING ARREARS OF RENT DISPOSSESSION ETC.
IN W.P.No.7216/2024:
BETWEEN:
SRI SYED IRFAN
S/O SYED SULEMAN
AGED 58 YEARS
RESIDING AT No.78
D' COSTA SQUARE, NEAR MASJID
COCKS TOWN, BANGALORE NORTH
BENGALURU - 560 084.
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NC: 2024:KHC:12110
WP No. 7167 of 2024
C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
AND ALSO AT:
SHOP No.16 & 27
'KRUPASHRI', OLD No.14
QUADRANT ROAD, NEW No. 23
THYAGI DORESWAMY ROAD
SHIVAJINAGAR
BENGALURU - 560 051.
....PETITIONER
(BY SRI RAJENDRA M A, ADVOCATE)
AND:
1. DR. GIRISH K NASHI
S/O LATE K G NASHI
AGED ABOUT 64 YEARS.
2. R SHARMILA
W/O GIRISH K NASHI
AGED ABOUT 55 YEARS.
3. AMARESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 32 YEARS.
4. ADESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 28 YEARS.
ALL ARE RESIDING AT
No. 76, N.N FARM ROAD
SANJAYNAGAR
BENGALURU - 560 094.
...RESPONDENTS
(BY SRI V LAKSHMI NARAYAN, SENIOR ADVOCATE FOR
SRI K N MAHABALESHWARA RAO, ADVOCATE FOR C/R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA WITH A PRAYER TO SET ASIDE
THE ORDER DATED 06.04.2023 PASSED BY THE TRIAL COURT AS
PER THE ANNEXURE - K IN SO FAR AS THE PETITIONER CONCERNED
AND AS A CONSEQUENTIAL RELIEF TO STAY THE OPERATIONS OF
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NC: 2024:KHC:12110
WP No. 7167 of 2024
C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
THE ORDER DATED: 05.01.2024 ANNEXURE - M FOR ATTACHING
THE RENTS / CLAIMING ARREARS OF RENT, DISPOSSESSION ETC.
IN W.P.No.7302/2024:
BETWEEN:
SRI NAWAZ KHAN
S/O ABBAS KHAN
AGED 52 YEARS
RESIDING AT No.26
2ND CROSS, H M ROAD
SULTHAN NAGAR
SHIVAJINAGAR
BENGALURU - 560 051.
AND ALSO AT:
SHOP No. 1 & 2
'KRUPASHRI', OLD No.14
QUADRANT ROAD, NEW No. 23
THYAGI DORESWAMY ROAD
SHIVAJINAGAR
BENGALURU - 560 051.
....PETITIONER
(BY SRI RAJENDRA M A, ADVOCATE)
AND:
1. DR. GIRISH K NASHI
S/O LATE K G NASHI
AGED ABOUT 64 YEARS.
2. R SHARMILA
W/O GIRISH K NASHI
AGED ABOUT 55 YEARS.
3. AMARESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 32 YEARS.
4. ADESH G NASHI
S/O GIRISH K NASHI
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NC: 2024:KHC:12110
WP No. 7167 of 2024
C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
AGED ABOUT 28 YEARS.
ALL ARE RESIDING AT
No. 76, N.N FARM ROAD
SANJAYNAGAR
BENGALURU - 560 094.
...RESPONDENTS
(BY SRI V LAKSHMI NARAYAN, SENIOR ADVOCATE FOR
SRI K N MAHABALESHWARA RAO, ADVOCATE FOR C/R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA WITH A PRAYER TO SET ASIDE
THE ORDER DATED 06.04.2023 PASSED BY THE TRIAL COURT AS
PER THE ANNEXURE - K IN SO FAR AS THE PETITIONER CONCERNED
AND AS A CONSEQUENTIAL RELIEF TO STAY THE OPERATIONS OF
THE ORDER DATED: 05.01.2024 ANNEXURE - M FOR ATTACHING
THE RENTS / CLAIMING ARREARS OF RENT DISPOSSESSION ETC.
IN W.P.No.7362/2024:
BETWEEN:
SRI HABEEBA KHANAM
W/O NAWAZ KHAN
AGED 40 YEARS
RESIDING AT No.26
2ND CROSS, H M ROAD
SULTHAN NAGAR
SHIVAJINAGAR
BENGALURU - 560 051.
AND ALSO AT:
SHOP No.18, 25 & 28
'KRUPASHRI', OLD No.14
QUADRANT ROAD, NEW No. 23
THYAGI DORESWAMY ROAD
SHIVAJINAGAR
BENGALURU - 560 051.
....PETITIONER
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NC: 2024:KHC:12110
WP No. 7167 of 2024
C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
(BY SRI RAJENDRA M A, ADVOCATE)
AND:
1. DR. GIRISH K NASHI
S/O LATE K G NASHI
AGED ABOUT 64 YEARS.
2. R SHARMILA
W/O GIRISH K NASHI
AGED ABOUT 55 YEARS.
3. AMARESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 32 YEARS.
4. ADESH G NASHI
S/O GIRISH K NASHI
AGED ABOUT 28 YEARS.
ALL ARE RESIDING AT
No. 76, N.N FARM ROAD
SANJAYNAGAR
BENGALURU - 560 094.
...RESPONDENTS
(BY SRI V LAKSHMI NARAYAN, SENIOR ADVOCATE FOR
SRI K N MAHABALESHWARA RAO, ADVOCATE FOR C/R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA WITH A PRAYER TO SET ASIDE
THE ORDER DATED 06.04.2023 PASSED BY THE TRIAL COURT AS
PER THE ANNEXURE - K IN SO FAR AS THE PETITIONER CONCERNED
AND AS A CONSEQUENTIAL RELIEF TO STAY THE OPERATIONS OF
THE ORDER DATED: 05.01.2024 ANNEXURE - M FOR ATTACHING
THE RENTS / CLAIMING ARREARS OF RENT DISPOSSESSION ETC.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC:12110
WP No. 7167 of 2024
C/W WP No. 6750 of 2024
WP No. 6850 of 2024
WP No. 7216 of 2024
WP No. 7302 of 2024
WP No. 7362 of 2024
ORDER
1. These petitions by the defendants in Commercial O.S. Nos. 1046/2022, 1044/2022, 1108/2022, 1043/2022, 1109/2022 and 1045/2022 against the order passed by the Commercial Court whereby the application, I.A. No. 4 filed by the petitioners - defendants under Order VII Rule 11 CPC for rejection of the plaint was rejected by the trial Court.
2. A perusal of the material on record will indicate that the respondents - landlords instituted the aforesaid suit against the petitioners - defendants for ejectment, arrears of rent and other reliefs in relation to the suit schedule immovable property. Said suit is being contested by the petitioners - defendants. In addition thereto, petitioners - defendants filed instant applications, seeking rejection of the plaint inter alia contending that the respondents - plaintiffs had availed loan from Sir M. Vishveshwaraiah Co-operative Bank and since the
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 respondents were defaulters, said Bank had initiated proceedings for recovery including proceedings under the SARFAESI Act against the respondents. It is therefore contended that the respondents did not have locus standi to institute suit against the petitioners - defendants and it is only the Bank which had stepped into the shoes of the respondents - plaintiffs that was entitled to file and prosecute the said suit against the petitioners -
defendants and consequently, the plaint was liable to be rejected.
3. The respondents - plaintiffs opposed the said application inter alia contending that for the purpose of rejection of plaint, it is only plaint averments and documents produced along with the plaint that are germane and material for consideration. It was contended that the present suit is a simple suit for ejectment and arrears of rent by respondents - land lords against the petitioners - tenants was maintainable and plaint was not
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 liable to be rejected as sought for by the petitioners -
defendants. After hearing the parties, the commercial Court proceeded to pass the impugned order rejecting I.A. No. IV by holding as under:
ORDER ON I.A. No.IV This application under Order VII Rule 11 of CPC is filed by the defendant praying to reject the plaint.
2. In the affidavit in support of application, defendant has stated that the plaintiff had obtained loan from Sri.M.Visveswaraiah Co-operative Bank Limited and had defaulted in servicing the loan account which has resulted in account being classified as Non Performing Assets and the bank has invoked SARFAESI proceedings by issuing statutory notices i.e. Demand Notice, Possession Notice and taken steps to take physical possession under Section 14. It is stated that the BBMP has also issued notice for recovering arrears of property tax and also informed that they will seize the entire schedule property and hence
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 lessor claiming rent as arrears of rent do not arise. It is also stated that original owner of the property has mortgaged not only lease hold rights but also offered personal guarantee and the mortgagee is having right to recover the rents directly from the occupants/lessee among whom the defendant is also one of the tenant. It is stated that SARFAESI Act mandates the secured creditor to recover the rents from the occupants and tenants. It is stated that the plaintiff has suppressed these facts and question of law in the present suit and has not appeared through authorized representatives in OS No.26477/2021 and OS No.26273/2022. It is stated that the plaintiff has also not invoked and complied the provisions of Section 12A of the Commercial Courts Act by initiating PIM. It is also stated that the plaintiffs No.1 to 3 though signed vakalathnama no authorization letter is filed for filing statement of admission and denial of documents. It is stated that for all these reasons, plaint is liable to be rejected.
3. Objection is filed by the plaintiff
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 stating that the application is not maintainable in law or on facts. It is stated that under Order VII rule 11 of CPC plaint can be rejected as provided in Rule 11(a) to 11(f) and defendant has not stated as to under which sub rule the plaint is to be rejected. It is stated that the defendant has failed to make out a case for rejection of the plaint and any of the clause mentioned in Order VII rule 11 of CPC. It is stated that order VII rule 11 of CPC contains various contingencies and circumstances under which plaint can be rejected and it cannot be made out as to under which clause, plaintiff is seeking rejection of the plaint. On this ground it is stated that the application deserves to be dismissed. Plaintiff has stated that admittedly defendant is tenant of the schedule premises under the plaintiffs and has committed default in payment of rent. It is stated that for the failure of the defendant to pay rent, plaintiffs have terminated the tenancy by issuing quit notice and there is huge arrears of rent, interest and maintenance charges to be paid by the defendant. It is stated that contention taken in
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 the plaint regarding claim for mesne profits and damages from the date of termination of tenancy is also to be decided. It is stated that the defendant is carrying on the business in the premises, but has failed to pay the rent and had also filed a suit for injunction against plaintiffs and others. It is stated that the schedule property is a commercial shop has been constructed in the land which is taken on lease by the plaintiffs. It is stated that from different tenants occupied the different portions of premises in the same building there is due of more than Rs.1 crore. Contention of the defendant that the bank as a mortgagee is having a right to recover the rent directly from the occupants is not correct. It is stated that the relationship is between the lessor and lessee i.e. plaintiffs and the defendant and defendant have to pay the rent to the plaintiff and mere institution of proceedings under SARFAESI Act will not entitle the co-operative bank to recover the rent from the tenants and bank have to follow separate proceedings in that regard and that is not a separate ground for the tenant to
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 commit default. It is also stated that the plaintiffs have filed necessary application to entertain the suit without taking recourse to PIM and therefore, contention of the plaintiffs that the plaintiffs have not complied with Section 12A of the Commercial Courts Act is not correct. It is stated that the defendant has participated in the suit by filing written statement and has submitted to the jurisdiction of this court and now cannot raise this point and therefore the application deserves to be dismissed. It is also stated that plaintiff No.1 filing statement of admission and denial of documents would not come in the way of maintainability of the suit and in this application, such contention cannot be taken. It is also stated that the defendant has not made out any ground to reject the plaint. It is stated that the notice given under SARFAESI Act or the notice of the BBMP has nothing to do with the prayer of the plaintiff in the present suit for ejectment. It is stated that the defendant being a tenant could have shown his bonafide in paying the monthly rent or by depositing the rent before the court in which the case is
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 pending and the intention of the defendant is to enjoy the property without paying rent. It is stated that the suit filed by the plaintiff is not barred by any law and the court fee paid is also proper and there is cause of action in the suit and therefore on any ground under Order VII rule 11 of cpc, plaint cannot be rejected. On these grounds, application is prayed to be dismissed with exemplary costs.
4. Now the points that arise for my consideration are:
1. Whether the defendant has made out any ground under Order VII Rule 11 of CPC for rejection of plaint as prayed in I.A.No.IV?
2. What order?
5. Heard both counsels. Perused records.
6. My answer to the above points are:
Point No.1: In the Negative.
Point No.2 : As per final order for the following:
REASONS
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7. Point No.1: This ejectment suit is filed by the plaintiff praying to direct the defendant to quit, vacate and handover vacant possession of the schedule premises to the plaintiff and also to pay arrears of rent with interest and also to pay mesne profits or damages to the plaintiff from the date of termination of the tenancy. Plaintiffs have sated that they are the lessees of the commercial building as per the registered lease deed dated 31/5/2012 and the entire plot was leased for a period of 29 years, in which the plaintiffs have constructed new commercial complex and then let out to different tenants including the defendant. Plaintiffs have stated that as per the rent agreement entered between plaintiffs and defendant, tenant is in occupation of the suit schedule premises and the rent agreed is for five years and even after the period of 5 years the defendant continued to occupy the premises. According to the plaintiffs, defendant has not made payment of rent and also maintenance charges and there was due from the defendant and after deducting advance amount there is still outstanding
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 rent arrears. According to the plaintiff, tenancy of the defendant has been validly terminated by giving quit notice and even thereafter, defendant has not vacated the premises and therefore, plaintiffs have filed this suit.
8. In this suit, defendant has appeared and filed written statement and also filed present application under Order VII Rule 11 of CPC seeking rejection of the plaint.
9. On looking to the application and the affidavit in support of application, as rightly stated by the plaintiffs, defendant has not stated as to under which sub-rule of Order VII rule 11(a) to (f), plaint is liable to be rejected, according to the defendant. In the entire application or affidavit, defendant has not stated that there is no cause of action mentioned in the suit or that, court fee paid is not proper or that, this court has no pecuniary jurisdiction. Therefore, Order VII rule 11(a)(b)(c) would not apply. Order VII rule 11(e) and (f) also do not apply. As per Order VII rule 11(d) if the suit appears from the statement in the plaint to be barred by
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 any law, plaint can be rejected. Therefore, on looking to the contention taken in the affidavit and application, application can be vaguely considered to be seeking rejection of the plaint under Order VII Rule 11(d) of CPC.
10. In the application and affidavit, defendant has urged one of the point that the plaintiffs had taken loan from Sri.M.Visveswaraiah Co-operative Bank Limited and for default in servicing, loan account is classified as Non Performing Assets and the bank has invoked SARFAESI proceedings and has also issued statutory notice, later demand notice and possession notice and as the bank is the mortgagee, mortgagor is having right to recover the rent directly from the occupant/lessee and therefore the present suit is not maintainable. It is stated by the defendant that this fact of proceedings under SARFAESI Act is suppressed by the plaintiffs. On looking to the nature of the suit, which is filed by the landlord against tenant for ejectment, SARFAESI proceedings pending against the landlord is not a material point which is to be disclosed in the plaint.
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 Landlord obtaining loan from the bank and bank taking steps for recovery of loan, in whatever way permitted by law, would not come in the way of maintainability of the present suit for ejectment in landlord against tenant. It is not the case of the defendant that the bank has initiated proceedings against the defendant, seeking payment of rent directly to the bank or for seeking possession of the schedule premises as a mortgagee. Therefore, not stating about the SARFAESI proceedings in the plaint or pendency of SARFAESI proceedings against the landlord in respect of the schedule premises will not come in the way of maintainability of the present suit. Therefore, on the ground of pendency of SARFAESI proceedings and on the ground that pendency of the SARFAESI proceedings is not disclosed in the plaint, suit cannot be said to be barred by law and plaint cannot be rejected.
11. Another ground contended by the defendant appears to be that the BBMP has also issued notice towards recovery of arrears of Property tax and also informed that they will
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 seize the entire schedule property. It is stated that in view of this notice, claim for rent as arrears from lessee by the lessor do not arise. This contention also cannot be a ground for rejection of the plaint under Order VII rule 11(d) of CPC. Payment of property tax by the statutory authority is concerned to landlord. If property tax is not paid, statutory authority may take appropriate steps for recovery of the same. It is also not the case of the defendant that the BBMP has initiated proceedings against the tenant for ejectment and to seize the schedule property, for dues of property tax. It is also not the case of the defendant that the BBMP is seeking deposit of the rent.
12. Even if BBMP seeks deposit of rent or issue notice or even the bank which has initiated SARFAESI proceedings asked the defendant to vacate the premises or to deposit the arrears of rent etc, that also will not come in the way of maintainability of the present suit, but may be a defence that can be taken by the defendant to non suit the plaintiff. Since only plaint averments are relevant for considering application under
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 Order VII rule 11(d) of CPC the pendency of SARFAESI proceedings or BBMP issuing notice non payment of property tax, non clearing of the loan by the landlord and BBMP or bank initiating proceedings against the landlord etc cannot be ground for rejection under order VII rule 11(d) of CPC.
13. Another ground on which rejection of the plaint is sought is for non compliance of Section 12A of the Commercial Courts Act. This appears to be solid ground, which permit the defendant to seek rejection of the plaint. As rightly contended by the defendant, plaintiffs have not initiated PIM before filing of the suit. However, the plaintiffs had filed I.A.No.I under Order XXXIX Rule 1 and 2 of CPC seeking temporary injunction, restraining the defendant from sub-letting or creating third party interest in respect of the suit schedule premises. Since urgent order of temporary injunction was prayed by the plaintiff by filing I.A.No.I and as there was urgency, plaintiffs have not initiated PIM and have sought dispensing requirement of initiating PIM. For this purpose an application in I.A.No.I was
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 also filed under Section 12A of the Commercial Courts Act. This court by considering the application and the urgency in the matter as pleaded, has allowed I.A.No.I and dispensed the requirement of PIM, in view of plaintiffs' seeking urgent order in I.A.No.II. Therefore, though PIM is not initiated, same has been dispensed for the ground available under Section 12A of the Commercial Courts Act. Therefore, on this ground also suit cannot be rejected.
14. Learned counsel for the plaintiffs has relied on the decision of the Hon'ble Supreme Court reported in ILR 2022 KAR 4531 (H.S.Deekshit and another v. M/s.Metropoli Overseas Limited and others) in which, Hon'ble Supreme Court has held that it is well settled that while considering an application under Order 7 rule 11 of the code, averments in the plaint alone are to be examined and no other extraneous factor can be taken into consideration. In another decision reported in (2003) 1 SCC 557 (Saleem Bhai and others v. State of Maharashtra and others), Hon'ble Supreme Court has held that germane facts for
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 deciding such an application under Order 7 rule 11(a) & (d) are the averments in the plaint and not the pleas taken in the written statement.
15. In another decision reported in AIR 2000 Bombay 161 (M/s.Crescent Petroleum Limited v. Monchegorsk and another) also the Hon'ble Supreme Court under Order 7 Rule 11(a) has held that in dismissal of the suit on the ground of absence of cause of action, court have to exercise the power sparingly and cautiously and benefit of doubt must go to plaintiff.
16. On going through all these decisions, it is further clear that while considering rejection of plaint under Order VII rule 11(d) of cpc, only plaint averments are to be seen and no other extraneous factors can be considered. In this case, defendant is stating about proceedings under SARFAESI Act and action taken by BBMP which are extraneous factors and which are not found in plaint and same cannot be considered for rejection of the plaint. As regards Section 12A of the Commercial Courts Act, court had already dispensed the requirement of PIM.
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 Therefore, there are no grounds to reject the plaint and the application filed by the defendant is devoid of merits and deserves to be dismissed with costs. Accordingly, point No.1 is answered in the negative.
17. POINT No.2 : For the discussion made on above point, following order is passed:
ORDER I.A.No.IV filed under Order VII rule 11 of CPC seeking rejection of the plaint is dismissed with cost of Rs.1,000/-.
4. As can be seen from the impugned order, the Commercial Court has applied correct principles governing the rejection of plaint as contemplated under Order VII CPC as held by the Apex Court and this Court in several judgments and has come to the conclusion that so long as there was no reference to the SARFAESI proceedings in the plaint or documents produced by the respondents -
plaintiffs, the question of rejection of plaint would not arise
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NC: 2024:KHC:12110 WP No. 7167 of 2024 C/W WP No. 6750 of 2024 WP No. 6850 of 2024 WP No. 7216 of 2024 WP No. 7302 of 2024 WP No. 7362 of 2024 in the facts of the instant case. The commercial Court also took note of the fact that the defence of the parties has to be considered during the course of trial and not at the stage of an application under Order VII Rule 11 CPC.
Under these circumstances, as stated supra the commercial Court has come to the correct conclusion that the claim of the petitioners - defendants for rejection of the plaint was liable to be rejected. Under these circumstances, I do not find any reasons to interfere with the impugned order. Accordingly, petition is dismissed.
However, all rival contentions of both parties on merits are kept open and no opinion is expressed on the same.
Sd/-
JUDGE LRS List No.: 1 Sl No.: 17