Bangalore District Court
M/S Vwr Lab Products Pv.T Ltd vs M/S Ira Aarna Online Paintings Pvt. Ltd on 8 December, 2021
1 O.S.No.4328/2018
IN THE COURT OF THE LXXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE (EXCLUSIVE DEDICATED COMMERCIAL
COURT): BENGALURU CITY. (CCH-89)
Present: Sri. P.J. SOMASHEKARA, B.A.,LL.M,
LXXXVIII Addl. City Civil & Sessions Judge
Bengaluru City.
Dated this the 8th day of December 2021
Com.O.S.No.4328/2018
Plaintiff: M/s VWR Lab Products Pv.t Ltd.,
No.139, BDA Industrial Suburb,
6th Main, Off Tumkur Road,
Peenya Post, Bengaluru - 58.
A Company registered under the
Companies Act, 1956, Rep. by
its Authorised Signatory,
Mr. Arun Kumar.
(By Sri. N.V.M., Advocate)
-vs-
Defendants: 1. M/s Ira Aarna Online Paintings Pvt. Ltd.,
Reg. Office at No.129-B, Ansa Industrial
Estate, Sakivihar Road, Sakinaka,
Andheri East, Mumbai - 400 072.
A Company registered under Companies
Act, 1956 Rep. by its Director
Mr. Ramesh Mishra.
2. Mrs. Sumita Mishra, Managing Director,
M/s Ira Aarna Online Paintings Pvt. Ltd.,
Reg. Office at No.129-B, Ansa Industrial
Estate, Sakivihar Road, Sakinaka,
Andheri East, Mumbai - 400 072.
2 O.S.No.4328/2018
3. Mr. Ramesh Chandra Mishra, Director,
M/s Ira Aarna Online Paintings Pvt. Ltd.,
Reg. Office at No.129-B, Ansa Industrial
Estate, Sakivihar Road, Sakinaka,
Andheri East, Mumbai - 400 072.
(By Sri. H.S.P.G., Advocate)
Nature of the suit Money suit
Date of institution of the 19.06.2018
suit
Date of commencement of 16.03.2021
recording of the evidence
Date on which the 08.12.2021
judgment was pronounced
Total duration Year/s Month/s Day/s
03 05 19
JUDGMENT
This is a suit filed by the plaintiff against the defendant for recovery of Rs.9,33,240/- together with interest @ 18% p.a. from the date of the suit till its realization.
2. Nutshell of the plaint are as under :
The plaintiff in its plaint has alleged that who is the Private Limited company incorporated under the companies Act 1956, having its registered office at No.139, BDA, Industrial Suburb, 6 th Main of Tumkur Road, Peenya Post, Bangalore, engaged in its business of trading of scientific supplies, chemicals and equipments. The defendant is also private limited company 3 O.S.No.4328/2018 incorporated under companies Act 1956, having its registered office at 129-B, Ansa Industrial Suburb, 6th Main, Sak Vihar Road, Andheri East, Mumbai, engaged in auxiliary to financial intimidation except insurance and pension funding activities and it was in search of commercial premises to carry out its business activities and selected a commercial premises situated at 2 nd floor, No.135, bearing old No.25, Brigade Road, Bangalore, measuring 2700 sq.ft. The defendants who are the absolute owners in possession and enjoyment of the said premises and agreed to lease out the said premises. Thus they entered into lease agreement on 09.05.2008 and the defendants have agreed to provide them its exclusive use of the property situated in the 2nd floor of the premises together with fit outs, etc., as described in the annexures to the lease agreement. The possession of the premises was handover in its favour on 01.06.2008 and the said lease deed came into force on the same day i.e., on 01.06.2008.
As per the terms of the lease deed, the duration of the lease was initially for a period of 36 months commencing from the lease commencement date with a minimum period of stay of 24 months with an option to terminate the agreement after the minimum commitment period and by service of 90 days prior 4 O.S.No.4328/2018 written notice of its intention to review the lease, three calendar months before expiry of the initial of 36 months.
3. The plaintiff in its plaint has further alleged that initially the rent was fixed at Rs.2,10,600/-, computed @ Rs.78/- per sq.ft and subject to the annual escalation. In terms of the agreement it was agreed to pay interest free refundable security deposit to the defendants of Rs.21,06,000/- and electronically transferred an amount of Rs.10,53,000/- to the bank account of the defendants on 09.05.2008 and the balance amount of Rs.10,53,000/- was also transferred to the defendants account in the same month. In all transferred an amount of Rs.21,06,000/- to the bank account of the defendant and same has been acknowledged by the defendants. The lease deed was in force up to 31.05.2011, thereby they entered into amendment to the lease deed dt:09.05.2008 on 26.08.2011, amending the monthly rental as Rs.1,89,000/- and the rent for the month of September 2011 was at Rs.2,10,600/-. The revised rate effect from 01.10.2011 on wards. However, the lock-in period was maintained at 36 months from 01.10.2011 with an option to terminate the agreement by serving 90 days by either of the party and intimation has been given to the defendants about the termination of the lease deed 5 O.S.No.4328/2018 with effect from 30.06.2015 and in terms of the said lease deed, demanded for refund of the security deposit, in-turn the defendants have refunded an amount of Rs.15Lakhs, leaving a balance amount of Rs.6,06,000/- which remains to be paid, in this connection sent a number of E-mail to the defendants demanding them for refund of balance amount of Rs.6,06,000/-, but the defendants have not bothered to give any positive reply. Now the defendants are liable to pay balance refund amount of Rs.6,06,000/- with interest of Rs.3,27,240/- from 30.06.2015 to 20.06.2018 in total of Rs.9,33,240/- which is payable by the defendants.
4. The plaintiff in its plaint has further alleged the security deposit is an interest free deposit as per the lease deed, but the defendants have not refunded the balance amount even after laps of 3 years, from the date of termination of the lease, thereby liable to pay interest @18% per annum on the balance amount of Rs.6,06,000/-. The cause of action for the suit which arose on 30.06.2015 when the defendants have not returned the balance security deposit of Rs.6,06,000/- within the jurisdiction of this Court and prays for decree the suit.
6 O.S.No.4328/2018
5. In response of the suit summons, the defendants were appeared through their respective counsel and filed their written statement stating that the suit which filed by the plaintiff is frivolous, vexatious not maintainable in law or on facts and the plaintiff has filed the instant suit with a sole intention of harassing and coercing them into terms and suit lack of banafides and is not maintainable either in law or on facts same is deserved for dismissal and admitted the plaintiff is a private limited company incorporated under the Companies Act having its registered Office at Tumkur Road, Peenya, Bangalore engaged its business of trading of scientific supplies, chemical and equipments and their company is also a private limited company incorporated under the Companies Act having its registered office at No.129-B, Ansa Industrial Estate, Saki Bihar Road, Saki Naka, Andheri East, Mumbai engaged in online software developments and admitted the para 4 of the plaint that the plaintiff was in search of a commercial premises to carry out its business activities and selected a commercial premises situated at 2 nd Floor, No.135, bearing Old No.25, Brigade Road, Bangalore measuring 2,700 Sq.ft. and they are the absolute owners in possession and enjoyment of the said premises and they were agreed to lease out the said premises to the plaintiff and they were also admitted 7 O.S.No.4328/2018 para 5 of the plaint that they have entered into lease agreement on 09.05.2008 and agreed to provide the exclusive use of the property situated in the 2nd floor of the premises together with fitouts, etc., as described in the Annexure to the lease agreement. The possession of the premises has been handing over to the plaintiff on 01.06.2008 and the said lease deed came into force on the same day i.e. 01.06.2008, as per the terms of the lease deed, the duration of lease was initially for a period of 36 months commencing from the lease date with a minimum period of stay of 24 months with an option to terminate the agreement after the minimum commitment period and by service of 90 days period written notice of its intention to renew 3 calendar months before expiry of the initial of 36 months.
6. The defendants in their written statement they were further alleged initially in the rent fixed at Rs.2,10,600/- at the rate of Rs.78/- per Sq.Ft. and subject to the annual excalation and in terms of the said agreement the interest free refundable security deposits was agreed to be paid by the plaintiff to them as Rs.21,06,000/-. In fact Rs.19,03,000/- has been paid towards security deposit and at the request of the plaintiff they have executed the amended to the lease deed dated 09.05.2008 and 8 O.S.No.4328/2018 extended from 01.10.2011 to 01.10.2015 with revision in rent. The rent was reduced from Rs.2,10,600/- to Rs.1,89,000/- per month after further extension period of 1.10.2011 to 01.11.2014. The period was again extended at the request of the plaintiff the rent for the said extended period was of Rs.2,10,600/- per month. As per the lease deed has extended from time to time the plaintiff was required to give 3 months written notice to them specifying its intention to terminate and the plaintiff has gave the notice of termination of the leased premises on or before 20.05.2015, instead of vacating the premises on 20.05.2015, the plaintiff for their requirement and continue to retain possession and continue to pay the rent amounted to extension of lease on the part of the plaintiff by extending the lease and the plaintiff required to provide a fresh notice of termination before vacating the premises, but the plaintiff instead of giving fresh notice of termination decided to vacate the said premises on 07.07.2015 without their notice for termination or intimation to them.
7. The defendants in their written statement they further alleged that the plaintiff failed to provide mandatory notice of termination of 90 days and they became entitled to appropriate a sum of Rs.6,30,000/- from the security deposit towards the 9 O.S.No.4328/2018 unpaid rent for 3 months of mandatory notice period and the plaintiff had not kept the premises in the same condition as at the time of handing over the possession by them and they were forced to carry out repair work and adjusted Rs.40,000/- amount for repairs required to be undertaken by their client from the security deposit and in good faith and based on the plaintiff assurance reconciliation will done shortly, they have transferred Rs.15,00,000/- through RTGS to the plaintiff. Now the plaintiff is liable to pay Rs.4,79,052/- and the plaintiff in spite of repeated request and demand is avoiding its liability and filed the instant suit in a frivolous grounds for the sake of dispute and admitted para 7 of the plaint that the lease deed was in force up to 31.05.2011 and they have executed an amendment to the lease deed dated 09.05.2008 on 26.08.2011 amending the monthly rental of Rs.1,89,000/- and the rent for the month of September 2011 was at Rs.2,10,600/- and the revised rent was given effect from 01.10.2011 onwards and the lock in period was maintained at 36 months from 01.10.2011 with an option to terminate the agreement by serving 90 days notice by either of the party and alleged that the plaintiff has given intimation to them about termination of lease deed with effect from 30.06.2015 and in terms of the lease deed, the plaintiff has demanded for refund of 10 O.S.No.4328/2018 security deposit in turn they have refunded an amount of Rs.15,00,000/- by retaining balance amount of Rs.4,79,052/- and denied the plaintiff claim has been sent number of email reminding them for refund of balance amount of Rs.6,60,000/- and they have not bothered nor any possible reply to the plaintiff and the plaintiff has to strict proof of the same and the plaintiff has failed to serve the statutory notice period of 90 days as per the lease agreement and denied para 9 of the plaint that they were liable to pay the interest @ 18% on the balance amount of Rs.6,06,000/- which is payable by them to the plaintiff and the plaintiff has to strict proof of the same and there is no cause of action to file the suit against them and the plaintiff has not approached the court with clean hands and the suit of the plaintiff is not maintainable in view of the arbitration clause in the lease agreement which taken place in between them and the court fee which paid by the plaintiff is incorrect and prays for dismiss the suit.
8. On the basis of pleadings of the parties, my predecessor has framed the following:
11 O.S.No.4328/2018
ISSUES 1 Whether the plaintiff firm proves that the defendants are liable to pay Rs.9,33,240/- along with interest? If so, interest at what rate? 2 Whether the defendants prove that the Court fee paid by the plaintiff is not proper and sufficient? 3 Whether the defendants prove that the suit of the plaintiff is not maintainable and is liable to be dismissed in view of pleadings at Para 14 of their written statement ?
4 To what relief the plaintiff is entitled to? 5 What order or decree?
9. The plaintiff in order to prove its plaint averments has examined its authorized representative as P.W.1 and got marked documents as Ex.P.1 to P.8 and the plaintiff has not examined any witness in its favour. The defendants in order to prove their case, the defendant No.3 has been examined as D.W.1 and got marked the documents as Ex.D.1 to D.4 and they have not examined any witness on their behalf.
10. Heard the arguments on both side.
11. My findings to the above issues are as under:
Issue No.1: In the Affirmative;
Issue No.2: In the Negative;12 O.S.No.4328/2018
Issue No.3: In the Negative;
Issue No.4: In the Affirmative;
Issue No.4: As per the final order for the following;
REASONS
12. ISSUE NO.1 & 3: These issues are interrelated to each other, in order to avoid repetition of facts and materials, these issues are discussed together, as the plaintiff being the private limited company incorporated under the Companies Act approached the court on the ground that at the inception of the lease agreement had paid Rs.21,06,000/- as interest free refundable security deposit and after the lease period has vacated the schedule premises and requested the defendants for refund of the security deposit, but the defendants were refunded only an amount of Rs.15,00,000/- in stead of Rs.21,06,000/- in spite of repeated request and demand they did not refund the balance amount of Rs.6,06,000/-, even after expiry of 3 years they did not refund the said amount, thereby the defendants not only liable for refund of balance amount of Rs.6,06,000/- but also liable for interest @ 18% p.a. thereby the plaintiff has filed the instant suit against the defendants.
13. The learned counsel for the plaintiff while canvassing his arguments has submitted that the plaintiff has filed the instant 13 O.S.No.4328/2018 suit against the defendants for recovery of Rs.9,33,214/- with interest @ 18% p.a. as the plaintiff who was in search of commercial premises to carry out its business activities and found the premises which belongs to the defendants, thereby lease agreement was taken place in between the plaintiff and the defendants and fixed rent of Rs.2,10,600/- per month and in terms of said agreement interest free refundable security deposit was agreed to be paid to the defendants of Rs.21,06,000/- and subsequently amended to the lease deed was taken place in between the plaintiff and the defendants. By virtue of that amendment to the lease deed the monthly rent has been reduced and after vacating the premises, the defendants did not refund the entire security deposit of Rs.21,06,000/- in spite of repeated request and demand however the defendants were refunded an amount of Rs.15,00,000/- and they did not pay the balance amount of Rs.6,06,000/- in spite of repeated request and demand even after lapse of 3 years from the date of termination of the lease, thereby the defendants not only liable to refund Rs.6,06,000/- but also liable to pay the interest @ 18% p.a. from 30.06.2015 to 20.06.202018, though the defendants have taken up the contention that the plaintiff has paid only Rs.19,03,000/- towards security deposit in stead of Rs.21,06,000/- but nothing is 14 O.S.No.4328/2018 placed on record to show that the plaintiff had paid only Rs.19,03,000/- instead of Rs.21,06,000/-, but the materials on record reflects the plaintiff had paid Rs.21,06,000/- as security deposit and the defendants were taken up the contention that the plaintiff has not given 90 days notice for termination. When the plaintiff has vacated the premises after expiry of lease period, question of issue notice to the defendants for 90 days does not arise. When the defendants were not refunded the amount which paid by the plaintiff, to recover the said amount has filed the instant suit and the plaintiff has proved its case through oral and documentary evidence and prays for decree the suit.
14. Per contra, the learned counsel for the defendants in his arguments has submitted that the suit which filed by the plaintiff is not maintainable in law or on facts, since the plaintiff has not issued a notice of 90 days in view of Sec.106 and 107 of the T.P. Act and the suit itself is pre-mature, since the plaintiff has not complied the statutory notice, as per the lease agreement which taken place in between the plaintiff and the defendants and there is a arbitration clause in the agreement in which it is clear any dispute arises in between the plaintiff and the defendants, they have to opt for arbitration not the suit, on this ground also the 15 O.S.No.4328/2018 suit of the plaintiff is not maintainable and the suit which filed by the plaintiff based on the unregistered lease agreement and without payment of duty and penalty the said document cannot be looked into and the stamp duty has to be collected from the plaintiff and the plaintiff has not placed any materials to show about the payment which made for Rs.21,06,000/- as alleged in the plaint, though the defendants were sought the amount for adjustment of the refundable amount but they did not sought any counter claim against the claim of the plaintiff and the defendants were placed the materials to show that the plaintiff is not entitled the relief as prayed for and prays for dismiss the suit with cost.
15. The plaintiff in order to prove the plaint averments has examined its authorized representative as pw1, who filed his affidavit as his chief examination by reiterating the plaint averments stating that the plaintiff is the private limited company incorporated under the Companies Act and the defendant is also Private Limited company incorporated under the Companies Act and the plaintiff was in search of Commercial premises to carry out its business activities and selected Commercial premises which belongs to the defendants, who are the owners in 16 O.S.No.4328/2018 possession and enjoyment of the said premises and they were also agreed to lease the said premises in its favour. Thus they entered into lease agreement on 09.05.2008 and defendants were agreed to provide the exclusive use of the said property and the possession has been handed over in its favour on 01.06.2008 and the lease deed was came into force on 01.06.2008 and the lease was initially for a period of 36 months commencing from the lease commencement date with a minimum period of stay of 24 months with an option to terminate the agreement after the minimum commitment period and by service of 90 days prior written notice and the rent was fixed for Rs.2,10,600/- computed @ Rs.78/- per sq.ft and subject to the annual escalation and as per the lease agreement agreed to pay free refundable security deposit of Rs.21,06,000/- and electronically transferred an amount of Rs.10,53,000/- to the bank account of the defendant on 09.05.2008 and the balance amount of Rs.10,53,000/- was also transferred to the defendant's account in the same month, in all transferred an amount of Rs.21,06,000/- to the Bank account of the defendant and the same has been acknowledged by the defendants and the defendants were executed amendment to the lease deed and monthly rent has been reduced as Rs.1,89,000/- instead of Rs.2,10,600/- from 01.10.2011 on wards for a period of 17 O.S.No.4328/2018 36 months and intimation has been given to the defendants about termination of the lease deed with effect from 30.06.2015 and the defendants were refunded an amount of Rs.15,00,000/- and they did not refund the balance amount of Rs.6,06,000/- inspite of repeated request demand and E-mail reminders. Now the defendants are due a sum of Rs.9,36,240/- with interest @18% per annum.
16. The PW.1 in his cross examination has admitted the instant suit has been filed based on the Ex.P.1 & Ex.P.2 and prior to filing of the suit got issued a legal notice to the defendants through the advocate and pleaded ignorance about the reply which issued by the defendants and admitted notice has not been issued to the defendants before handing over the premises, but sent a mail and conducted the meeting with the defendants and after completion of the agreement period vacated the premises and denied without intimation nor notice vacated the premises, thereby the premises kept vacant for 6 months, for which the defendants were sustained a loss and admitted they have paid the advance in two parts but denied in the second part payment have paid less amount of Rs.1,00,000/- and admitted the defendants have paid Rs.15 Lakhs through RTGS. 18 O.S.No.4328/2018
17. The defendants in order to prove their defence the Defendant No.3 has filed his affidavit as his chief examination as DW1 by reiterating the contents of the written statement, stating that they entered into lease agreement on 09.05.2008 with the plaintiff and possession has been delivered to the plaintiff on 01.06.2008 and the rent was fixed @ Rs.2,10,600/- and the plaintiff has agreed to pay interest free refundable security deposit of Rs.21,06,000/- but paid only Rs.19,03,000/- towards security deposit and executed amendment to the lease deed and reduced the rent to Rs.1,89,000/- per month. The plaintiff without giving prior notice vacated the premises on 07.07.2015, thereby the plaintiff is liable to pay an amount of Rs.4,79,052/-. The DW.1 in his cross examination has admitted as per Ex.P.1 the plaintiff supposed to pay Rs.21,06,000/- instead has paid Rs.19,03,000/- and they have not produced any document to show that they have demanded balance amount of Rs.1,03,000/- towards security deposit and they have not produced the audit report to show the Auditor pointed out the balance amount of Rs.1,03,000/- and denied the plaintiff has paid Rs.21,06,000/- as security deposit and admitted that the Ex.P.1 clause 14.1 is not empowers to deduct the rent in lieu of prior notice and as per Ex.P.2 the modification rent is applicable from 01.10.2011 to 01.10.2014 19 O.S.No.4328/2018 and they have not produced any document to show that they have spent Rs.40,000/- towards white wash and they denied the plaintiff is not liable to pay any amount.
18. It is an admitted fact the plaintiff has filed the instant suit against the defendants for recovery of Rs.9,33,240/- with interest @ 18% p.a. from the date of suit till its realization on the ground that he had paid Rs.21,06,000/- towards interest free refundable security deposit as agreed in terms of the lease agreement and after vacating the premises, the defendants did not refund the said amount, however they have refunded only Rs.15,00,000/-, but they did not refund balance amount of Rs.6,06,000/-, but whereas the learned counsel for the defendants while canvassing his arguments has submitted the plaintiff has filed the instant suit against the defendants based on the unregistered lease deed, thereby the suit itself is not maintainable.
19. It is an admitted fact the plaintiff in para 4 and 5 has clearly stated about the search of commercial premises and the lease agreement which taken place in between them for which the defendants in their written statement have categorically admitted that the facts which alleged in para 4 and 5 are true and 20 O.S.No.4328/2018 correct. Therefore, admitted facts need not be proved in view of Sec.58 of the Indian Evidence Act which reads like this:
58 Facts admitted need not be proved. --No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
The above provision is very much clear, no fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. So, the defendants have admitted the para 4 and 5 in respect of the lease agreement which taken place in between the plaintiff and the defendants.
20. The learned counsel for the defendants has much argued that the plaintiff had not paid Rs.21,06,000/- but paid only Rs.19,03,000/-. It is an admitted fact the plaintiff in para 6 has clearly stated that he had paid Rs.21,06,000/- towards interest free refundable security deposit and has electronically transferred an amount of Rs.10,53,000/- to the bank account of the 21 O.S.No.4328/2018 defendants on 09.05.2008 and also transferred an amount of Rs.10,53,000/- to the defendants account on the same month but where as the defendants in para 5 of their written statment have admitted that initially the rent was fixed at Rs.2,10,600/- and in terms of the agreement the interest free refundable security deposit was agreed to be paid by the plaintiff to them of Rs.21,06,000/- but the reasons best known to the defendants have not denied the averments of the plaint which pleaded by the plaintiff in para 6, as the plaintiff in para 6 has clearly stated the mode of payment and the amount which paid of Rs.21,06,000/- to the defendants. Thus this court drawn its attention on Order 8 Rule 5 of CPC which reads like this:
5. Specific denial.
(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
FOR COMMERCIAL COURTS-
"Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability."
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to 22 O.S.No.4328/2018 pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
The above provision is very much clear every allegation of the fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability and it is not the case of the defendants that they are the disable persons. So one thing is clear when the plaintiff made an allegation against the defendants for payment of security deposit of Rs.21,06,000/- it is the bounden duty of the defendants have to denied the same in view of the provision which referred above. When the defendants have not disputed about the amount which alleged in para 6 of the plaint shall be taken to be admitted.
23 O.S.No.4328/2018
21. It is an admitted fact the defendants after para 5 of their written statement have taken up the contention in para 6 that the plaintiff actually paid Rs.19,03,000/- towards security deposit and drawn the court attention on the document which marked as Ex.D.1. On perusal of the Ex.D.1 dated 07.05.2015 mentioned NEFT of Rs.19,03,460/- but it is not the case of the plaintiff that he has sent an amount of Rs.19,03,460/- by way of NEFT on 07.05.2015, but it is the specific case of the plaintiff that he has sent an amount of Rs.10,53,000/- through electronically to the bank account of the defendants on 09.05.2008 and the balance amount of Rs.10,53,000/- has been transferred to the defendants account in the same month and it is not the case of the plaintiff that he has transferred an amount of Rs.19,03,460/- through RTGS. Therefore, the document which relied by the defendants marked as Ex.D.1 will not help the defendants to disprove the para 6 of the plaint and moreover, the defendants have not disputed nor denied para 6 of the plaint in view of the provision which stated supra. So, according to the defendants they have received only Rs.9,03,460/- as security deposit from the plaintiff, but in the written statement have taken up the contention that they have received Rs.19,03,000/-. So, defendants having the special knowledge that they have received 24 O.S.No.4328/2018 only Rs.19,03,000/-. Thus the burden on the defendants to prove the said aspect in view of Sec.106 of the Indian Evidence Act which reads like this:
Section 106 in The Indian Evidence Act, 1872
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
The above provision is very much clear burden of proving the fact, especially within the knowledge is on the defendants, though the defendants have drawn the Court attention on the Ex.D.1, but the defendants have failed to establish the facts which pleaded through oral and documentary evidence. Therefore, the arguments which advanced by the learned counsel for the defendants on this aspect holds no water.
22. The learned counsel for the defendants while canvassing his arguments has much argued that the suit of the plaintiff is not maintainable as there is an arbitration clause and 25 O.S.No.4328/2018 jurisdiction of the Civil Court is ousted. Admittedly, the plaintiff has filed the instant suit on 19.06.2018, in response of the suit summons the defendants have been appeared through their respective counsel and the defendants were filed their written statement on 30.01.2019. The defendants were filed the application under Sec.8 of the Arbitration and Conciliation Act on 15.04.2021 on the ground that there is arbitration clause in the lease agreement which taken place in between the plaintiff and the defendants and the suit is not maintainable. Thus this court drawn its attention on Ex.P.1 which is the lease deed dated 09.05.2008 on clause 18. So, for the proper appreciation it is necessary for reproduction which reads like this:
18. DISPUTE RESOLUTION.
18.1 This deed shall be governed in all respects by the laws of the Republic of India. All disputes arising in connection with this Deed shall be resolved through arbitration. The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and the venue of arbitration shall be Bangalore, India.
18.2 The arbitration proceedings shall be conducted by a sole arbitrator to be selected by the Lessor from a list of three names submitted by the Lessee. The proceedings of arbitration shall be conducted in the English language. The award of the arbitrator/s shall be final and binding upon the parties.26 O.S.No.4328/2018
The above clause which referred above is very much clear any dispute arises in connection with the lease deed shall be resolved through arbitration. Admittedly, the very defendants have filed the application to refer the parties to the arbitration as per I.A.IV and the said application was came to be rejected on 03.08.2021, but the reasons best known to the defendants have not challenged the order which passed by this court on I.A.IV under Order 8 of the Arbitration and Conciliation Act which remains unchallenged as the defendants were filed the said application when the case was set down for defendants evidence and the defendants were not filed the said application before filing of the written statement, but they have filed the application when the case was set down for defendant evidence. Now the counsel for the defendants cannot argue on the point which already decided by this court. Therefore, the arguments which advanced by the learned counsel for the defendants on this aspect holds no water.
23. The learned counsel for the defendants while canvasing his arguments has much argued that the documents which are marked as Ex.P.1 and P.2 are the lease deed and amendment to the lease deed, cannot be looked into and direct the plaintiff to pay the duty and penalty as those documents are unregistered 27 O.S.No.4328/2018 documents. Thus this court drawn its attention on Sec.17 of the Indian Registration Act which reads like this:
17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
24 [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the 25 [State Government] may, by order published in the 26 [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
27 [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] 28 O.S.No.4328/2018 (2) Nothing in clauses (b) and (c) of sub-section (l) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) 28 [any document other than the documents specified in sub- section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court 29 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding]; or
(vii) any grant of immovable property by 30 [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or 31 [(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; 29 O.S.No.4328/2018 or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. 32 [Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. State Amendments Andhra Pradesh: In section 17,
--
(a) in sub-section (1),--
(i) for clause (d) the following shall be substituted, namely:--
"(d) leases of immovable property;"
(ii) after clause (e) but before the proviso, the following clauses shall be inserted, namely:-- "(f) any decree or order or award or a copy thereof passed by a civil court on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed produced by the plaintiff where such decree or order or award purports or operate to create, declare, assign, limit, extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property; and
(g) agreement of sale of immovable property of the value of one hundred rupee and upwards;"
(b) in sub-section (2),--
(i) in clause (v), for the words "any document not in itself creating", the words "any document except an agreement of sale as mentioned in clause (g) of sub-section (1) not in itself creating", shall be substituted,
(ii) in clause (vi), for the words "any decree or order of a court", the words "any decree or order of a court, not being a decree or order or award falling under clause (f) of sub-section (1)", shall be substituted,
(iii) the Explanation shall be omitted. [Vide Andhra Pradesh Act 4 of 1999 (w.e.f. 1-4-1999)]. Gujarat: In section 17,--
(i) in sub-section (1), after clause (a), insert as under:-- "(aa) instruments which purport or operate to effect any contract for transfer of any immovable property;"30 O.S.No.4328/2018
(ii) after sub-section (1), insert as under: "(1A) The provisions of section 23 shall apply to an instrument referred to in clause (aa) of sub-section (1) and executed before the commencement of the Registration (Gujarat Amendment) Act, 1982 as if in that section for the words "from the date of its execution" the words, figures and letters "from the 1st March, 1982" has been substituted."
(iii) in sub-section (2), delete Explanation. [Vide Gujarat Act 7 of 1982, sec. 2 (w.e.f. 18-12-1981)]. Kerala: In sub-section (2) omit clauses (ix) and (x). [Vide Kerala Act 7 of 1968, sec. 2 (w.e.f. 22-2-1968)]. Maharashtra: In sub-section (2), in clause
(x),-- (a) after the words and figures "Agriculturists' Loans Act, 1884", insert "or under the Bombay Non-Agriculturists' Loans Act, 1928";
(b) for the words "under that Act", substitute "under either of those Acts". [Vide Maharashtra Act 19 of 1960, sec. 2 (w.e.f. 24- 10-1960)]. Pondicherry: In sub-section (3), for the words "the first day of January, 1872", substitute the words "the 9th day of January, 1969". [Vide Pondicherry Act 17 of 1970, sec. 2 (w.e.f. 1-11-1970)]. Rajasthan: In section 17(2) at the end of clause (xii), substitute "or", insert clause (xiii) as under: "(xiii) any instrument referred to in sub-section (5) of section 89." [Vide Rajasthan Act 16 of 1976, sec. 2 (w.e.f. 13-2-1976)].
(a) in sub-section (1), after clause (e) and before the proviso, the following clauses shall be added, namely:-- "(f) agreement to sell immovable property possession whereof has been or is handed over to the purported purchaser;
(g) irrevocable power of attorney relating to transfer of immovable property in any way;" and
(b) in sub-section (2), the existing Explanation shall be omitted. [Vide Rajasthan Act 18 of 1989, sec. 2 (w.e.f. 18-9-1989)]. Tamil Nadu: In section 17, in sub-section (1), after clause (e), the following clause shall be added, namely:-- "(f) instruments of agreement relating to construction of multi unit house or building on land held by several persons as referred to in clause
(i) under Article 5 of Schedule I to the Indian Stamp Act, 1899 (2 of 1899)." [Vide Tamil Nadu Act 38 of 1987, sec. 3 (w.e.f. 1-1- 1988)]. Uttar Pradesh: In section 17,--
(a) in sub-section (1)--
(i) in clauses (b) and (e) omit the words "of the value of one hundred rupees and upwards",
(ii) after clause (e), insert as under-- "(f) any other instrument required by any law for the time being in force, to be 31 O.S.No.4328/2018 registered",
(iii) Omit proviso.
(b) in sub-section (2)--
(i) in clause (v), after the words "any document" occurring in the beginning, insert the words "other than contract for sale", and omit the words "of the value of the one hundred rupees and upwards",
(ii) omit Explanation.
(c) in sub-section (3), after the words "by a will", insert the words "and an instrument recording adoption of a child executed after the first day of January, 1977". [Vide Uttar Pradesh Act 57 of 1976, sec. 32 (w.e.f. 1-1-1977)]. COMMENTS
(i) An instrument of gift of immovable property requires registration under this Act, whatever be the value of the property; Charan v. Sucha, (1921) 4 Lah LJ 7.
(ii) The words 'create', 'limit' or 'extinguish' and 'right', 'title' or 'interest' imply a definite change of legal relation to the property by an expression of will embodied in the document. The word 'declare' is ejusdem genesis with the words 'create', 'assign' or 'limit'. It implies a declaration of will, not a mere statement of a fact; Sakharan v. Madan, (1881) 5 Bom 232 approved by Privy Council in Bageshwari Charan v. Jagarnath Kuari, (1931) 59 IA 130, wherein it stated: "The distinction is between a mere recital of a fact and something which in itself creates a title." When it is necessary to determine whether an instrument other than a deed of gift purports or operates to create an interest of the value of Rs. 100 or upwards in immovable property within the meaning of section 17(1)(b) the test of value is the consideration stated in the instrument; Nana v. Anant, (1877) 2 Bom 353. A deposit of title deeds with the creditor by the debtor with the intent to create a security implies in law a contract between the parties to create a mortgage and no registered instrument is required under section 59 of the Transfer of Property Act as in other case of mortgage. But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential in the creation of the mortgage. In such a case the document which constitutes the bargain regarding security requires registration under section 17 of the Act as a non-testamentary instrument creating interest in immovable property where the value is Rs. 100 or 32 O.S.No.4328/2018 upwards; United Bank of India Ltd. v. Lakhram Sonaram & Co., AIR 1965 SC 1591. An instrument of partition of immovable property requires registration as it declares an interest in immovable property provided, however, the value of the interest so declared is Rs. 100 or upwards; Siromoni v. Hemkumar, AIR 1968 SC 1299. But a writing which merely states that there has in time past been a partition is not a declaration of will but a mere statement of fact and it does not require registration; Venkataraju v. Yudhkondalu, AIR 1958 AP 147.
(iii) The term 'consideration' used in this clause is a technical term. It implies that the person to whom the money is paid himself declares, limits or extinguishes his interest in immovable property in consideration of such payment; Shidlingapa v. Chenbasapa, (1819) 4 Bom 235. A lease for one year containing an option to the tenant to revenue for a further period of one year or any other term is not a lease for a term exceeding one year and does not requires registration under this clause; Boyd v. Kreig, (1890) 17 Cal 548 dissenting from; Bhobani v. Shibnath, (1886) 13 Cal 113. A lease for the life of the lessee is a lease for a term exceeding one year as it entitles the lessee to hold for more than one year if he lives so long. It is not a lease terminable at the end of a year or at the option of the lessor. It therefore requires registration; Parstrotam v. Nana, (1893) 18 Bom 109.
(iv) Sub-section 2(i) of section 17 merely provided that nothing in sub-section 1(b) applied to a composition deed, but that did not mean that if a document required registration under another enactment, it was valid without registration; Govind Ram v. Madan Gopal, (1944) 721.A 76: AIR 1945 PC 74.
(v) A consent decree purporting to create a gift requires registration under section 17(1)(a) and is not exempt from registration under section 17(2)(vi); Kauleshwari v. Surajnath Rai, AIR 1957 Pat 456.
(vi) The only test under the present clause is whether the receipt purports to extinguish the mortgage. If it does, it requires registration, but not otherwise. A receipt for payment of money under a mortgage (other than an endorsement on a mortgage-deed) issued by a mortgage mentioning not only the payment of the full mortgage amount but also the extinction of mortgage requires registration; Gurdial Singh v. Kartar Singh, AIR 1964 Punj 141. A deed of adoption as distinguished from an authority to adopt does not require registration; Vishwanth 33 O.S.No.4328/2018 Ramji v. Rahibai, AIR 1931 Bom 105: 128 IC 901.
The above provision is very much clear lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent, it requires compulsory registration. Admittedly the documents which taken place in between the plaintiff and the defendants are the unregistered documents, as the Ex.P.1 is itself reflects the period of lease has been mentioned as 36 months as per clause (2). So, if the 36 months is taken into consideration it exceeds one year, it requires compulsory registration in view of the provision which referred above. But the defendants have not disputed about Ex.P.1 and P.2 which taken place in between them. Even the defendants have not raised any objection while marking of those documents. On the ground the said documents are the unregistered documents it cannot be marked unless payment of duty and penalty.
24. Now the question arises whether this court can recall those documents which are marked without any objection and when the parties were proceeded the case. Thus this court drawn its attention on Sec.35 of the Karnataka Stamp Act 1957 which reads like this:
34 O.S.No.4328/2018
35. Admission of instrument where not to be questioned.- Where an instrument has been admitted in evidence such admission shall not, except as provided in section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped The above provision is very much clear, when the instrument is already admitted in evidence, such admission shall not be called at any stages of proceedings in the suit. Once the document has been marked as an exhibit in the case and trial has been proceeded all along on the footing that the document was an exhibit in the case and objection has not been raised and if the objection has been raised in a later stage it cannot be taken into consideration.
25. In the instant case also the learned counsel for the defendants while marking those documents has not raised any objection. Even both parties were proceeded all along. When the matter was set down for arguments, the learned counsel for the defendants has raised the objection regarding Ex.P.1 and P.2. Therefore, the arguments which advanced by the learned counsel for the defendants holds no water.
35 O.S.No.4328/2018
26. It is an admitted fact Ex.P.1 and P.2 are the unregistered documents. Thus this court drawn its attention on Sec.49 of the Indian Registration Act which reads like this:
49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 54 [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 55, 56 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] State Amendment Uttar Pradesh: In section 49,--
(i) in the first paragraph, after the words "or by any provision of the Transfer of Property Act, 1882" insert the words "or of any other law for the time being in force",
(ii) substitute clause (b) as under: "(b) confer any power or create any right or relationship, or",
(iii) in clause (c), after the words "such power", insert the words "or creating such right or relationship",
(iv) in the proviso, omit the words "as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or". [Vide Uttar Pradesh Act 57 of 1976, sec.
34 (w.e.f. 1-1-1977)].
The above provision is very much clear about effect of non registration of documents which required to be registered and also to consider any collateral transactions. 36 O.S.No.4328/2018
27. In the instant case, it is not the case of the defendants that no lease agreement was taken place in between them, but it is the specific case of the defendants that the plaintiff has not issued a 90 days notice prior to vacating the premises and the plaintiff has not paid security deposit of Rs.21,06,000/-, but has paid only Rs.19,03,000/- but the defendants have not placed any materials on record to substantiate their defence.
28. Now the question arises about whether the burden of proof lies on the plaintiff or the defendants to establish that he had paid Rs.20,06,000/- to the defendants as interest free security deposit. Thus this court drawn its attention on Sec.101 of Indian Evidence Act which reads like this:
101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. COMMENTS Joint family property Merely because some of properties continue to stand in the name of plaintiff that by itself cannot lead to any conclusion that the property purchased by any one member of the family would necessarily be a part of joint family property and when 37 O.S.No.4328/2018 evidence shows that the person who has purchased property had been engaged in an independent business for a sufficient long period; Baban Girju v. Namdeo Girju Bangar, AIR 1999 Bom 46. Reasonable proof of ownership In absence of any reasonable proof that defendant was the actual owner of the property, and plaintiff was only a name given does not prove that respondent was owner and plaint maker was only a name given to the property; Rama Kanta Jain v. M.S. Jain, AIR 1999 Del 281. What to be proved by prosecution It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court on its own make out a new case for the prosecution and convict the accused on that basis; Narain Singh v. State, (1997) 2 Crimes 464 (Del).
The above provision is very much clear the burden of proof lies on the plaintiff Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. In the instant case, non denial of the averments of the plaint by the defendants is very much clear the plaintiff had paid an amount of Rs.20,06,000/- as interest free security deposit to the defendants and moreover the D.W.1 in the cross-examination has admitted that as per Ex.P.1, the plaintiff suppose to pay Rs.21,06,000/- but he has stated the plaintiff instead of pay Rs.21,06,000/- has paid only Rs.19,03,000/- and they have demanded the plaintiff to pay the balance amount of Rs.1,03,000/-, but they have not produced any document to show that they have demanded the plaintiff for payment of balance of Rs.1,03,000/- and moreover Ex.P.2 no 38 O.S.No.4328/2018 where reflects the plaintiff was due for security deposit of Rs.1,03,000/-, if that is so the Ex.P.2 would have reflects that the plaintiff is due a sum of Rs.1,03,000/- towards balance security deposit. So, one thing is clear from the admission of the D.W.1 that the defendants have not produced any document to show that they have demanded the plaintiff for payment of balance security deposit. When the plaintiff has discharged its initial burden in view of Sec.101 of Indian Evidence Act, the burden shifts on the defendants in view of Sec.102 of the Indian Evidence Act to prove that they have received only Rs.19,03,000/- not Rs.20,06,000/-, but the defendants have not placed any materials to substantiate the same.
29. If at all the plaintiff had not paid an amount of Rs.20,06,000/- Ex.P.2 which is the subsequent document of Ex.P.1 reflects about non payment of Rs.20,06,000/- as interest free security deposit, but Ex.P.2 is silent about balance which alleged by the defendants. So, the defendants were utterly failed to prove the plaintiff had not paid Rs.20,06,000/-, but has paid only Rs.19,03,000/-. On the other hand, the plaintiff has placed not only the oral but also documentary evidence to show that has 39 O.S.No.4328/2018 paid Rs.20,06,000/- as interest free security deposit to the defendants in pursuance of the Ex.P.1.
40 O.S.No.4328/2018
30. The learned counsel for the defendants while canvassing his arguments has submitted that the plaintiff has not issued a 90 days notice prior to vacating the premises, thereby liable to pay Rs.4,79,052/- and the premises was not in the same condition as at the time of handing over the possession, thereby the defendants were spent Rs.40,000/- towards repairs, thereby sought for Rs.4,79,052/- which said to be payable by the plaintiff as alleged in para 9 of the written statement. Therefore, the burden on the defendants to place the materials to substantiate their defence, but nothing is placed on record to substantiate the same. Thus this court drawn its attention on the judgment of Hon'ble Supreme Court passed in Civil Appeal No.3873/2019 decided on 11.04.2019 in between Sevok Properties Ltd. Vs West Bengal State Electricity Distribution Company Ltd. In the said judgment a lease deed was taken place in between the plaintiff and the defendants and term of the lease was 15 years. Under the terms of the lease, the respondent took the possession of the land on rent and the dispute was arisen, thereby suit has been filed for eviction and suit was came to be decreed, against the said judgment the appeal has been filed before the High Court by an interim order dated 18.05.2006 the Division bench of the High Court directed 41 O.S.No.4328/2018 that the proceedings before the trial court for ascertainment of mesne profits in terms of order XX Rule 12 of the Code of Civil Procedure shall continue, but no final decree shall be drawn up without the leave of the Court. The execution proceedings were stayed subject to deposit of the arrears of rent. Following the order of the High Court the valuer submitted a report in regard to the valuation of the property and trial Court accepted the valuation on 07.09.2016. The order of the trial Court was challenged by the Respondent before the High Court, the petition was came to be dismissed on 01.05.2018 and order dated 14.11.2018 the High Court has set aside the decree for possession and in consequence directed that the suit instituted by the Respondent shall stand dismissed and held a lease of immovable property for a term exceeding one year can only be made by registered instrument, since the indenture of lease was unregistered, it was governed by the 1 st paragraph Sec.107 of the transfer of property act, the relationship between the parties in consequence be governed by the 2nd para of Sec.107, the tenancy shall therefore be deemed to be from month to month terminable by 15 days notice U/Sec.106 of the TP Act and in the absence of notice U/Sec.106 terminating the relationship of the lessor and lessee between the parties the suit was not maintainable, thus 42 O.S.No.4328/2018 appeal has been filed before the Hon'ble Supreme Court and Hon'ble Supreme Court held the indenture of lease being unregistered the contents of the instrument are in admissible in evidence, however it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24.09.1996, thereafter the position of the appellant is of a tenant at sufferance in which event no notice U/Sec.106 was necessary and after expiry of the lease period under the lease agreement the plaintiff is no more tenant. So, question of issue notice under Sec.106 of the T.P. Act does not arise and the defendants have not admitted that the plaintiff has been continued in the possession even after expiry of the lease period till filing of the suit. If that is so Sec.116 of TP Act would have applicable, then serve the notice under Sec.106 of the TP Act is necessary. As the defendants in the written statement itself have admitted the plaintiff was decided to vacate the said premises on 07.07.2015. Admittedly, the plaintiff has filed the instant suit in the year 2018, almost after expiry of 3 years. So, question of tenant holding over within the meaning of Sec.116 of the TP Act does not arise. So, once the plaintiff has already vacated the premises after expiry of the lease period question of issue notice under Sec.106 of the TP 43 O.S.No.4328/2018 Act in view of the judgment which referred above does not arise. Therefore, question of issue 90 days notice as submitted by the learned counsel for the defendants does not arise and there is no clause either in the Ex.P.1 nor in Ex.P.2 for deducting the amount as claimed by the defendants.
31. If at all the plaintiff was continued in the schedule premises even after expiry of the lease period its possession over the schedule premises is unlawful possession, then the defendants are entitle the damages instead of rent from the plaintiff, but it is not the case of the defendants that they are entitled the damages from the plaintiff. It is the specific case of the defendants were entitle to deduct the amount which claimed out of the balance security amount which is not permissible under Ex.P.1 and P.2. Therefore, the defendants are liable to pay an amount of Rs.6,06,000/- which was paid by the plaintiff as security deposit to the defendants.
32. Admittedly, the defendants in their written statement itself have admitted the plaintiff has vacated the premises in the year 2015 itself and the emails which placed on record marked as Ex.P.3 to 7 are very much clear the plaintiff demanding the 44 O.S.No.4328/2018 defendants for refund of the security deposit which paid by the plaintiff, but the defendants have not taken any steps to repay the balance security deposit amount. Therefore, the defendants were liable to pay the interest @ 18% p.a. Hence, I am of the opinion that the Issue No.1 is answered as Affirmative and issue No.3 is answered as Negative.
33.ISSUE NO.2: The defendants in their written statement have taken up the contention the court fee which paid by the plaintiff is not proper and sufficient. It is an admitted fact the plaintiff has filed the instant suit for recovery of Rs.9,33,240/- for which the plaintiff has filed the valuation slip in which has shown the claim amount of Rs.9,33,240/-. So by virtue of Sec.7 of the Court Fee and Suit Valuation Act, the plaintiff has paid the proper court fee, but the reasons best known to the defendants have not placed any materials on record to show court fee which paid by the plaintiff is not proper nor sufficient. Hence, I am of the opinion that the issue No.2 is answered as Negative.
34. ISSUE NO.4: The plaintiff in the plaint itself has clearly stated that in terms of the lease agreement has paid refundable security deposit of Rs.21,06,000/- to the defendants, though the defendants have refunded amount of Rs.15,00,000/- out of the 45 O.S.No.4328/2018 security deposit, but they did not refunded balance amount of Rs.6,06,000/- in spite of repeated request and email reminders for which the plaintiff has proved its case through oral and documentary evidence. On the other hand, the defendants not only taken up the contention about the maintainability of the suit in view of the arbitral clause but also taken up the contention regarding non payment of proper court fee, but the defendants were utterly failed to prove their defence through oral and documentary evidence. On the other hand the plaintiff has proved its case through oral and documentary evidence. Hence, I am of the opinion that the Issue No.4 is answered as Affirmative.
35. ISSUE NO.5: In view of my findings to Issue No.1 to 4 as stated above, I proceed to pass the following;
ORDER The suit of the plaintiff is decreed with cost.
The defendants are liable to pay the decretal amount of Rs.9,33,240/- together with interest @ 18% p.a. from the date of suit till its realization. 46 O.S.No.4328/2018 Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected by me and then pronounced in the open court on this the 8th day of December, 2021) (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru City .
List of witnesses examined on behalf of plaintiff:
P.W.1 Arun Kumar List of witnesses examined on behalf of defendant:
D.W.1 Ramesh Mishra List of documents exhibited on behalf of plaintiff:
Ex.P.1 Original Lease Deed Ex.P.2 Amendment to the lease deed Ex.P.3 to 7 Email correspondence copy Ex.P.8 Authorization letter
List of documents exhibited on behalf of defendant:
Ex.D.1 Bank Statement
Ex.D.2 Authorization letter
Ex.D.3 Notice copy
Ex.D.4 Reply notice copy.
(P.J. Somashekara)
LXXXVIII Addl. City Civil & Sessions Judge,
(Exclusive dedicated Commercial Court),
Bengaluru City